Friday, July 31, 2015

LAS-ELC "Fair Play" Video

In the spirit of sharing helpful resources, this new video created by the gender equity team at Legal Aid Society-Employment Law Center is aimed at students and helps them understand Title IX's application to K-12 athletic programs. It also helps them understand their rights under California's Fair Play in Community Sports Act, which applies to municipal athletic programs that are outside the scope of Title IX.


For more on LAS-ELC's "Fair Play" initiative, see here.

Wednesday, July 29, 2015

Title IX Claim Dismissed in (Yet Another) Disciplined Student Case

A federal court in North Carolina is open to the possibility that Appalachian State University denied a male student procedural and substantive fairness by suspending him for 20 days for sexual assault before the hearing panel ultimately exonerating him on appeal. However, this does not constitute a violation of Title IX, the court ruled, because there is no allegation to support the claim that the university was biased against him because of sex.  In granting the university's motion to dismiss the plaintiff's Title IX claim, the court rejected the plaintiff's reliance on Yusef v. Vassar College, a 1994 decision and one of the only examples of a disciplined-student's Title IX claim surviving a motion to dismiss.  In that case, the plaintiff alleged that male students were "historically and systematically" found guilty when accused of rape, and the court found this allegation of bias sufficient.  But the court ruled that similar allegations do not satisfy today's higher standard for more specific pleading, which was imposed by two Supreme Court cases, Twombly and Iqbal, in 2007 and 2009, respectively.  In so doing, this court joins a long list of other courts who have rejected Title IX's applicability to disciplined-student cases. 

That said, the court was open to the plaintiff's arguments about procedural and substantive fairness as protected by the Constitution's due process clause.  Namely, the court acknowledged that the university's decision to hold a second hearing in the sexual harassment matter after the first hearing panel found him not responsible violated his right to procedural due process, as did the fact that he was provided less than 24 hours notice that a sexual harassment charge had been added to the hearing as well.  The plaintiff will be allowed to continue to litigate these claims, as well as his claim that the "arbitrary" decision of a university official to overturn an initial hearing panel's decision in his favor without any basis for doing so, was substantively unfair. 

(For the record, many of the plaintiff's other arguments about procedural fairness were in fact dismissed, including: the fact that he had a graduate student represent him while the complainant had a lawyer, the fact that the university did not tell him about potential witnesses that could have helped his case, the fact that the university excluded a potential witness who would have testified about the complainant's sexual history, the fact that the hearing panel included a member who had found against his co-respondent in a prior matter, and the fact that no one informed him of his right to have a separate hearing from that of his co-respondent.)

Decision: Tanyi v. Appalachian State University, 2015 WL 4478853 (W.D.N.C. July 22, 2015).   

Tuesday, July 28, 2015

Judge Dimisses Title IX Claim in Bathroom Case.

At a hearing in federal court yesterday, Judge Robert Doumar dismissed the Title IX claim filed by a transgender student against the public schools in Gloucester, Virginia. The student had alleged that the school district's policy of excluding him from the male restroom and facilities violated Title IX, arguing with the Department of Justice's support that sex discrimination has been broadly interpreted to encompass gender-related considerations as well, and thus ought to cover discrimination targeting a student because his gender does not match the sex he was assigned at birth.

From the sound of it, the judge did not give the Title IX argument much of a chance.  According to this article describing yesterday's hearing, the judge announced his decision to dismiss the Title IX claim in the middle of the ACLU attorney's argument on behalf of the student, stating "your Title IX case is gone by the way....I decided that before we started."  He made this announcement without even giving the attorney from the Department of Justice, who had intervened on the student's behalf, an opportunity to present his arguments.

The judge went on to make some other confounding statements, including repeatedly characterizing transgender as a mental disorder -- which is not only insensitive and inaccurate, it completely misses the point about sex discrimination. He also took the opportunity of the DOJ attorney's eventual presentation (which was, by that point, futile) to grind an ax about the agency's agenda in unrelated matters. “Where the U.S is going scares me....It really scares me.” the judge reportedly said, bringing up the agency's policy of not strictly enforcing marijuana as another example of something his opposes. "Maybe I am just old fashioned,” he admitted before reportedly turning his contempt to Congress -- too quick to pass new laws, in his opinion -- and finally closing the hearing with the statement, "Oh well, things are changing."

It certainly sounds to me like a bizarre day in court.  But will the judge's odd behavior effect the outcome of the case?  It is rare that judicial decisions are overturned because of the judge's bias or impartiality, since courts require evidence of some specific connection between the judge and one of the parties, witnesses, or subject matter of the case. It is unlikely that a judge's insensitivity, breach of protocol, irrelevant tangents, and admission of being "old fashioned" will meet that standard. But if the judge's irrelevant considerations and failure to engage with the arguments presented are reflected in the order dismissing the claim, as his hearing demeanor might suggest, then his decision is certainly vulnerable to appeal on the merits. An appellate court does not have to defer to a lower court's interpretation of the law, and is less likely to agree with a decision that is not well-reasoned.

