Mediation in UD track complaint

News out of Delaware: the University has agreed to mediation in an attempt to obtain an Early Complaint Resolution. If mediation is unsuccessful (supporters of the men's track team have said the only satisfactory resolution is reinstatement) OCR will go forward with its investigation.
I have to say, I'm pretty surprised. While I agree that university officials should have been communicating more openly and more honestly about the situation, I don't know why they felt pressured into mediation, when it appears they have not violated Title IX. Again, if there are other civil rights issues present that could have triggered an investigation, we don't know about them.
And it seems the secrecy theme continues. Because both sides have signed a confidentiality agreement. So while many have been seeking greater candor, it does not seem that this will be forthcoming. It's unfortunate because it means those seeking explanations (and yes, we're curious too!) won't actually get them.

More on the Delaware track team complaint

The complaint filed with OCR by those trying to save the Delaware men's track team remains in the news this week. And Erin was asked to comment on the situation for The News Journal in an article in which we learned more about the complaint and motivations.
Erin's comments further or better clarify my own from the other day about the complaint and forthcoming investigation. It remains unclear what OCR will be investigating. People associated with the team and the complaint have said that they are seeking publicity and answers and accountability. And I understand all these motivations but remain unconvinced that filing an OCR complaint suggesting that the way in which Delaware chose to enact Title IX, specifically the component requiring the provision of equitable opportunities for participation.
The concept of reverse discrimination is part of the backlash rhetoric. And while many who support the Delaware men's track athletes say they are not upset with or opposed to Title IX, the filing of this complaint using this language contributes to the problem. And I was surprised to see that the lawyer who represented the equestrian team recruit at Delaware State is now affiliated with this complaint.
Again, I support those affected by the cuts in their efforts to get answers and hold the administration accountable. But I don't really think there is some secret, nefarious agenda that is going to be revealed by the investigation of this complaint. It seems that Delaware has prioritized other things in the athletic department. It seems most athletic departments operate rather unapologetically under a corporate model that measures success in revenue dollars and publicity rather than the personal experiences of individual student-athletes. It is this system that should be questioned.
There are likely many different "truths" here. I wonder which one will come out on top.

Universities Cheat to Show Title IX Compliance, NYT Reports

When the Quinnipiac litigation last year exposed certain instances of roster manipulation -- adding male players and cutting female player after the reporting deadline -- I kept hearing people ask "how common is this?" My gut was that Quinnipiac was not the only school to engage in roster shenanigans that make their women's teams appear larger and their men's teams smaller, in efforts to create the illusion of compliance with the proportionality prong of Title IX. But I didn't know which other schools were doing it nor the extent of the problem.

After reading today's groundbreaking story in the New York Times, I now know, cheating is far more prevalent and even more egregious than the Quinnipiac example. The University of South Florida, for example, included many athletes from other sports on its 71-member women's cross-country team roster-- athletes who never competed in meets, practiced, or some case even knew that they were listed as members of the team. Other schools invite walk-on women to "join" the team, but tell them not to bother showing up to games and practices even though they are listed on the roster. Still others -- including the national champions Texas A&M women's basketball team -- count the women's team's male practice players as opportunities in women's sports. All of these examples are meant to create the illusion, on paper, of gender equity.

Title IX requires that universities offer a balance of athletic opportunities that reflects the percentage of men and women in the student body, or alternatively, to at least offer enough athletic opportunities to meet the interests and abilities of the underrepresented sex. Title IX will also give credit for trying, as another compliance option is to show continuing progress of expanding opportunities for the underrepresented sex. But rather than putting in the real effort to show continuing progress, or to ensure that there is no unmet interest, universities are manipulating the data to give the appearance of compliance under the first prong. And lest anyone be concerned that these are "innocent" universities "forced" into this situation because they can't afford to add real opportunities for women, let's consider whether this same ostensible financial hardship applies when it comes to adding men's sports. Apparently, it does not. According to the article, South Florida's egregious roster manipulation was a response to its decision in 1997 to add 100 new opportunities for men, in the sport of football. Rather than investing in a leveling-up approach, South Florida took an existing imbalance and made it worse by adding opportunities -- expensive ones -- for the overrepresented sex. So of course there's less money now to add opportunities for women. But that's never a justification cheating, and it rings particular hollow when the university's own decisions to create or exacerbate the disparity is at the root of its compliance problem.

