School District Not Liable For Harassment by Former Teacher

The Seventh Circuit Court of Appeals recently ruled that the McLean County School District was not liable for the harassment committed by a former teacher at his new school. From 2002 to 2005, Jon White was an elementary school teacher in McLean County, Illinois. According to the plaintiff's complaint, school district officials were aware of his sexually harassing and abusive behavior, which included such disturbing things as "hugging students and holding them on his leg, having students massage him and wrap their legs around him, showing students sexually suggestive photographs, and commenting on students' sexual attractiveness," as well as engaging in something called the “taste test game,” in which White would "blindfold students and then place foods in their mouths using a banana, his hand, or his penis."

Rather than fire White outright, the McLean County School District got rid of him quietly and, according to the plaintiffs, "intentionally concealed" his sexual misconduct to his next employer, the Urbana School District -- even writing him a positive letter of recommendation. There White proceeded to harass and abuse more students, including the anonymous plaintiff in this case, Jane Doe-2. Doe-2 and other victims filed tort and Title IX claims against the McLean School District. However, a district court dismissed the tort claim on the grounds that McLean does not owe a duty of care to students in other districts. It also dismissed the Title IX claim because the harassment of Doe-2 occurred outside the scope of McLean's control.

The appellate court agreed with both results. In its Title IX analysis, of particular interest here, the court did not agree that McLean officials had notice that White would sexually abuse Urbana students. But even if they did, the court reasoned, the McLean officials did not have control over harassment Jon White was perpetrating in the Urbana schools.

To me, this reasoning takes an unnecessarily narrow view of the requirement that, for Title IX to apply, a school district have the ability to control or prevent harassment. Assuming truth of the plaintiff's allegations, McLean officials had control over White at the moment the other requirements for Title IX liability occurred; that is, at the time they learned White was a risk to future students, and at the time they responded with deliberate indifference to this knowledge by letting White go quietly. I think that the Seventh Circuit's rule gives every incentive to school districts to behave exactly as McLean is alleged to have behaved. This decisions creates a loophole from the requirement that school districts act reasonably when confronted with evidence of sexual harassment; they can avoid the hassle of disciplining or terminating an abusive teacher and still shield themselves from Title IX liability by making sure that the teacher's continuous misconduct occurs outside the district. The Seventh Circuit claims to be acting in accordance with the Supreme Court's professed reluctance to expand statutory remedies through implied rights of action. But the Seventh Circuit's rigid control test does more than refrains from expanding remedies under Title IX -- it completely undermines those remedies.

Decision: Doe-2 v. McLean County Sch. Dist., 2010 WL 199625 (7th Cir. Jan. 22, 2010).

City of Nashville Pays > $1 Million to Victim of School Bus Assault

The City of Nashville recently settled with a parent and the Department of Justice, whose lawsuit challenged the school district's failure to protect the plaintiff's 9 year old, autistic son from peer-on-peer sexual assault on the school bus provided to children with special needs. Last July, a federal district court denied the city's motion for summary judgment on several claims, including a Title IX claim, after determining that prior instances of assault on special needs school buses -- including by the perpetrator of assault in the instant case -- could be viewed as having put the city on notice of the risk to the plaintiff's son. Under the settlement, the city will pay $1.475 million to the victim to compensate him for damages resulting from the assault, including severe post-traumatic stress disorder. The city must also take preventive measures to protect students going forward, including staffing bus monitors on special needs buses, screening procedures to ensure that students are not assigned to buses where they would be at risk, expediting investigation of sexual harassment claims by students with disabilities, and improving communication between transportation officials and school personnel.

Decision on summary judgment is here: Lopez v. Municipal Gov't of Nashville, 646 F.2d 891 (M.D. Tenn. 2009).

Student Nondiscrimination Act Introduced in Congress

Yesterday, Representative Jared Polis (D-Co.) introduced in the House of Representative a bill that would provide Title IX-like protection to LGBT students. If passed, the Student Nondiscrimination Act would offer remedies for discrimination that targets students because of their "actual or perceived sexual orientation or gender identity."

