Friday, November 28, 2014

Controversy over Minnesota HS League transgender athlete policy

I know we heard/read about the proposed policy by the Minnesota State High School League--and its tabling--that would legislate the participation of transgender high school athletes in Minnesota. It has generated significant controversy, so I am somewhat surprised that we neglected to post anything about it. I shall remedy that here.

It is back in the news, as the policy--somewhat revised--is slated to be discussed next week at a meeting of the MSHSL board, in what is being called "round four."

The policy, which remains the same in that it asks for transgender students to provide a letter from a health care provider attesting to the student's gender identity, continues to draw concern from Catholic and child protection groups in Minnesota who are putting forth somewhat tautological arguments:
“You tell me, where is the research that a biological male or a biological female is not a biological male or a biological female,” MNCPL state coordinator Michelle Lentz said.

Unfortunately this is not even the most problematic statement being made. 

The newest version of the policy will allow schools to decide how to handle the issues surrounding bathrooms and locker rooms. The locker room has created the biggest controversies with opponents of the policy who are apparently worried that children will fake their gender identity in order to gain access to the so-called opposite gender's space and/or that transgender athletes will engage in predatory behaviors.Or at least that is how I am reading it given that they keep referring to (abstract) transgender people by using their non-preferred gender identity.

Opponents clearly do not understand what transgender means. This was made obvious by the state's Child Protection League which took out a newspaper ad days ahead of the original consideration of the policy which had been receiving little attention up until that point. The ad said "A male wants to shower next to your 14-year-old daughter. Are YOU OK with that?”

Again the fear seems to be that predatory boys--of course they use the word "male" which immediately connotes an adult--will be trying to pass as a girl in a way that is harmful to a so-called real girl (note the significance of the use of a precise age alongside "daughter").

I could launch into a quite cynical argument that there are easier ways for boys/males/men to prey on girls, but that be a diversion--an erasure--of the actual issues here, which are 1) the continued discrimination of trans students and 2) the legislation of the bodies and activities of transgender children.

Though both Erin and I write about transgender athletes and the range of policies that govern their participation at all levels of sport, looking always for the best practices, assessing each unique situation, in the end there is no perfect policy. Every one is fraught and that is because they all attempt--very often without the input of the people who are most affected by them--to define what transgender is and make it--and by extension, transgender people--comprehensible, perhaps even palatable, to a general public.

In the case of the Minnesota policy, though it falls toward the less restrictive side of the spectrum (as compared to the IOC's Stockholm Consensus) it still requires "proof" beyond the student's word, taking agency away from that student and placing the power to make decisions about the correct way to do gender in the hands of a health care provider. This means authority over gender identity again is removed from the child seeking to define it for him/her/themselves. The student continues to have to ask permission to engage in a gender identity and also must do so in a way that others decide is appropriate.

This last part is particularly salient in the locker room discourse. Now that MSHSL has left it up to schools to decide how and by whom locker rooms will be used, the stigmatizing potential of the policy has grown and will likely affect any transgender athlete. The publicity around this one aspect of the issue, I suspect, will mean that schools will take a very conservative route in legislating locker room use. This could result, for example, in transgender athletes being given some kind of private space thus denying that student the full experience of being on a sports team--which I would argue is itself gender discrimination and something one might file a lawsuit or complaint about--in addition to the stigmatization.

In other words, in an effort to avoid controversy from a vocal minority, schools could be perpetuating the discrimination the policy allegedly seeks to remedy. Again, this is but one problem with what has been happening in Minnesota around this issue.

I am quite interested to see what happens this week, whose voices and positions are heard and validated, and what policy--if any--emerges.

Tuesday, November 25, 2014

OSU Band Situation

It's been a busy semester for us, so we have not always kept up with the latest Title IX happenings. I am actually looking right now at a white board of my things to do which includes a list of posts I want to write.

One of those is the Ohio State band situation that made headlines this past summer. OSU plays rivals Michigan this Thanksgiving weekend, so I figured it was as good a time as any to do an update post.
What has happened in the wake of band director Jonathan Waters's firing has made less news than the original story and the subsequent protests of his firing, but as the OSU band has marched on (yes, intended) there have been developments in this story.