In sum, the NYT is the bearer of bad news when it exposes the extent and scope of universities' false reports of gender equity. I wish that we could believe universities who report gender equity in athletics. But at least the good news is that after this public exposure, investigators, complainants, plaintiffs, bloggers, and other watchdogs are less likely to be duped by false numbers going forward. We'll dig below the surface of universities' reported data and demand stronger evidence in support of universities' claims to gender equity. When they realize that their false numbers will not protect them, maybe they'll start reporting the real ones.

Article Seeks Title IX's Application to Transgender Student Harassment

A law student's article in the Texas Review of Law and Politics Journal seeks to leverage Title IX's prohibition on sex discrimination to offer fully protection against harassment to transgender students. Citing statistics from GLSEN, the author, Tina Sohaili, points out that transgender students are targeted for bullying and harassment more frequently than any other student group. Such harassment frequently target the students' personal characteristics, such as appearance, clothes, and voice, as not matching the masculine or feminine stereotypes associated with the transgender students' assigned sex.

Drawing on analogous employment discrimination law, Sohaili argues that the liability Title IX imposes on school districts that ignore sexual harassment between peers covers peer harassment motivated by transgender students' gender nonconformity. She supports this argument by pointing out that some lower courts have already recognized harassment on the basis of gender nonconformity a subset of sex discrimination in cases that do not involve transgender students.

Importantly, while Sohaili argues that courts should construe Title IX to afford this protection to transgender students, she recognizes that courts have not universally recognized sex discrimination law's application to gender nonconformity in the employment context. Therefore, while this interpretation affords the best protection to transgender students under federal law, even stronger protection would result from changes to the law -- such as that proposed in the Student Nondiscrimination Act -- which expressly prohibit discrimination on the basis of not only sex, but actual or perceived sexual orientation, gender identity, or expression.

Citation: Tina Sohaili, Securing Safe Schools: Using Title IX Liability to Address Peer Harassment of Transgender Students, 20 Tex. Rev. L & Politics 79 (2011).

Delaware athletes filed OCR complaint

There has been a lot of press about the cutting of men's outdoor track and cross country at University of Delaware since the announcement was made in January.
We haven't commented on it because it has been the usual blame game: blame on Title IX mostly, but also blame on administrators, and blame on the economy. None of it very productive.
But the news out today about the filing of an OCR complaint is quite interesting. The student athletes who were affected by the cuts have filed the complaint asking OCR to investigate whether there was gender discrimination involved in the decision to make the cuts. The athletes, and others, believe this is an instance of reverse discrimination.
We're a little surprised and concerned that OCR has said that it will indeed investigate the complaint--unless there's something more to the complaint that we don't know about. But Title IX protects the historically underrepresented sex. Men at UD have not been underrepresented in athletics.
Yes, it is lousy that such a storied program is being cut, and the manner in which it was done doesn't reflect too well on the university. But it isn't reverse discrimination. Equity in Athletics tried to make that argument (in the courts) in the JMU case and it didn't work there. We suspect it won't work here either.

Mankato cutting sports

Somehow it flew under our radar last fall that Minnesota State University Mankato was planning on cutting four sports: men's swimming/diving, women's bowling, and men's and women's tennis.
But they indeed were. And then the student-athletes and their supporters started a campaign to save their sports for at least three years by increasing student fees. The students voted on the non-binding referendum earlier this week. And it passed.
But the university president has opted to go forth with the cuts anyway--with one exception: women's tennis which is being kept for conference affiliation reasons.
Several years ago, I noted that Mankato had been considering cutting sports but opted instead to manage their rosters better and add a women's sport. They believed, at the time, that this would actually save money in the long run. It was a nice idea, but apparently it didn't work out. And the sport that was added--women's bowling--is now being cut.
No explanation from the president on why he chose not to follow the student vote. Title IX does not seem to be a factor in the cuts. Mankato remains in compliance with prong one.