This law is sorely needed. GLSEN reports that 86.4% of LGBT students who responded to a 2007 school climate survey said they had been harassed in the past year. 60.8% said they felt unsafe at school because of their sexual orientation. Yet, there is no federal law protects students from discrimination on the basis of sexual orientation and gender identity, like there are for protected categories of sex (Title IX), race (Title VI of the Civil Rights Act, which applies to public accommodations), and disability (Rehabilitation Act, ADA). Some courts have interpreted Title IX and the Equal Protection Clause to protect LGBT students, but no uniform standard or scope of protection has resulted from these limited decisions. Additionally, while 14 states enumerate protection for students on the basis of sexual orientation and an additional 10 supply protection on the basis of gender identity, students in most states are without protection of state law (see map here). The Student Nondiscrimination Act would provide a uniform standard of protection, one that would not be subject to the interpretation of federal courts or to the willingness of state legislatures. I hope to be able to provide many more updates to this post as the bill makes its way through Congress and the President and becomes the law of the land.

Cuts at Duquesne

Duquesne University in Pittsburgh announced the other day that it will cut men's swimming and diving, men's wrestling, men's golf, and baseball. The combined cuts will result in a $1 million savings. One report claims that the athletic director has said this money will be spread out among the 16 remaining sports. Inside Higher Ed writes that the savings are going to "offset previous budget deficiencies." University officials say that the decision was based on finances, facilities, conference affiliations and support, gender equity, potential success, and overall student-athlete experience.
The people at Collegeswimming.com seem a little miffed that although only men's sports were dropped Title IX was not mentioned in an university press release. Well, one, they did mention gender equity. And two, Title IX is not a reason for dropping sports, it is a factor in which sports are eligible to be dropped--legally. And Duquesne is a small DI-AA school with just over 5,000 undergraduates. Women outnumber men and there is a 93-person football roster. These are some of the realities that schools have to consider. For such a small school to carry 20 varsity teams was, as we see, not sustainable in these economic times.
Duquesne also maintains that the decision will strengthen the overall athletics program.

St. Rose adds lacrosse

Bucking the cutting trend, the College of St. Rose has announced it will add lacrosse for the 2010-11 season. Men's lacrosse. They are building a turf field as part of a general improvement of facilities project and need a team to put on it. Apparently adding lacrosse has always been on the agenda. The DII school in Albany, New York is taking it slowly offering only 3 or 4 scholarships in the first year and not hiring a full-time coach until the second season.
No plans, however, to add a women's team. The school's president has said it will add spots to existing women's teams to remain (?) Title IX compliant.
An initial look at the school's offering, especially the lack of a football team, makes one think this solution is quite plausible. But it turns out women greatly outnumber men at the school who comprise less than 30 percent of the undergraduate population. But the athletic opportunities are split 50/50. Lacrosse is going to exacerbate that situation. St. Rose is going to have to add many, many roster spots to existing women's teams to close the gap.

Delaware State Violates Title IX With Recent Elimination of Equestrian Team

Via Jarrett at HBCU Sports Blog, I learned that Delaware State University recently announced a decision to eliminate men's tennis and women's equestrian. The decision, which comes less than a year after announced elimination of the men's wrestling team, was made to help balance the athletics budget and to improve the competitiveness of the remaining teams. Unfortunately, as I told Jarrett, the elimination of women's equestrian almost certainly violates Title IX.

Title IX's regulations governing athletics require, among other things, equity in the number of athletic opportunities for members of each sex. A school must comply with that requirement in one of three ways: (1) substantial proportionality, (2) continuous expansion of opportunities for the underrepresented sex, and (3) full accommodation of the interests of the underrepresented sex. At DSU and most universities, women are the underrepresented sex. They constitute 60% of DSU's student body, but receive only 46%* of the athletic opportunities. Therefore, cutting a viable women's team necessarily violates the second and third prong: it is the opposite of program expansion for the underrepresented sex, and it results in lots of members of the underrepresented sex (the former athletes) with unmet interest. This leaves only one compliance prong left to consider: proportionality. Unfortunately in DSU's case, the cuts of men's tennis (6 opportunities) and women's equestrian (20 opportunities) makes their proportionality score worse, not better, as women would receive only 44% of opportunities and men 56%.*

If the equestrians sue, I predict they will win an injunction that would protect them from being eliminated. Unfortunately, this would put DSU in the position of having to make cuts elsewhere.
The unfortunate reality is that a great disparity existed in the proportion of athletic opportunities available to men and women. Because of that disparity, Title IX protects women from losing even more, leaving men's teams to bear the brunt of further cuts. Unfortunately, when this happens, people will blame Title IX for the cuts to men's teams. But both the gender disparity and the athletic department's budget problems are problems of DSU's creation, not Title IX's.