In September, Waters began a lawsuit against the university seeking reinstatement (plus a million dollars in damages) and--ironically--used Title IX as part of his defense saying he was discriminated against because of his gender. OSU did not seem to blink saying that such a claim was invalid given that he is a member of the male majority. They also responded that because Waters was an at-will employee, they could fire him at any time. (He had claimed lack of due process in his dismissal.) They also claimed that he hid aspects of and misled investigators about the climate in the band; the climate that seemed to promote sexual harassment and assault and which was brought to the attention of the administration last spring by a mother of a band member. He was also accused of mishandling complaints of sexual harassment and assault that were brought to him during his tenure. Notably, as this was happening, the university entered into an agreement with OCR to end the investigation into the university's mishandling of sexual assault cases.The investigation did not stem from the complaints about the band.

Most recently, an independent task force created specifically to investigate the band culture and headed by former attorney general Betty Montgomery issued a nearly 100-page report based on interviews with almost 200 people that included many recommendations about how to change the culture. The task force, though, was committed to maintaining some of the band's longstanding traditions (though it recommended elimination of the most egregious ones) just altering them to make less problematic.The report did not discuss Waters's dismissal, only his role as the leader of the organization and an instructor. The report did not limit itself only to the culture under Waters. Waters has responded to the report saying that he agrees with the report and its recommendations and says that these are things that he was trying to accomplish when he was fired. (video here) He said that he was "the solution to the problems they were having." And he still wants his job back.

He is, though, looking for another job in the meantime. His lawyer reports that he has not received any offers since his firing. This is not surprising. Unless there is solid evidence that Waters did not do what OSU is alleging he did, any university hiring him would be incurring some liability. Though Waters has received a tremendous amount of support from the OSU community (well outside of administration), I do not think that those a step removed from the situation see things the same way.

Thursday, November 20, 2014

Springfield, Massachusetts Middle School Could Stand Trial Over Student's Sexual Assault

A federal district court judge in Massachusetts denied the Springfield School Committee's motion for summary judgment on a Title IX filed by the mother of a female student who was sexually assaulted by a male classmate at Duggan Middle School. The mother's complaint alleged that school officials were on notice due to a prior incident of inappropriate sexual contact by that same male student.  After that initial incident, teachers separated the students and ensured no further contact for the remainder of the school year.  But the next school year, both students were placed in the same class and no warning provided to their teacher about the prior incident.  The teacher allowed the students to be unsupervised together, which the male student took as an opportunity to commit sexual assault on two occasions.

The court determined that the mother's allegations on behalf of her daughter state a claim for institutional liability under Title IX, which requires plaintiffs to prove that school officials had notice of a threat of sexual harassment or assault and responded with deliberate indifference. Applying this standard, the judge determined that, despite the school officials' initial vigilance, their failure to provide any continuity the following year could, if proven, satisfy the standard.

The next step in this case will likely be a conference to set a timeline for trial. In many cases, however, surviving the defendant's motion for summary judgment provides the plaintiff with greater leverage for a settlement.

Monday, November 17, 2014

Court Dismisses Sexual Assault Case Against Northwestern

A federal district court in Illinois has dismissed a female student's lawsuit against Northwestern University that alleges the university did not adequately respond to her report of sexual assault by a professor.  The student claims that when she was a freshman, philosophy professor Peter Ludlow plied her with alcohol and took her to his apartment where he proceeded to kiss and grope her and sleep with her in his bed. The student reported this to another faculty member who informed a university official responsible for sexual harassment prevention. That official conducted an investigation and concluded that the student could not have consented to the professor's advances because she was intoxicated.  In her lawsuit against Northwestern, the student argues that, at that point, Ludlow should have been terminated.  The court, however, disagreed that Title IX required Northwestern to take that particular step. The legal standard for institutional liability in a Title IX lawsuit for damages is that the university respond to notice of sexual harassment with "deliberate indifference." Here, the university sanctioned Ludlow by putting him on leave, denying him a pay raise, prohibiting from having contact with the student in question and prohibiting his social contact  with students overall. Even though the university's response continued to cause the student "considerable grief," it did not qualify as deliberate indifference so as to give rise to liability. The court also denied a second claim that the university took retaliatory action against the student, finding no allegation that the adverse action the student alleged (namely, that she was rejected for a fellowship) was causally connected to her reporting the professor's assault.  Decision: Ha v. Northwestern Univ., 2014 WL 5893292 (N.D. Ill. Nov. 13, 2014).