Monday, July 20, 2015

EEOC Ruling on Sexual Orientation Discrimination Could Influence Title IX Cases

Last week, the Equal Employment Opportunity Commission issued a ruling that asserted its jurisdiction under Title VII over an employee's case in which he alleged he was denied a promotion because of his sexual orientation. The Commission acknowledged that Title VII contains no express prohibition on sexual orientation-based discrimination. But it ruled that a complaint about discrimination because of one's sexual orientation is "necessarily" a complaint that the employer took sex into account, as is thus proper to consider under Title VII. Here is some of its reasoning:
Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. “Sexual orientation” as a concept cannot be defined or understood without reference to sex. A man is referred to as “gay” if he is physically and/or emotionally attracted to other men. A woman is referred to as “lesbian” if she is physically and/or emotionally attracted to other women.  Someone is referred to as “heterosexual” or “straight” if he or she is physically and/or emotionally attracted to someone of the opposite-sex.  It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and, therefore, that allegations of sexual orientation discrimination involve sex-based considerations.
The Commission continued to explain that if an employer fires a man for being in a relationship with another man, but would not fire a woman for being in a relationship with a man, that is treating the male employee differently because of his sex.  It's also a natural extension of the "sex stereotyping" theory because heterosexuality is a sex stereotype.

The EEOC's conceptualization of sexual orientation discrimination as entirely within the ambit of sex discrimination is a broader definition of sex discrimination than has been applied by most courts.  Courts are generally willing to accept that sex discrimination covers discrimination on the basis of an employee's gender-nonconforming appearance and behavior in the workplace, which may include (for example) claims by gay male employee targeted for feminine mannerisms, or a lesbian employee discriminated against for masculine appearance.  But the EEOC's recent interpretation goes beyond this and confirms that discrimination targeting the employee's sexual orientation per se  is actionable.


This decision is directly binding only on future enforcement decisions by the EEOC in the context of cases involving the federal government. But, the EEOC's interpretations are often influential on the courts that consider the meaning of sex discrimination under Title VII's application to the private sector, as well what it means as used in other statutes, like Title IX. Thus, even though it doesn't govern the education context, the EEOC's decision helps strengthen arguments by students or school employees who may have been excluded from participation, or fired, or denied admission, or harassed because of their sexual orientation, by giving courts and attorneys a roadmap of persuasive reasoning to follow.

FSU: Treating symptoms not changing cultures

They say that the first step to solving a problem is admitting you have a problem. So how does Florida State go about solving violent behavior among its student athletes? The football players are now banned from bars. The bars have not banned them--the coach has.

Jimbo Fisher, reports say, has told his players no more bars.

This is neither admitting to a problem nor solving one.

The directive was issued after a second FSU player was punished for assaulting a woman. Dalvin Cook was suspended from the team after he hit a woman outside of a bar. The first (?) incident resulted in quarterback De'Andre Johnson being kicked off the team after he hit a woman in a bar.

Bars are not the problem here. The problem is the culture at FSU and the precedent that has been set by the mishandling and outright denial of problems within athletics. I would suggest that the bar ban is simply treating the symptoms, but I don't even think bars are the symptom. As others have already noted, plenty of people go to bars--athletes, non-athletes, students, and others--without ever hitting women or anyone.

Counselors are also coming in, according to a statement by Fisher. This appears to be a treating of the symptoms, though arguably I do not know what the counselors will address or their methods and if there will some digging into the roots of these issues. Because as Fisher himself as already noted, student-athletes go to a lot of sessions about things like assault and drinking. Some of my male student-athletes (not at FSU) have reported being in workshops where they are taught how to interact with women. So is FSU not doing these things? Are they not doing them well enough? Or are they sending contradictory messages? Don't do this! (but if you do we may be able to get you off by ignoring the problem, keeping it out of the press, withholding evidence, questioning the reputation of your accuser in such a way that leads to her harassment, and assorted other methods.)

I think the counselors should be brought in for the staff, too.

Another matter: what will happen to De'Andre Johnson? Will he transfer--and when? (is he even still enrolled at the school?) Under the new SEC rule preventing transfers of student-athletes who have been punished for violence against women, he will not be headed to cross-state rival University of Florida or perennial powerhouses such as Alabama and Auburn. Johnson said he was provoked by the woman, alleging that she shouted racial epithets at him, but regrets his actions. This might be the opening to another spot at a non-SEC school. The second chance discourse. He had many offers from top football schools. Will one of them come back for him?