*Based on current participation figures reported to the Department of Education, adjusted for the announced elimination of wrestling.

Paying it forward

I am usually pleased to see Title IX activism anywhere, and especially so when the activist(s) who files a complaints or makes known a potentially inequitable situation has no vested interest in the situation (besides a general interest in gender equity which everyone should have a vested interest in). But I was really, really pleased to read that Diane Milutinovich, one of the Fresno State plaintiffs, was getting involved in another gender equity case at another institution. Cuesta College in Can Luis Obispo, California dropped its women's tennis team this past summer (yes, we did miss that news) in an effort to cut costs. We know that California state schools are in tough shape but the rationale, that cutting the 8-member team, affected the least amount of students, is, of course, not quite legal if it turns out that the college is not offering equitable athletic opportunities for female students.
Milutinovich filed a complaint with OCR against the school this past weekend after feeling that she was not being heard by administrators at the school when she volunteered to help address the situation. Administrators are scheduled to address the issue at a February board meeting. But now that an OCR complaint has been filed I imagine any potential remedy (should one be necessary) would have to be negotiated with OCR.
Interestingly, when one visits the Cuesta College homepage there is a Title IX Notice link that is displayed fairly prominently. And it takes you here where you can find out how to reach the Title IX coordinator and that college's adherence federal antidiscrimination laws. Not sure if this is a new link, or a newly placed link, or if it is required of all California state schools given their previous issues with gender equity.

Article Makes Case for Punitive Damages under Title IX

A student note in the University of Pittsburgh Law Review argues that Title IX punitive damages should be available to plaintiffs seeking relief from school districts that have discriminated on the basis of sex in their allocation of athletic opportunities and resources. Author Katina Pohlman explains that school districts -- for example, those in her native Western Pennsylvania -- have gross disparities in athletic opportunities for boys and girls, suggesting that private enforcement efforts must be strengthened to motivate schools toward gender equity.

Moreover, she argues, the courts have erred in construing punitive damages to be unavailable. In Franklin v. Gwinnett County Public School System, the Supreme Court acknowledged that Congress, in passing Title IX, made "all appropriate remedies" available to plaintiffs since it did not specify otherwise -- a statement of ostensible support for punitive damages as well. However, a subsequent Supreme Court decision, Barnes v. Gorman, cast doubt on that inference when it ruled that punitive damages were not available under various other civil rights statutes that were passed pursuant to Congress's Spending Clause authority. The Barnes Court refused to assume that entities that accept federal funding subject to Congress's conditions (such as a nondiscrimination mandate) has expressly bargained for possible punitive liability. Other courts, most notably the 4th Circuit in Mercer v. Duke University, have applied the reasoning in Barnes to Title IX cases because it too is a Spending Clause statute. However, Pohlman argues, there is good reasons to treat Title IX cases differently, particularly in the athletics context. A bar on punitive damages should not be inferred because punitive damages are integral to enforcement. Participating in athletics does not have economic value (except for athletes with scholarships) so courts are unlikely to assign high compensatory damages to remedy disparities in opportunity. Injunctive relief is also particularly ineffective in the Title IX context, because plaintiffs are likely to be students, whose cases become moot when they graduate. Finally, administrative remedies available under Title IX, i.e., withdrawal of federal funding, is not an effective deterrent against discrimination because this remedy is only threatened, never invoked. Pohlman argues that these enforcement challenges are unique to Title IX, the only civil rights statute that is particularly focused on education, so courts should be leery about applying Barnes's foreclosure of punitive damages under other civil rights statute to foreclose punitive damages under Title IX.

Citation: Katrina Pohlman, Have We Forgotten K-12? The Need for Punitive Damages to Improve Title IX Enforcement, 71 U. Pitt. L. Rev. 167 (2009).