Though the student's lawsuit against Northwestern has been dismissed, other litigation involving Peter Ludlow remains pending, including a a civil lawsuit that the student has filed directly against Ludlow under the Illinois Gender Violence Act.  Meanwhile, Ludlow has filed various lawsuits of his own.  In one, he sues the university alleging that it discriminated against him in violation of Title IX in the way it handled the investigation and sanctions in the student's case discussed above. This lawsuit also charges discrimination in the university's response to a second student's allegation of Ludlow's sexual misconduct. Ludlow's other pending lawsuit is against that second student for defamation.

The defamation case has raised concerns about the potential chilling effect that the threat of litigation could have on students' willingness to come forward and report sexual misconduct, especially when the accused individual is someone like a professor with the means and resources to respond with a lawsuit of his own.  One way universities could respond to this is to promise to indemnify those students who blow the whistle on sexual misconduct, meaning, that the university would defend them in court and cover any damages assessed.  While some worry this system could operate to let a student get away with filing a false claim of sexual misconduct, the argument in favor of indemnification posits that it's a far worse problem to allow the accused to leverage the fear of litigation to keep victims quiet. It does not appear that any institutions have such an indemnification policy, so it will be interesting to see if the example of Ludlow's defamation case against the student prompts any to adopt one.  

Saturday, November 15, 2014

Huntsville-Alabama Title IX case and how we understand violence and athletes

Erin has already written about the sexual assault case in Huntsville, but I want to put it in the larger context of what I have been seeing, thinking, and discussing.
We have been hearing a lot about sexual assault and intercollegiate football of late (Florida, FSU, Missouri) in addition to the domestic violence allegations against professional football players.
Also still in the news is the campus (and spreading) activism about sexual assault in colleges.

These are not separate issues, even though they sometimes are covered and discussed in different spaces and places--including different sections of the newspapers and different television stations. But these differences, in presentation, speak to the visibility of the issues.

In the movement to fight against and seek awareness of campus sexual assault, the voices and images have been dominated by young women. There has been a concerted effort on the part of activists, like those involved in Know Your IX, to ensure that these are not just white women, or even just women.

However, looking at the coverage of perpetrators in stories about sexual assault activism we see something much different. In the cases of sexual assault by male college students (who are not athletes) we don't see much at all. Their identities remain--in the media at least--largely invisible. This is somewhat unusual given that the media usually protects victim's identities. But in the stories of women who come forward to protest their treatment by and at their schools, the men remain unidentified and their race is presumed to be white. This is not a criticism of the media coverage, rather an observation--an observation that emerged out of the coverage of male student-athletes who commit sexual assault. The picture we see in these situations is of assailants and not victims. The assailants have been football or basketball players who are Black men.

The similarity--no discussion of race. We know that men of any race can be perpetrators, but the majority of perpetrators being named and seen are Black men, who are athletes. This perpetuates the stereotypes of Black men, especially Black male athletes, as inherently violent. This is not to say that these men are innocent or that the schools have handled these cases well; the latter is certainly not true--but that the picture skewed.

This is why the Huntsville case was an interesting interruption of sorts. Yes, a student athlete, but a hockey player. Again we know that hockey players can commit violence against women too (there are several current cases in the NHL), but we have not seen them in the coverage of sexual assault. And the athlete is white. (He is foreign-born, which of course does not negate his whiteness, but provides some complication of the good American white boy athlete image that runs in contrast to the violent Black athlete.)

This case, despite being just as egregious as the ones we have heard so much about, received much less media attention. One might argue that this is because college hockey is not as popular a sport as college basketball and football (though as UNH alum, Erin and I might disagree) or he is not a high-profile athlete. Besides Jameis Winston, though, none of the other accused student-athletes have been national names.

I am glad that the Huntsville case was resolved and wish the others were being better handled, but in addition to questioning how these cases are being handled, we need to question what we are seeing (and not seeing).

Thursday, November 06, 2014

OCR Finds Title IX Violations at Princeton

The Department of Education's Office for Civil Rights announced yesterday that it has entered into a resolution agreement with Princeton University after finding that the university violated Title IX in the manner on which it handled reports of sexual assault by students. OCR's findings derived from an investigation that was prompted by three complaints that the agency received from students who alleged to have been sexually assaulted on campus in the 2009-10 and 2010-11 academic years. The agreement obligates Princeton to correct aspects of its policies and procedures that resulted in the institution's failure to promptly and equitably respond to its students' reports of sexual assault, including instituting the correct “preponderance of the evidence” standard to investigate sexual assault and violence allegations, ensuring that parties' have symmetrical rights to appeal, and to provide prompt time frame of generally 45 days in which such matters should be handled.