Will Cook be kicked off the team? He was a more highly touted recruit than Johnson. What is going to happen to this indefinite suspension? Do we have to wait for video evidence like the kind that caught Johnson hitting his victim? Not kicking him off the team for doing what appears to be the same thing might send a mixed message. Apparently President Thrasher addressed the football team and told them that playing for FSU is not a right but a privilege. Will some players receive more privileges than others?


Saturday, July 18, 2015

OCR and Fayetteville State Enter Resolution Agreement over Athletics Complaint

The Department of Education's Office for Civil Rights has reportedly entered into a resolution agreement with Fayetteville State University in North Carolina, resolving a Title IX complaint that alleged inequitable treatment of women's sports.  The complaint was filed by the parent of a former softball player whose chief concern was a disparity in access to the trainer and other medical care. The resolution agreement requires FSU to assess compliance with Title IX's requirement for equal treatment regarding equipment and supplies, scheduling for games and practices, travel and per diem allowance,opportunities for coaching and academic tutoring, assignment and compensation of coaches and tutors, provision of locker rooms, practice and competitive facilities, provision of medical and training facilities and services, provision of housing and dining facilities, and publicity. The university has a 2018 deadline to correct disparities revealed by the assessment. 
   
The complainant was pleased about the agreement but was also quoted as questioning why university officials "weren't making decisions [about compliance] all along?"  It seems she shares my frustration for this weak, generic version of Title IX enforcement that lets universities get away with avoiding compliance until a resolution agreement occurs.  Title IX regulations about equal treatment have been on the books since 1975. The time to "start" the process of compliance was forty years ago.

Also, the resolution agreement apparently does not address the disparity in the number of athletic opportunities for male and female students, at least, no mention of that appears in the article linked above.  This omission is noteworthy because according to public data, FSU's student body is 67% female, but women receive only 69 out of the university's 179 athletic opportunities -- under 39%.

Friday, July 17, 2015

Racial implications of the Chicago Public School District agreement

On Monday, I wrote about the agreement between the Chicago Public School District and OCR that will hopefully move to immediately increase the number of sport opportunities for girls in the district. The 10% gap between opportunities by sex and proportion of enrolled female students is equal to just over 6,000 spots.

What none of the coverage of the agreement mentioned was the huge (potential) racial impact of this agreement. This spring, The Boston Globe published an article about the discrepancy in sport involvement between white girls and girls of color focusing on Massachusetts were 27 percent of heavily minority schools (I did not see a definition of this categorization) had large gaps (also not definition) in athletic participation between boys and girls versus 6 percent of heavily white schools.Scholars have been talking about these gaps and disproportionate racial effect of Title IX for many years. Recent survey data show that across the country 40 percent of heavily minority schools have large participation gaps.

Chicago is clearly part of that statistic. Recent demographic information shows that African-American students comprise nearly 40 percent of the district and Hispanic students 45 percent. So when opportunities to play sports are being created for girls it should follow that these spots will be filled by minority girls. This is a positive given, of course, the known health and social benefits of sports.

My worry regarding Chicago, and potentially other similarly situated school districts, is that a reliance on prong three may have a disparate racial impact. It is true that the Chicago Public School District is seeking proportionality, but one of the provisions is that a certain number of schools must show compliance with only one of the prongs in the immediate future. The district will also be surveying students regarding their interests. But in heavily minority schools, there may be lots of unmet interests but also certain inabilities to participate based on situations which reflect the intersection of gender, class, and race. For example, cash-strapped schools across the country are instituting fees for sports. Students in poorer neighborhoods may not be able to afford such fees or a family may not be able to afford fees for both a son and daughter. (Yes, waivers based on income are sometimes available in pay to play situations, but they are not always taken advantage of due to the stigma of poverty and a host of other reasons.) In families where older children have care taking responsibilities for siblings and other family members, participation in sports may be desired but not possible. Girls in a family are more often called on in these situations.

In other words, Chicago, and really any school district interested in racial equity, must go beyond simply creating opportunities. There need to be structures in place to enure that girls with the desire to play are not facing additional impediments to participation.

Another Disciplined Student's Title IX Case Dismissed

I recently posted a round-up of disciplined-student cases in which courts rejected Title IX claims filed against universities by students accused and sanctioned for sexual assault.  Today there is another to add to that list. A male student sued the University of Massachusetts-Amherst challenging his expulsion for sexual assault.  He claims that the the sexual encounter he had with the complainant was consensual, but the Student Conduct Hearing Board determined that she was incapacitated by alcohol and did not consent, a finding -- along with the a sanction of suspension -- upheld on appeal.  The plaintiff alleges that the procedures employed by the university were unfair.  As the court put it,
Plaintiff points to difficulties getting information, deficiencies in the investigation, limits placed on his ability to cross-examine witnesses, the exclusion of some documentary evidence he wished to introduce, and the misuse of witness testimony by the hearing board. He also asserts the student member of the hearing board had a conflict due to an earlier internship within a criminal prosecutor's office. 
But, even though the court acknowledged that these allegation would be sufficient to raise questions about whether the outcome of his proceeding had been correct, the court found lacking any allegation that these procedural errors had occurred because of the plaintiff's sex.  Disparate treatment because of one's status as a student accused of assault is not the same thing as disparate treatment because of sex.  Nor did the plaintiff allege facts that could result in a Title IX violation based on selective enforcement, which occurs when a university sanctions members of one sex more harshly than the other for similar misconduct. 