Justice Department Takes Up Anti-Gay Bully Case

Last summer we blogged about a peer harassment case filed against the Mohawk School District in upstate New York. The plaintiff, an openly-gay ninth grader named Jacob, claims that the district violated Title IX by failing to protect him from anti-gay bullying and harassment by his peers.

Recently, the Department of Justice filed for leave to intervene on Jacob's behalf. It plans to advance the argument that Title IX's prohibition against discrimination on the basis of sex extends to discrimination targeting a plaintiff for their failure to comply with gender stereotypes such as that which Jacob endured. This theory of Title IX has been applied by several courts in the past, but other courts (more often in employment rather than education cases) have ruled that gay plaintiffs are not protected by sex discrimination statute because they are targeted because of their sexual orientation rather than their sex.

While DoJ cannot dictate how courts interpret the laws it enforces, its interpretation is often more persuasive to courts than ordinary litigants'. Thus, the Obama administration's motion to intervene is a significant step toward universalizing a broader interpretation of Title IX that gives much-needed protection against bullying that targets LGBT students and those so perceived.

(Via Towleroad.)

NCAA happenings

The annual NCAA meeting concluded this weekend after a great deal of business was conducted--or at least it seemed that way from press coverage; I wasn't there. I just wanted to quickly mention two decisions.
The first is in regards to sand volleyball. Despite objections from many universities over the presence of sand volleyball on the list of emerging sports, the vote to remove it did not receive the necessary two-thirds majority.
And second, Division II is continuing its "Life in the Balance" initiative by cutting back the number of games for certain sports, starting practices later, and instituting a moratorium on games, practices, and any on-campus training for winter sports during the week between December 20-26. The initiative is, in part, a response to the fact that 30 percent of DII athletes leave without graduating.

Sand volleyball: In or out?

The NCAA, which is meeting in Atlanta, Georgia this week, is voting today on whether to keep sand volleyball (for women) or to nix it from the list of emerging sports.
When it was added I recall a little concern on my part on how it would be implemented and apparently others have similar concerns. The concerned/not concerned line has been largely based on geographic region, though cold-weather schools including Nebraska are in support of sand volleyball. But this is not necessarily surprising because Nebraska typically has a very strong indoor women's program. And this leads to other concerns that sand volleyball isn't presenting new opportunities but more formal off-season training for current indoor players.
The override vote is the result of objections from 63 NCAA schools. But a 2/3 majority (of whoever shows) is necessary to take sand volleyball off the list.

Former Texas A&M Diving Coach Files Retaliation Case

Kevin Wright, who was fired in September from his position as head coach of Texas A&M's diving team, has sued the university in state court, alleging he was terminated in retaliation for reporting concerns about gender discrimination in athletics. According to this article, which discusses the complaint, the precipitating incident occurred in the context of a 2008 investigation of the athletic department by the Office of Civil Rights. Wright had heard from one of his divers that the swim team coach, Steven Bultman, had asked a swimmer to lie to investigators in order to conceal the swim team's practice of assigning more female athletes to hotel rooms (4) than male athletes (2). Wright alleges that his email raising this to the attention of the athletic department -- along with subsequent emails addressing other gender equity concerns -- was met with "immediate hostility" which ultimately led to his termination the several months later.

Wright has filed suit under a Texas whistleblower protection statute that protects state employees. The article does not say whether the case includes a federal, Title IX retaliation claim as well, but on these facts it certainly could have. In the last few years, a number of coaches have won damage awards and settlements in similar retaliation cases.

Annual NCAA convention addresses arms race

The NCAA is holding its annual meeting this week down in warm, sunny Georgia--well it was supposed to b warm and sunny, anyway.
Of course more important things are on the agenda which should distract from the cold snap down south, including the athletics "arms race" which has many a university president, according to a recent report from the Knight Commission, very worried. And it's not just the small schools who are worried about where to find the money to remain competitive as the costs of recruiting, travel, and especially coaches' salaries are on the rise.
The arms race was on the agenda Tuesday where worries seemed to outweigh potential solutions such as some oversight entity that would (finally) mandate a uniform accounting system within athletic departments and perhaps even spending and salary guidelines across the board. But even the money-making schools have presidents who recognize that even successful programs will not continue indefinitely and are less-than-hopeful that viable solutions are forthcoming.
Also of concern, of course, is the more-than-likely cutting of teams that will occur if things are not reined in quickly. And with team cuts we get Title IX blame, according to Nancy Hogshead-Makar: "Undoubtedly Title IX will be seen as the cause of all the costs. This makes it very difficult for women to participate in athletics."