Princeton is also obligated to re-visit all complaints of sexual misconduct that it received from the 2011-12 school year until now and evaluate those cases for whether its own response complied with Title IX's "prompt and equitable" standard as well as the institution's obligation to provide interim measures to the victim and address any hostile environment or retaliation experienced by the victim. Princeton must submit its review to OCR by February 1 of next year, and must also take "appropriate action to address any problems that it identifies in the manner in which these cases were handled."  According to the agreement, such appropriate action could include providing the victim with counseling or other support, an academic adjustment, or even reimbursement of educational expenses.  By way of example, I could imagine that if the victim's grade suffered as a result of the university taking too long to resolve her case, appropriate action might be revising her transcript as if she had withdrawn from the course.  Or if hypothetically the victim suffered repercussions from the university's botched response to her sexual assault that it ended up taking her longer to graduate, or if she had to move out of the dorm and lose her housing deposit because the university failed to take proper interim measures, then reimbursement of these added costs could be appropriate. 

One thing that resolution agreement makes clear, however, is that the university is not expected to re-open disciplinary matters that have already been concluded, even if it finds that the process was flawed in ways that could have been material to the outcome.  Even though the idea of rehearing is appealing from a fairness perspective, I'm guessing OCR considered this possibility to be too disruptive to people's settled expectations -- perhaps even including the victim's -- and not worth that emotional cost. All things considered, OCR seems to be saying that the best way to address problems with past sexual assault hearings is to acknowledge them, help the victim if possible, but leave the result alone. 

Tuesday, November 04, 2014

Alcorn State Football Player Remains Eligible Despite Prior Sex Offense

Inside Higher Education reported today about the controversy surrounding football player Jamil Cooks who was recruited by Alcorn State after committing sexual assault at his prior institution, the Air Force Academy.  This week the NCAA confirmed that his eligibility to play for Alcorn State is not affected by his status as a sex offender and that the association leaves it up to individual institutions to make decisions about whether to admit a student with a criminal record.

When the reporter for this story asked me about possible Title IX implications for Alcorn State, I immediately thought about Williams v. University of Georgia, a case in which a student who was gang-raped by a group of student athletes sued the school under Title IX.  A federal appellate court agreed that she had a strong enough case to make it to trial, since it was possible for a jury to conclude that the university met the standard for liability, which consists of notice and deliberate indifference. The plaintiff argued that the institution was on notice of the threat posed by one of the players who was recruited after had been dismissed from his prior institution for sexual assault.  

Alcorn State would appear to be on notice of a similar threat; after all, as noted by Inside Higher Education, about 90 percent of campus sexual assaults are committed by repeat offenders.  If Cooks re-offends at Alcorn State, the institution would certainly face a lawsuit in which the victim would argue that Alcorn State is liable for damages for having recruiting a known sex offender and not taking any precautions to ensure the safety of other students. The only thing that would save Alcorn State from a hefty damages award or settlement (University of Georgia paid a six-figure settlement) would be if it could somehow convince the court that its officials did not act with deliberate indifference towards the risk, like maybe if they subjected Cooks to supervision, or made him take sexual assault training, or had him on some probationary status. Such precautions would not necessarily be sufficient, but if, as I suspect, Alcorn State is not taking any steps to address the risk Cooks poses to others, keeping him on the team is -- as I said to the reporter -- a "ticking time bomb" of Title IX liability.

Thursday, October 30, 2014

Sexual Assault Litigation Roundup

Universities' response to sexual assault allegations have generated several lawsuits lately. Here is a round-up:
  • A female student sued the University of Alabama at Huntsville, alleging that campus police violated Title IX when they discouraged her from pressing charges against a male student -- a hockey player -- who had raped her. (The player has since confessed and left the country for his native Finland.)  She also alleged that the university officials responsible for the campus judicial system violated her rights under Title IX.  After she prevailed in an initial hearing that determined that he was responsible for rape and should be expelled, he appealed this ruling to the associate provost, who allegedly delayed his decision until the end of the hockey season and then downgraded the sanction to a two-month suspension.  
  • Two students, a male and female couple, sued the University of Houston to challenge the fact that they were expelled after having been found responsible for sexual misconduct against another female classmate.  That classmate reported that the male of the couple had sexually assaulted her and the female of the couple had caught them on videotape and then left her naked in the hallway of their campus apartment building.  The expelled students claim that their due process rights were violated in the manner in which they were expelled.
  • A male student expelled from Occidental College for sexual assault has filed a Title IX complaint with the Department of Education as well as a lawsuit against the college. After a disciplinary proceeding found him responsible on the grounds that she was incapacitated by alcohol to have provided consent, he filed a sexual misconduct charge against her on the grounds that he, too, was intoxicated.  He claims that the college's failure to process his claim demonstrates discrimination on the basis of sex. 