The plaintiff had also attempted to bring state law claims (unspecified, but presumably breach of contract) but the court rejected them on grounds that the 11th Amendment protects states (including state universities) from being sued without their consent.

The plaintiff also apparently tried to argue in opposition to the university's motion to dismiss that his constitution right to due process had been violated.  But because the plaintiff had not included this claim in his original complaint, the court could not consider those arguments later in the case.  I was recently asked by a reporter why plaintiffs in disciplined-student cases continue to make Title IX arguments even when they are largely unsuccessful, and I said I suspect there is some attraction to that theory on a symbolic level.  It might be extra-satisfying for them to use the same weapon against the university that had resulted in their expulsion in the first place. But this attraction to Title IX seems to be harming disciplined-student plaintiffs who might have valid claims under other sources of law. If this plaintiff had not been so enamored of using a reverse discrimination argument, perhaps due process would not have been an afterthought?

Doe v. Univ. of Massachusetts-Amherst, 2015 WL 4306521 (D. Mass. July 14, 2015).

Wednesday, July 15, 2015

Court Rules UC San Diego Unfairly Sanctioned Student for Sexual Assault

A Superior Court judge in California recently invalidated the University of California at San Diego's decision to suspend a student for sexual assault after finding that the university denied the student a fair hearing and lacked the evidence to find him responsible. The student challenged the university's decision under a provision of California law that requires state agencies -- applicable as well to state universities -- to use fair procedures and reach evidence-based decisions. Because this is the Title IX Blog, I'm going to analyze the decision with particular attention to whether it creates a conflict between a university's obligation under Title IX to respond to sexual assault, and its other simultaneous obligation to protect the rights of a student who is accused.

Procedural errors. The judge found that the university unlawfully limited the plaintiff's right to cross-examine the primary witness against him, namely, the female student who had accused him of sexual assault.  According to the university's procedures, a student who is accused of sexual assault does not cross-examine the complainant directly, but rather, submits his questions to the chair of the disciplinary panel that is conducting the hearing, who asks the questions on behalf of the accused.  In this case, the accused student submitted 31 questions for possible cross-examination of the complainant, but the chair asked only 9 of them. 

Notably, the court's ruling on this issue does not conflict with a university's responsibilities under Title IX to effectively respond to sexual assault complaints.  The Department of Education's guidance is agnostic on the question of whether to permit cross-examination of witnesses and parties, only that the rights of both parties be the same in that regard.  And while the Department endorses the practice of conducting cross-examination through an intermediary like a hearing administrator, that practice itself was not the problem in this case. In fact, the court didn't seem to have a problem in general with the practice of weeding out questions "to prevent additional trauma to potential victims of
sexual abuse." It was just that, in this case, the chair took that too far and redacted a whole series of questions about ostensibly exculpatory text messages exchanged by the parties after the alleged assault.  In so doing, the university denied the plaintiff a meaningful opportunity to be present a material aspect of his defense.

Next, the court found that the plaintiff should have had the opportunity to cross-examine the investigator who prepared a report that was introduced at the hearing.  Because the investigator was not a witness at the hearing, the plaintiff had no opportunity to challenge the content of the report or counter the report's conclusion that he was guilty.  Again, this ruling does not create any conflicts with Title IX, which nowhere endorses denying students the right to challenge an investigators' findings. 

However, another problem the court had with the hearing was the fact that the committee allowed the complainant to testify against the plaintiff from behind a screen. This objection is less persuasive to me than the others, since the court's only rationale was that a screen was unnecessary because the plaintiff had not be hostile towards the complainant.  (The court also pointed out that a screen prevents the fact finder from evaluating facial expressions and non-verbal communication, which may be relevant to credibility.  However, there seemed to be some uncertainty, which the court did not resolve, about whether only the plaintiff could not see the complainant or whether the committee's view of her was blocked as well.)  In terms of Title IX, the Department of Education endorses (though it does not require) the practice of sequestering the complainant to spare her additional trauma of being in the same room as the person she is accusing of rape, and still having her participate "by using closed circuit television or other means." Schools, at least public schools in California, should be wary going forward of considering screens as such "other means."