Student Whistleblower Loses Retaliation Case

A court in Arizona dismissed a Title IX case against the Gilbert Public Schools, in which the plaintiff argued she was retaliated against for reporting sexual comments by her coach. The plaintiff, Madison Power, was a sophomore on the basketball team when she reported to her parents and ultimately the school district that she had been made uncomfortable by the assistant coach when he made some comments of a sexual nature during a ride home from a tournament out of town. Based on this report, the school district decided not to hire the assistant coach for the subsequent school year.

Power alleges that she faced reprisal from the head coach, who was married to the terminated assistant coach, and other members of the basketball team. She alleges that the coach expressed anger about Power and defended her husband to other players. As a result of her report, she was demoted to junior varsity the following year, and that other members of the varsity team sought to punish her by tripping her, fouling her hard at practice, and calling her a bitch on a MySpace page.

But the court determined that Power's case does not constitute a violation of Title IX. The head coach was recused from tryouts and did not participate in the decision that assigned Power to junior varsity, so that allegation could not support a retaliation claim. The court also found that the the other students' behavior lacked requisite severity and did not deprive Power of educational opportunity. Moreover, the court found that the school district had responded appropriately when Power complained about the head coach an the harassing students, issuing warnings as the situation warranted.

Here, the plaintiff charged that was punished by her peers and her coach for reporting the sexual inappropriateness of her assistant coach. No student should face such reprisals. But in this case, the the school district's reasonable response to the situation insulated it from second-guessing by the court.

School District May Be Liable for Football Camp Harassment

A federal district court in California recently denied efforts of the Gustine (California) Unified School District to obtain summary judgment on Title IX claims stemming from peer harassment at a high school football camp. The plaintiff was a rising freshman at Gustine High School when he attended a three-day football camp coordinated by Gustine and another school. He alleges that while at camp, he was repeatedly subjected to physical and verbal abuse by upperclassmen. On the second day of camp, the upperclassmen held him down in the locker room, inserted a battery-operated air pump nozzle in his rectum, and then activated the pump for several seconds. Also, the harassers repeatedly called him homosexual epithets, grabbed him while he was in the shower, flashed and slapped him with their genitals, and pummelled him with pillow cases stuffed with equipment at a camp-sanctioned "pillow fight."

For the school district to be liable under Title IX, the plaintiff must establish that the harassment was severe and pervasive, motivated by his sex and gender, known to the school district, and met with the district's deliberate indifference. The court denied summary judgment to the school district because it determined that a jury could find these elements present in plaintiff's case. First, the fact that the plaintiff was sexually assaulted and -- although he endured camp -- later withdrew from school would support a jury's conclusion that the harassment was severe and pervasive. Second, though the school district argued that the harassment was motivated by the plaintiff's status as a freshman, the court determined that a jury could find that it was instead gender-motivated based on the homosexual epithets that accompanied the abuse. Third, even though the plaintiff did not report harassment during camp, the court reasoned that a jury could find that the camp's head coach had notice of the danger the upperclassmen posed because he had caught the same boys attempting to air pump assault on another victim, causing the coach to confiscate the air pump but take no further action against the perpetrators. Last, the court found that the district's response might constitute deliberate indifference in the eyes of the jury. After camp, an assistant coach discovered the assault on the plaintiff and reported it to the principal, who suspended the perpetrators from school. Notwithstanding this severe response, if the jury agrees that the head coach had notice during camp that the plaintiff was in danger, his failure to take action against the perpetrator at that time may satisfy the deliberate indifference standard.

This case sheds important light on the hazing that goes on in many athletic programs. In addition to laws in many states thatprotect students against hazing and bullying, Title IX applies when such misconduct is also sexual in nature. School districts wishing to protect their students from harassment and avoid liablity must train their coaches and teachers to recognize and respond to incidencts as sexual harassment and not dismiss it as horseplay or condone it as team hazing.