Jury Sides With School District in Basketball Hazing Case

Earlier this month, a federal jury in Tennessee delivered a verdict in favor the Rutherford County Board of Education, which had been sued by the family of three girls who alleged they were harassed and retaliated against when they complained that another member of their high school girls basketball team had poking them in the buttocks (a practice described during the litigation as "goosing" or "cornholing").  In August of this year, we noted that a federal judge had cleared the way for trial by denying the board's motion for summary judgment, a ruling that the plaintiffs could potentially prevail if their evidence was persuasive to a jury.  But after the trial was held this month, the jury was apparently not persuaded that school officials responded inadequately to their reports of the incident, and that they had appropriately disciplined the offending player.  Jurors apparently also believed the school's explanation that the girls had been kicked off the team for missing practice, not in retaliation.   According to the press, one of the plaintiffs six claims did prevail but the jury found damages in the amount of only one dollar.  (The court records are sealed because of the minor status of the plaintiffs, so I could not investigate further as to which claim this may have been.)

Monday, October 27, 2014

Former University of Toledo Softball Coach Files Discrimination Suit

Last week, the former softball coach at the University of Toledo filed a Title IX lawsuit against the institution in federal court, alleging that she was the victim of sex discrimination and retaliation and seeking damages and reinstatement to the position from which she alleges she was forced to resign. The coach, Tarrah Beyster alleges that she advocated for gender equity in her athletic department including by challenging: the disparity in multi-year contracts, which were granted to male coaches, and other gender-based pay inequity; the department's failure to assign a long-term grad assistant to the softball team like it did for the baseball team; preferential treatment for the baseball team in allowing it to keep the revenue from renting out its field; the department's failure to provide the dirt for the field or a new backstop to the softball facility, despite providing both to the baseball team; the department's requirement that the softball team to do its own fundraising to bring the outfield fence into compliance with NCAA regulations; and the singling out of softball to share a locker room with other teams, as well as requiring female coaches to share a locker room with referees and officials.  

Beyster alleges that, after raising these concerns, she endured retaliation in the form of a hostile work environment -- a former associate athletic director called her "Coach Bitch" -- as well as being charged with insubordination at a surprise disciplinary hearing in which she was forced to resign.  She further claims that the "insubordination" charge is pretext for retaliation by alleging that other coaches have engaged in more egregious offenses, like having relationships with their students, without being fired.

Retaliation claims by coaches and administrators are increasingly common in college athletics, especially in the wake of a 2006 Supreme Court decision affirming the statute's application to retaliation, and plaintiffs have successfully obtained verdicts or settlements in a number of them. For examples, see here, here, here, here, here, here, here, here, here, and here.

Tuesday, October 21, 2014

Department of Education Releases New Clery Act Regulations

Yesterday the Department of Education released new regulations implementing the revisions to the Clery Act imposed by Congress when it reauthorized the Violence Against Women Act last year. The Clery Act requires colleges and universities to report statistics on crime that takes place on campus and in related areas. Specifically, VAWA required that Clery’s existing requirement to include sex offenses like rape and sexual assault in their annual security reports be expanded to include other sex offenses including dating violence, domestic violence, and stalking. VAWA also required that colleges and universities include in their reports information about their policies and procedures for preventing and addressing those offenses when they occur.

The Department of Education’s job in promulgating regulations was to flesh out the details of those requirements, such as by providing definitions of the newly-included sex offenses, as well as the content to be included in the institution’s disclosures about policies and procedures.  The process of creating those regulations began last year when a committee of experts representing a variety of stakeholders convened to help negotiate a draft of these proposed rules.  In June, the Department published the draft and opened it for public comment.  The final rule announced yesterday contains no surprises in the form of major departures from the earlier-published draft.  It does include insight into the agency’s reasoning for rejecting suggestions from commenters that certain changes be made.