Lack of evidence to support decision.  In addition to committing procedural errors, the university also failed to base its decision on "substantial evidence" as required by California law -- a standard of evidence which (despite word "substantial" in its name) only means "evidence that a reasonable mind might accept as adequate to support a conclusion."  If there is a difference between this standard and the preponderance standard required by the Department of Education's Title IX guidance, I believe it is a negligible one.  Yet, in this case, the court determined that such evidence was lacking.  Because the investigator's report was not subject to cross examination, it should have been excluded from consideration. Therefore, the complainant's hearing testimony was the only relevant evidence the committee should have considered, and the court viewed this testimony as ambivalent on the matter of consent.

Change of sanction with no explanation. The final error committed by the university was to respond to the plaintiff's appeal of the committee's decision to the Dean by increasing his sanction from one quarter to one year. There was no basis for this decision nor any explanation provided. It probably goes without saying, but of course a university is under no Title IX obligation to take a similar course of action.

In sum, I think this decision is important because it reminds institutions who are increasingly aware of their Title IX obligation to address sexual assault of their of their concomitant obligation to provide fair and meaningful hearings to students who are accused.  Not only for the sake of students who are accused, but victims and their advocates have a stake in the integrity of the process as well. It is possible to hold fair hearings and comply with Title IX and that is what colleges and universities should be striving to do. 

Louisiana Tech Removes Discriminatory Fee

Last week we posted about a challenge to Louisiana Tech practice of charging female students a fifty cent fee to fund the budget of the Association of Women Students.  By way of update, we now see that the fee has been discontinued.

A student senator filed a complaint with the Departments of Education and Justice, having taken on the fight on behalf of female constituents who objected to the fee.  The discriminatory nature of the fee was particularly galling because the university also pressured the AWS to spend its budget on improvement projects to benefit the campus as a whole, like campus lighting and golf-cart transit projects.

Monday, July 13, 2015

Chicago Public Schools making changes

In 2010, the National Women's Law Center named the Chicago Public School District as one of the worst offenders of Title IX (along with 11 other districts nationwide).

Last week, the district entered into an agreement with OCR that will add more opportunities in girls' sports. The district must now add opportunities in the majority of its 92 schools. The goal is to achieve proportionality by the 2018-19 academic year.

Some schools have further to go than others. The overall numbers from 2014 show an approximate 10% gap between enrollment and opportunities for girls. The numbers that truly paint the picture, however, are how many opportunities this gap encompasses. Twenty-five schools will need to add approximately 100 opportunities (per school!) to achieve proportionality. Lane Technical High School must add over 400. In total, though, the gap is equal to over 6,000 opportunities.

The district had tried to prove that they were meeting the interests and abilities of female students based on interest survey results of all students, but OCR determined that the low rate of response from girls was not proof of met interests. This decision reinforces to schools that to prove met interest, a serious and thoughtful process must occur.

Another positive message from the agreement: OCR refused to recognize the competitive dance and cheer teams that some schools attempted to count. Though this issue seems to have been well-documented, there are many schools--especially high schools--that continue to place their female-dominated dance and cheer teams in their Title IX numbers, despite OCR's statement in 2008 that activities which promote and support other sports cannot be counted.

OCR has placed various deadlines on the district. Though the ultimate goal is prong one compliance by 2019, 12 high schools must prove compliance with one of the prongs by August 1. Schools that do not have proportionality by the end of September must engage in a "comprehensive assessment" of student interests and use the results to create new teams or add opportunities to existing teams.

In short, OCR is demanding to see movement towards equity and to see it now. There are other requirements including a district Title IX coordinator specifically for athletics, information about Title IX and athletic opportunities for girls on the district web page, and the creation of a database to monitor progress.

Friday, July 10, 2015

Title IX Complaint Challenges Student Fee for Women's Association

A student at Louisiana Tech University has filed a complaint with the Departments of Education and Justice over a student fee used to fund an organization called the Association for Women Students.  Louisiana Tech reportedly assesses a fifty-cent fee only on women students. 

It is unclear to me whether the complainant, who is male, is objecting on behalf of women to the fact that they have to pay more in fees than their male counterparts, or if his concern is that the fee is used to fund an association that promotes women's interests. Fee issues aside, I do not think it violates Title IX for the university to support the Association for Women Students.  From what I could tell on its website, the AWS does not limit membership based on sex.  If I'm wrong, and it does, then that would be the Title IX problem right there. But the association appears to be open to all students, regardless of sex, who have an interest in promoting leadership and networking for women and celebrating multiculturalism among women. Moreover, the list of projects that the AWS has taken on all seem to benefit the student body as a whole rather than exclusively women.  For example, the AWS has sponsored safety phones on campus and golf carts to help transport students at night, as well as microwave ovens and vacuum cleaners in the dorm. While I am slightly concerned that these items are not already supported out of the university budget, I do not see anything discriminatory in the university sponsoring an organization that promotes projects such as these.