Decision: Roe v. Gustine Unified Sch. Dist., 2009 WL 5184688 (E.D. Cal. Dec. 22, 2009).

Complaint against Lebanon temporarily suspended

A complaint brought anonymously against Lebanon High School in Oregon has been suspended for now while the school collects data on gender equity in its athletics department.
At issue in the original complaint filed in November 2009 was the facilities and benefits received by the baseball team versus the softball team. Part of the disparity is allegedly due to fundraising that occurs on behalf of the baseball team which, as many of us know, does not absolve a school from providing an equitable experience.
A self-assessment, though, will look at more than just baseball versus softball. It will be--hopefully--a comprehensive examination of the school's athletic department and the experiences and opportunities it provides to its student athletes.

1/11 Update: Here is a link to an article that gives the timeline and steps OCR is requiring of Lebanon in order to drop the complaint.

District Court Upholds Title IX and JMU Sports Cuts

Recently a federal district court in Virginia upheld both Title IX and James Madison University's 2006 decision to eliminate ten athletic teams -- a move that impacted more men's teams (7) than women's (3), but which corrected the underrepresentation of women in athletics relative to their percentage of the student body. The plaintiff, Equity in Athletics Inc., sued the University and the Department of Education seeking reinstatement of the teams and a ruling of Title IX's invalidity. This is the fourth litigation loss for EIA, which already failed to convince a district, appellate, and the Supreme Court to grant a preliminary injunction that would have temporarily reinstated the teams.

Now, the federal district court in Virginia has examined EIA's case "on the merits" (rather than under the "likelihood of success on the merits" standard that applies to preliminary injunctions) and has determined that the case should be dismissed. The court rejected EIA's arguments that the regulatory interpretation of Title IX that contains the proportionality standard (the "Policy Interpretation") is unconstitutional and procedurally invalid. Like all courts that have considered this argument in the past, the court emphasized that the proportionality is not a mandate, but rather, one of three compliance options, and affirmed that both Title IX and the Equal Protection Clause allow schools to take sex into account in order to correct existing discrimination. The court also refused to read Supreme Court's recent decision that curtailed certain race-conscious remedies in schools to suggest that it is unlawful to take sex into account when making a decision to eliminate teams. It reasoned athletic opportunities are different from other educational opportunities because they are traditionally and lawfully sex-segregated, which makes it impossible to measure equality without taking gender into consideration.

Some other arguments that the court rejected:

• that "reciprocal teams" (men's and women's swimming, for example) have a First Amendment right to be associated together, which is violated by Title IX policy because it allows schools to terminate only one (teams are neither intimate nor expressive organizations, to which such rights apply).

• that the only measure of equality should be whether opportunities are proportional to expressed interest of each sex (such a standard would not remediate discrimination against the underrepresented sex).
  

• that the Department of Education did not receive authority to implement Title IX when it was created to partially replace the Department of Health, Education and Welfare (it did).
  

• that the Policy Interpretation is invalid because it was not promulgated after a period of public notice and comment, and was not signed by the President (those procedural requirements only apply to "regulations," not policies that simply fill in the details of more broadly-worded regulatory standard).

• that JMU violated the Equal Protection Clause when it considered sex in making a decision to cut athletic teams (same reasons why the Policy Interpretation is constitutional).
  

• that JMU violated athletes' constitutional right to due process (no recognized property interest in athletic participation).
  

• that JMU's athletic opportunities after the cuts violate the Policy Interpretation, because men are now the underrepresented sex by 2% (the standard is "substantial" proportionality, not exact proportionality, and other courts have upheld a similar small disparity).

• that JMU shortchanged female athletes by ~12% in the distribution of scholarship dollars (EIA did not purport to have current female athletes among its members, so it did not have standing to raise this claim).
  

EIA appears to have plans to appeal this decision to the Fourth Circuit Court of Appeals, which has already determined EIA was not likely to succeed on the merits.

Decision is: Equity in Athletics, Inc., v. Dep't of Educ., 2009 WL 5149869 (W.D. Va. Dec. 30, 2009)