Here are some highlights of the new regulations:

It's all about the definitions. Definitions are a big part of the new regulations, which seek to ensure that institutions are reporting on crimes and offenses in a consistent manner.  However, the Department pushed back on suggestions that the regulations provide a uniform definition of consent as it used in the description of sexual assault and other sex offenses. For one reason, an institution’s annual security report must include all offenses that are reported, not only those that result in discipline that turns on a precise finding of the lack of consent.  For another, states use different definitions of consent in their own laws, a fact that could cause confusion and make reporting more burdensome for institutions in those states whose definition differs from whatever definition the Department could have required. I think, in addition, that Title IX enforcement provides some assurances that institutions won't vary too dramatically from suggestions the Department of Education and the White House have already provided (here and here, e.g.) for defining consent as voluntary, revocable, not implied by past relations, and not applicable where the individual is impaired, unconscious, or asleep.

Trans-inclusive Security Reports. The requirement that colleges and universities report statistics on hate crimes has been amended to include crimes motivated by the victim’s gender identity, which should lend visibility and transparency to campus violence targeting transgender and gender-nonconforming people.

Prevention and Intervention Must be Addressed. Colleges and universities must describe their “primary prevention and awareness programs” related to sexual violence, including the institution’s policy prohibiting such conduct, its policies and procedures for dealing with sex offenses that are reported, and its ongoing efforts to promote bystander intervention and prevention. In requiring efforts aimed at "primary" prevention the Department is signaling that it requires institutions to go beyond informing students how to keep themselves safe, but to target and prevent "primary" offending behavior itself.

No Standard of Evidence Requirement.  The regulations’ requirements for the substance of disciplinary procedures that must be included are compatible with the Department of Education’s interpretations of Title IX in that both require institutions to provide symmetrical rights to the victims and accused.  One difference, though, is that the new Clery regulations do not require institutions to use any particular standard of evidence during a disciplinary proceeding (only that they report whatever standard they use).  The Department's analysis makes clear that "A recipient can comply with both Title IX and the Clery Act by using a preponderance of evidence standard."  Still, I regret that the Department has missed an opportunity to elevate the preponderance standard from a requirement imposed by agency guidance (which can easily be revoked by a subsequent presidential administration) to the status of binding regulation that is more difficult to change.  

Attorneys May Serve as Advisors.  Another controversial issue addressed in the Clery regulations regarding the disciplinary process is the role of the advisors to both the victim and the accused.  The regulations require institutions to allow students to be represented in the process by an advisor of their choice, and any restrictions on the advisor's role must apply symmetrically to both parties.  Some commenters argued that the regulations should prohibit attorneys from serving as advisors, in order to prevent the process from becoming judicialized and potentially more complicated, expensive, and unfair to whichever side cannot afford an attorney.  The Department thought those concerns were best addressed by institutions in their decision on whether and to what extent to limit the advisors' role. 

These regulations are effective as of July 1, 2015, but should likely inform institutions existing efforts to comply with the amended Clery Act, which has already gone into effect.

Saturday, October 18, 2014

Attorneys Fees Awarded to Prevailing Plaintiffs: An Example from Delaware State

The American judicial system typically requires each party to pay their own way when it comes to attorney fees -- in contrast to, say, the British system that has a "loser pays" approach.  The American system can make it difficult for individual plaintiffs to get justice in some cases. If the plaintiff is seeking large monetary damages, she may be able to make an arrangement to pay an attorney on "contingency" or out of the proceeds of the case. But if the plaintiff is seeking non-monetary relief, such as an injunction, this is not possible, and either she, or a pro bono attorney, would have to bear that cost. 

Fortunately, a statute applicable to civil rights laws litigation permits courts to make exceptions to the "pay your own way" American rule and require defendants to pay for the plaintiff's expenses of hiring an attorney and litigating the case. Sometimes, there are disputes about how much is reasonable to expect the defendant to pay, and those cases end up producing litigation themselves (and thus, get on my radar for possible fodder for blog).  That's what has happened in the Delaware State litigation.  You may recall the litigation challenging the university's decision to discontinue its women's equestrian team.  In approving a consent decree to settle the case on plaintiffs' terms, the court ordered the university to pay the plaintiff's attorneys fees -- not only for the cost of litigating the case, but also for the cost of continuing to monitor the consent decree.  When the plaintiffs lawyers -- which include the nonprofit Women's Law Project -- requested fees for monitoring the consent decree from Delaware State, Delaware State argued that some of the things they had charged for were not reasonable. Recently, the district court rejected Delaware State's argument and ordered it to pay what the plaintiffs had requested -- a total of $77,293.64.  This was on top of the $475,442.21 that Delaware State had to pay the plaintiff's attorneys  back in 2010 to litigate the case in the first place.