However, I do agree that singling out women to pay an additional fee, even one as low as fifty cents, is in a technical sense discrimination because of sex. Instead, Louisiana Tech should do what many other universities and colleges do, and charge all students a general student activity fee that supports various student groups that do different things and appeal to different constituencies. As long the fund uses sex-neutral criteria for determining what groups get supported, and as long it doesn't fund groups that restricting membership based on sex, I don't think there is anything discriminatory about using funds from a general student activity fee to support a group that exists to promote women's leadership and networking and does projects that benefit the campus as a whole.

Thursday, July 09, 2015

Round-up of Decisions in Disciplined-Student Cases

In the last half-year, federal district courts around the country have issued decisions in cases against universities filed by students disciplined for sexual assault.  We blogged about two such decisions when they occurred; courts in separate cases dismissed Title IX and other claims against both Columbia University and Vassar.  Besides these two, several more courts have issued rulings in disciplined-student cases in 2015, warranting an overdue "roundup" from me. The details of these cases are presented below, but by way of summary, in all of these cases, the plaintiff's Title IX claims were dismissed early in the litigation. As for claims under other sources of law, one decision (Sterrett) allowed a plaintiff to continue to litigate a procedural due process claim, though in a considerably narrowed form, and others (Peloe and Doe) foreclosed due process claims entirely because the student did not exhaust other remedies first by appealing within the university. Another decision (Marshall) summarily dismissed a student's First Amendment claim. State law claims were not generally represented among these decisions, except in one case (Knox) where the court remanded state law claims because it was without jurisdiction to consider them once the federal claims had been dismissed.
  • A male student at Knox College was disciplined for sexual assault of two female students.  In his lawsuit against the college, he argued that there were procedural deficiencies in the grievance proceeding that resulted in his discipline, such as not being able to present all exculpatory evidence or cross-examine one of his accusers who did not attend the hearing.  Without deciding whether the alleged procedural deficiencies constituted violations of state law (claims over which the court had no jurisdiction), the court dismissed the plaintiff’s Title IX claim due to the plaintiff’s failure to allege specific facts that support a conclusion that the university intentionally deprived the plaintiff of procedural rights because of his sex.  Blank v. Knox College, 2015 WL 328602 (C.D. Ill. Jan. 23, 2015). 
  • A male student at the University of Michigan sued university officials involved in the process by which he was suspended for raping a female student, which he denied having done. His lawsuit challenged various alleged procedural inadequacies as violations of both Title IX and the Constitution's due process clause. The court dismissed the plaintiff’s Title IX claim because he did not include any specific allegations to support his claim that procedural inadequacies were motivated by gender bias.  But his due process claim was only partially dismissed. He successfully alleged--and will thus be allowed to continue to litigate--his claim that the university failed to provide him adequate notice of the claims against him prior to his initial meeting with the investigator who prepared a report in which she concluded he was responsible for rape (though it did dismiss his claim that notice was inadequate as to the hearing that occurred later).  The court dismissed his claim that the university violated his right to due process by failing to provide him an opportunity to present his side of the matter.  However, this opportunity occurred after the investigator prepared her report, so the court found "plausible" his claim that he should have had greater opportunity to participate in the process prior to that time. Sterrett v. Cowan, 2015 WL 470601 (E.D. Mich. Feb. 4, 2015).
  • After a disciplinary hearing, the University of Cincinnati found the plaintiff, a male student, responsible for sexual assault and imposed sanctions.  The plaintiff sued, challenging the fact that university officials limited the evidence he was able to present at the hearing and did not allow him to record it. Because he sued in federal court before taking advantage of the opportunity to appeal the outcome of his disciplinary hearing to various university officials, the court dismissed his due process claim as premature. Similarly, the court dismissed his Title IX claim, which alleged that the university reached an “erroneous outcome” in his case due to gender bias. Even if the plaintiff was correct about the role of bias, the court refused to hold the university responsible for procedural errors that the plaintiff did not seek to correct through the appeal process that is in place for exactly that reason. Peloe v. University of Cincinnati, 2015 WL 728309 (S.D. Ohio Feb. 19, 2015).
  • A male student was suspended for one semester for sexually harassing a female student, conduct that largely consisted of him pestering her to go out with him or have sex with him.  In seeking a preliminary injunction against the suspension, the plaintiff alleged that the university violated his First Amendment rights to free speech, but the court rejected this argument based on precedent that allows the regulation of sexually harassing speech. The court also rejected his Title IX argument was because he failed to allege any facts that could support a conclusion that gender bias played a role in the university's decision to sanction him. For example, there were no alleged comments by university officials conveying such bias, nor allegations that the university had a motive (such as impressing OCR) to impose unwarranted discipline on a male student. Marshall v. Ohio University, 2015 WL 1179955 (S.D. Ohio Mar. 19, 2015)
  • A federal court in Ohio granted Miami University's motion to dismiss Title IX claims filed by a male student expelled for sexual assault because he did not sufficiently allege that the university's disciplinary proceedings were biased against him because of sex.  One aspect of his complaint alleged that a campus safety officer encouraged a (presumably exculpatory) witness not to testify, an allegation that the court admitted was "troubling" but still void of gender bias ("These facts pleaded against [the officer] do not suggest a gender bias against males so much as against students accused of sexual assault."). The court also refused to interpret allegations that the University had been publically criticized for failing to address sexual assault as an allegation that the University was biased against the plaintiff on the basis of sex. Sahm v. Miami University, 2015 WL 2406065 (S.D. Ohio May 20, 2015)
  • The University of South Florida had sent notice via email (twice and with “high importance”) to a student who had been accused of sexual assault and requested his participation in the investigation and disciplinary process. The student deleted the emails without reading them because he did not recognize the name of the sender, resulting in his summary expulsion. The student then brought a due process and a Title IX claim against USF, both of which were dismissed. The court rejected his due process claim on the grounds that it was premature to sue the university for lack of due process without first going through all of the appeal procedures the university provides. The court also dismissed the student’s Title IX claim because he did not allege any intentional discrimination on the university’s part, only that its procedure for handing sexual assault has a disparate impact on male students, a claim not recognized under Title IX’s private right of action.  Though the court gave the plaintiff permission to amend his complaint to include allegations of intentional sex discrimination, it predicted that such efforts would be "futile." Doe v. University of South Florida Board of Trustees, 2015 WL 3453753 (M.D. Fla. May 29, 2015).

