Wednesday, December 15, 2010

Column Questions Title IX's Absence from Cheerleader's First Amendment Case

There's a good column at on the Fifth Circuit's September decision dismissing a student's claims that the school district violated her First Amendment rights when officials ordered her to cheer for another student-athlete whom she had accused of raping her several months before. While the facts of this case certainly do call First Amendment issues into question, i.e., does the cheerleader have a right to refuse to cheer in symbolic protest of a particular athlete and his conduct, and was school officials' response retaliation against her for reporting a popular student-athlete for rape? (for analysis of those issues, see here), columnist Wendy Murphy rightly points out that Title IX should have been at the foreground of this case. The student's lawyer apparently did not allege, and thus the courts did not consider, whether school officials' response to her allegations of rape constituted deliberate indifference that should have rendered the district liable under Title IX. But Murphy believes this would have been an easy argument to win. Apparently, school officials were under the false impression that they were not obligated to get involved with the case as it proceeded in criminal court, even though courts have said that such deference to law enforcement constitutes deliberate indifference. Rather than take any steps to investigate or address the matter on its own, the school let the accused student continue to play sports until his criminal conviction. As for the accuser, she was not offered any protection or even sympathy, as evidenced by the instance in which she attempted to refuse to cheer at a game for the accused student by name, but was ordered by the superintendent and the principal to cheer or go home (she chose the latter). This too violates clear Title IX precedent in the area of peer harassment, as courts have said that it is inappropriate to separate the victim from the perpetrator rather than the other way around.

So why was Title IX, the obvious source of relief and liability in this case, ignored by the lawyers, the courts, and the media until now? Murphy blames our society's reductionist tendency to view Title IX as a law only about athletic opportunity and I think that certainly comes into play. But let's imagine that early efforts to exempt sports from Title IX had passed. Would the law be popular instead as an anti-harassment law? I'm not so sure. I think it might just not be popular at all. Culturally speaking, we have a tendency to downplay sexual violence and to disregard it as a form of sex discrimination. We'd be wringing our hands about the lack of awareness about Title IX's application to sexual violence whether or not the law also applied to sports.

Sadly, this case represents a missed opportunity, both to offer some relief to the plaintiff and to raise awareness about sexual violence and sex discrimination in schools. Sadder still, the cases that do invoke Title IX in the context of sexual harassment and sexual violence -- the vast majority of judicial decisions rendered under Title IX today, as a survey of this blog would quickly reveal -- are not sending the message to potential plaintiffs, to school districts, or lawyers on either side about the role of law in this area. (It does not help matters that to learn about sex discrimination in law school, you'd have to take a class with "Women" or "Gender" in the title, and the people who take those classes are not necessarily the ones who need to be enlightened.) For these reasons, I'm particularly glad Wendy Murphy posted about this case. One column in the blogosphere (now two) won't change the culture of ignorance, but if we all keep talking about school's responsibilities to protect students from sexual harassment and sexual violence, eventually the message will get through.