The substance of this particular dispute over attorneys fees, as well as the result, is not particularly unusual or noteworthy, but I offer it here as an example of this important aspect of civil rights litigation. The ability to recover attorneys fees to litigate a case makes it possible for plaintiffs and their lawyers to afford the cost of seeking justice.  Moreover, that Delaware State has had to pay over half a million dollars -- in a case that settled even before the lawyers had to litigate motions for summary judgment, a trial, or an appeal, no less! -- also serves as a cautionary tale to erstwhile defendants that even where money damages are not on the line, it doesn't pay to discriminate.

Decision: Foltz v. Delaware State Univ., 2014 WL 4954304 (D. Del. Sept. 30, 2014) (awarding attorneys fees for continued monitoring of consent decree). 

Friday, October 17, 2014

Another California School District Settles Title IX Case Over Harassment and Discrimination of Transgender Student

The Department of Education announced this week that it has entered into a resolution agreement with the Downey Unified School District. The Department had been investigating a complaint filed on behalf of a transgender student who has consistently asserted aspects of her female gender identity since enrolling as a kindergartner in the Downey public schools. The complaint alleged that while she was an elementary student, the student was the subject of discrimination on the basis of gender identity when school officials disciplined her for wearing makeup when other female students were allowed to do so. As part of her punishment, she had to write a letter of apology for making male students uncomfortable. She was also allegedly the victim of  verbal harassment including being called homophobic and sexist slurs by other students on the bus, to which school officials failed to adequately respond. After she fully transitioned to female during her fifth grade year, school officials refused to use her female name.  While some things improved when the student graduated to a middle school that respected the students gender identity, name and pronouns, the student was still subject to peer harassment and the complaint suggested some school-wide measures that were not taken to try foster a more tolerant and inclusive climate.  Based on her experiences in elementary school and middle school, the student wanted assurance going forward that high school administrators and faculty will be responsive to harassment, respectful of her gender identity and expression, and willing to treat her just like any other girl.

The resolution agreement addresses the student's concerns for the future by requiring the school district to "continue to treat the student the same as other female students in all respects in the education programs and activities offered by the District, including access to sex-designated facilities for female students." The district is prohibited from disciplining the student from "appearing in a manner that does not confirm to stereotyped notions of masculinity and femininity" and must remove all past such disciplinary notations from the student's records. Additional measures the school district will have to undertake include hiring a consultant to help the school address the climate issues giving rise to harassment, conducting mandatory training for district administrators to ensure they are responding appropriately to gender non-conformance- and gender-based harassment, and reviewing its policies to ensure that transgender students are provided every opportunity to participate in all programs "in a manner that does not discriminate based on sex, gender identity or gender expression."

Like the Arcadia school district resolution, which was similar, this resolution is an important signal of a school district's obligation under Title IX to protect equal rights of transgender student.  While the requirements that school districts appropriately respond to gender-non-conformance-based harassment is not a new or groundbreaking application of Title IX, other aspects of the resolution are cutting edge. In particular, the requirement to treat transgender student like any other girl with respect to sex-designated facilities is part of an emerging definition of sex discrimination that enhances Title IX's effectiveness to challenge transgender student's exclusion from the bathrooms, locker room, dormitory, or sports team that comports with their gender identity. 

Thursday, October 16, 2014

In my inbox: Trans students at women's colleges

It was a trans-centric day for my email inbox.

First I received this petition from asking Smith College to adopt a more trans-inclusive admissions policy. This is somewhat similar to a petition from last year that was protesting the denial of admissions to a transwoman because her FAFSA identified her as male and after she was told by someone from Smith that this would not be an issue.

The petition, created by a group called Smith Q&A, actually includes a recommended admissions policy which they modeled after the one Mills College (in California) recently adopted. It is asking the administration to change its policy requiring female gender markers on transcripts and letters of recommendation for transwomen seeking admission to the college in light of the constraints--legal, emotional, cultural--that transwomen face regarding "official" change of gender or even being out as a transperson.

Interestingly, the recommended admissions policy does not extend its categories for admission as far as the one announced earlier this fall by Smith's Pioneer Valley neighbor, Mt. Holyoke College.

Though the policy created by Smith Q&A does allow for women who transition to men while on campus to remain on campus and enrolled, it does not allow for those men who are seeking admissions after already or in the process of transition.