Thursday, July 02, 2015

Rider College Softball Coach Files Lawsuit Challenging Dismissal

Patricia Carroll, head softball coach at Rider College since 1994, filed a lawsuit last week in the federal court in New Jersey, arguing that her employment contract was slated for non-renewal in retaliation for her complaints that Rider's women's programs received fewer resources than the men's. In particular, she alleges that her complaints targeted inequities in scholarship money and booster funding, as well as the size of coaching staff and quality of facilities like locker rooms.

Though Carroll has won three championships in the past, her record over the past three seasons is reportedly 26-127.  So it's possible that the college will claim that its decision was motivated by performance rather than retaliation. To win her case, Carroll will have to undermine this rationale and prove that it is pretext for retaliation, such as by proving that other coaches with similar records (and who have not spoken out about Title IX violations) are retained. 

Because the college's decision not to renew Carroll does not take effect until next summer, Carroll is in the unique position of challenging her termination while she is still employed. She is suing to keep her job, as well for unspecified compensatory and punitive damages.

Wednesday, July 01, 2015

Title IX Lawsuit Challenges Berkeley's Response to Sexual Assault

Three female plaintiffs, all former students, have sued the University of California at Berkeley alleging that in each of their cases, the University failed to respond adequately to their reports of having been sexually assaulted. 

The first plaintiff alleged that the the university's failure to communicate reporting procedures caused several months to go by before she was able to report that she had woken up to a man touching her after a university event.  Then, she says, the university shut her out of investigation and disciplined the offender with only probation.

The second plaintiff alleged that when she reported sexual misconduct of a visiting lecturer, the Title IX Coordinator admonished her for not clearly withholding consent, instead of investigating and disciplining the lecturer for groping her even though she had not actively granted consent.

The third plaintiff also alleges that she was shut out of the investigation the university conducted into her claim that she had been raped by a fellow-student acquaintance. Moreover, she challenges the fact that his suspension was only temporary (a year and a half) and that he will be allowed to return to campus -- notwithstanding the fact that rape kit evidence indicated that trauma had ensued.

The plaintiffs all claim that the university violated Title IX. in each of their cases.  Because their lawsuit seeks to hold Berkeley accountable for money damages, they must satisfy the "deliberate indifference" standard used by courts in such cases.  This standard can often be difficult to satisfy and not necessarily satisfied by allegations of inadequacies that would constitute violations of  the Department of Education's Dear Colleague Letter. 

Fifth Circuit Decision Flags Area of Uncertainty in Future Title IX Retaliation Cases

On Monday the Fifth Circuit Court of Appeals rejected the appeal of Anthony Minnis, the former women's tennis coach at Louisiana State, who had sued the university challenging his dismissal and other employment practices as racially discriminatory as well as retaliation for Title IX advocacy on behalf of his team.

Regarding the Title IX claim, Minnis's legal argument was that the appellate court should address his  retaliation claim in order to resolve a question of legal uncertainty regarding the application of Title VII standards to Title IX cases. Typically, when courts apply Title IX in the employment context, they are influenced by cases applying Title VII, the federal employment discrimination statute, which also prohibits discrimination on the basis of sex. Recently, in 2013, the Supreme Court ruled that Title VII retaliation plaintiffs must prove that retaliation was the "but for" cause of their termination or other adverse action.  In other words, they must show that the employer was solely motivated by retaliation, rather than by a "mixed motive" that includes retaliation among other reasons. Because employers' motives are frequently complicated and plausibly involve multiple factors, the Supreme Court's decision considerably narrowed the scope of Title VII's application to retaliation claim.