I suspect that Smith administrators and trustees will be addressing this (publicly) before the end of the academic year given the attention the MHC announcement received (and the comparisons being made to Smith) and because other women's colleges are also grappling with this issue...

One of the other emails I received today was from a student who was pointing me towards this NYT article about transmen at Wellesley. Similar to what is happening at other women's colleges, transmen are becoming a more visible part of the student population with some transitioning while at school and others entering somewhere along their (own personal) transition process. And this visibility has some people quite concerned. If women's colleges are for women, as some point out, what does it mean when students who do not identify as women are entering leadership roles on campus? One student whom the story focused on entered Wellesley knowing he was transmasculine but was not out to his family and checked female on the admissions application. He chose the school because he felt it would be a safe space for him.

This is an issue being raised as part of the discussion. It is not simply about who women's colleges are for? But what are women's colleges for? What is their mission in the 21st century? These are the questions women's colleges should be asking themselves--and many seemingly are doing so already.

And this is an issue that exists in sports as well. Erin and I have explored the role of women's sport spaces and their role in women's community as part of our research. We looked at recreational sports and the history of women's-only rec sports asking similar questions. Who is this for? What purpose does it serve? What changes occur when transmen are included in these spaces?

Interestingly I see parallels in the historical missions of many women's colleges and women's-only sport spaces. They were created as an environment (relatively) free from male influence, to empower women, to provide access to something that had been historically male-dominated. 

I understand why the presence of transmen feels threatening to some of these institutions, but I think more soul-searching needs to be done and more external searching for multiple voices from many constituencies about the meaning and purpose of women's spaces in our culture.  

Tuesday, October 14, 2014

Comparing Universities' Response to Charges of Sexual Assault -- What a Difference a Year Makes?

Last week, the day after he came off the bench to lead the University of Florida to a 10-9 victory over Tennessee, quarterback Treon Harris was accused of sexually assaulting a female student on campus in the early morning of Sunday, October 5.  The following day, the University announced that campus and local police were working together to investigate forensic evidence, and that it was suspending Harris from the team in the meanwhile. Citing "no tolerance" for sexual assault, University president Bernie Machen vowed that student safety was the institution's top priority.  But last Friday, Harris's accuser withdrew her complaint.  The university reinstated Harris and he is expected to be back on the field this weekend. 

Meanwhile, 150 miles away in Tallahassee, Florida State is struggling to get a handle on its own controversy arising from allegations of its quarterback's sexual assault controversy. This week Fox Sports News reported on evidence seeming to suggest that FSU officials and Tallahassee police worked together to delay turning over the case to the state prosecutor and give a "head start" to the attorney for accused Jameis Winston. Moreover, the university's own public statement released in advance of that report as preemptive damage control may have backfired in that it has provided ammunition to the victim's attorney to point out that the university athletic department's early role in the Winston case was concealed from other branches of the university like its Title IX office.

What do we make of these two Sunshine State examples, in close proximity of time and space, but otherwise worlds apart?  For one thing, I don't think we'll ever know what prompted a student to accuse Harris of sexual assault and then withdraw that complaint. One possibility is that she deliberately filed a false charge against Harris and then later had a change of heart; at the other extreme, it's possible that she' a victim two-times over -- first of sexual assault and then of social pressure to stay silent. Or, maybe she was deterred from standing by her initial accusation after weighing the downside of going forward and having to deal with upheaval that Winston's accuser has faced, against the downside of going without justice. If either of those last two possibilities reflect the truth, this case represents that we still have a ways to go as a society in terms of the support we provide to victims and the respect we give to their privacy. 

Yet by comparing University of Florida to Florida State, we might also come to a tentative conclusion that at least university culture is moving in the right direction in its response to sexual assault and the prioritization of student safety over athletics.  Even though the charge was later withdrawn, and even though we don't know why, what the University of Florida did when it had the charge seems, from what we know, to have been the right thing. Declaring "no tolerance" for sexual assault was not a rush to judgment against Harris but an explanation for the university's prompt response, transparency, and decision to suspend Harris as an appropriate interim measure to protect the students safety. Whatever remains uncertain about Florida State's response to the charges against Winston, it is clear that its response was distinguishable from that of University of Florida under similar circumstances. Maybe we chalk that distinction up to the difference a year makes -- especially a year as big as this past one has been for public attention and legal scrutiny into to the problem of campus sexual assault.