Minnis's lawsuit used Title IX, rather than Title VII, to advance his retaliation claim.  If his case had not been dismissed on summary judgment grounds, the lower court might have had to consider the question of whether Title IX continues to allow retaliation plaintiffs to prevail in mixed-motive cases, or whether the Supreme Court's rejection of mixed motive cases under Title VII extends to Title IX as well.  Minnis argued that the appellate court should have taken his appeal so that they could address that issue and provide clarity to lower court in its jurisdiction.  However, the lower court's dismissal of Minnis's retaliation claim did not turn on whether the university had a single or mixed motive.  Rather, the lower court ruled that Minnis failed to establish a prima facie case by demonstrating that he engaged in protected conduct. (Because both the men's and women's tennis coaches had advocated for an indoor facility, this could not even plausibly be a Title IX retaliation claim, according to the lower court.)  Since his case would not fall under Title IX to begin with, the court does not reach the legal question over whether mixed-motive arguments are still available to Title IX retaliation plaintiffs.

But the decision reminds us that this is an area of legal uncertainty that will eventually have to be addressed in future cases.    

Decision: Minnis v. Bd. of Supervisors of Louisiana State Univ., 2015 WL 3941846 (5th Cir. June 29, 2015).

Tuesday, June 30, 2015

Department of Justice Supports Transgender Student in Lawsuit Over Bathroom Use

Today the Department of Justice filed an brief on behalf of a transgender boy who sued his school district in Virginia after he was denied access to the boys' restroom.  The brief sets for the Department's position that Title IX requires schools to allow transgender individuals to use the restroom consistent with their gender identities.  A key section of the brief sets forth the agency's rationale:

“Under Title IX, discrimination based on a person's gender identity, a person's transgender status, or a person's nonconformity to sex stereotypes constitutes discrimination based on sex. The term 'sex' as it is used in Title IX is broad and encompasses gender identity, including transgender status. ...
“Prohibiting a student from accessing the restrooms that match his gender identity is prohibited sex discrimination under Title IX. There is a public interest in ensuring that all students, including transgender students, have the opportunity to learn in an environment free of sex discrimination."
This is not the first time the Department of Justice has taken up the cause of discrimination against transgender individuals.  Additionally, the Department of Education has signaled its interpretation of Title IX is similar as well.  Yet, courts have been reluctant to take this view, see, e.g.  Hopefully the push from DOJ in this case will help turn that tide.

Friday, June 19, 2015

Recent Law Review Articles Examine Title IX's Application to Sexual Assault, Transgender Rights

Today I read two recent law review articles that warrant mention on this blog.  The first article, by Lambda Legal attorney M. Dru Levasseur, examines a variety of legal contexts in which transgender rights are undermined by courts and other decisionmakers' tendency to distinguish "biological sex" from gender identity instead of viewing the latter as a constituent of the former.  In contrast, he notes recent examples in which the Department of Education has taken the position that sex discrimination encompasses discrimination on the basis of gender identity, such as in the enforcement of Title IX, a sex discrimination statute, to allow transgender students to use bathrooms according to their gender identities.  Levasseur challenges courts to follow suit.  By updating their thinking on the nature of etiology of sex and recognizing gender identity as a component of sex, they can properly interpret sex discrimination statutes (and other legal contexts that require a definition of "sex") to validate and protect trans identities.

In the second article, Boston University law professsor Katharine Silbaugh argues that in Title IX's application to campus sexual assault has been unnecessarily influenced by Title VII caselaw to adopt a "criminal justice model"-- one focused on punishment in individual cases -- rather than a "public health model" -- one focusing on community-wide prevention. She goes on to make the case that OCR's enforcement efforts should seek to motivate colleges to adopt robust preventive measures --  aimed at such targets as climate, relationships, and social norms -- rather than micromanage their post-assault response. This shift in focus, she argues, better utilizes the skills and talents of colleges and universities.  Moreover, a public health model is a better fit for Title IX's civil rights objective, since it aims to protect the ability of all students to partake fully in their educational experience without having that opportunity limited by sexual violence.

Articles cited:

M. Dru Levasseur, Gender Identity Defines Sex: Updating the Law to Reflect Modern Medical Science Is Key to Transgender Rights, 39 Vt. L. Rev. 943 (2015).

Katharine Silbaugh, Reactive to Proactive: Title IX's Unrealized Capacity to Prevent Sexual Assault, 95 B.U. L. Rev. 1049 (2015)