Washington School District Enters Voluntary Agreement to Comply with Title IX

The Office for Civil Rights accepted a voluntary agreement from Federal Way School District, one of the 26 school districts in Washington State named in Title IX complaint recently accepted by the agency. The complaint alleged that a participation gap of -12.1 percentage points exists between the percent of Federal Way high school students who are female and the percent of athletic opportunities they receive -- the equivalent of 76 actual opportunities -- and that this disparity has been widening, not shrinking, in recent years. A somewhat smaller 8 percentage point gap is reported in the press.

Federal Way has agreed to conduct immediately a detailed analysis of its compliance with the athletics' regulation under each of its three prongs. It also agreed to add new athletic opportunities for girls in the coming year, if the results of its analysis reveal compliance with neither.

On the one hand, it is frustrating to see a school district enter into a formal agreement to do exactly what the law already requires it to do, comply with Title IX under one of the three prongs. But on the other hand, the complaint process has effectively put Federal Way's feet to the fire (along with a couple dozen other districts in the state) to come into compliance in the coming year and under the monitoring of OCR, which will review the districts' analysis and decisionmaking at multiple steps in the process. While the voluntary agreement does not produce a finding of noncompliance or related penalties, it is the mechanism that will most swiftly and fully end the disparity in opportunities that exists for girls in Washington state.

Former coach files separate lawsuit

Amber Parker, the former coach of the girls' high school basketball team in Franklin County, Indiana, has filed a lawsuit against the district alleging that the non-renewal of her teaching and coaching contract was due to her other lawsuit claiming disparity in scheduling of girls' and boys' basketball games. Parker had to "hand off" that lawsuit when she moved to Massachusetts (to those who had standing in the case as parents of current players). It is currently under appeal in the 7th Circuit Court of Appeals in Chicago.
Parker is claiming that her firing was a direct result of her public comments (and subsequent lawsuit) about the disparities in scheduling and that the superintendent told a school board member that he wanted Parker fired. The complaint also notes that the contracts of two other varsity coaches were renewed the year Parker was let go even though their teams had worse records.

Addressing Title IX in urban and minority populations

Two items of note: one current, one forthcoming.
Out now is the book/guide, Hey Shorty!: A Guide to Combating Sexual Harassment and Violence in Schools and on the Streets.
It is based on the work done in the non-profit Girls for Gender Equity based on Brooklyn. The group is "committed to the physical,, psychological, social and economic development of girls and women. Through education, organizing and physical fitness, Girls for Gender Equity encourages communities to remove barriers and create opportunities for girls and women to live self-determined lives." Based on Brooklyn, the group caters primarily to urban girls of color. Hey Shorty! (Feminist Press) presents the model developed by GGE on how to teach young people how to address and define sexual harassment as well as some of its effects. According to the blurb, the guide is "geared toward students, parents, teachers, policy makers, and activists, this book is an excellent model for building awareness and creating change in any community."

We haven't seen a copy of the guide yet, but the "look inside" feature at the Amazon.com shows that Title IX is mentioned in the guide.
The title, by the way, is a common call heard by girls as they walk the streets of their communities and the halls of their schools. Shorty is slang for a "sexually attractive girl with both childlike and feminine attributes in terms of body and behavior." In other words, not innocuous and not having anything to do with one's height.

And, not out yet, but we're eagerly awaiting its release, is a documentary film (link to the Chronicle of Higher Education, subscription required to read the whole article), about the effects--or lack thereof--of Title IX in urban schools. The movie, In the Game, is from the production company that gave us Hoops Dreams and is at least a year away from being available to the public. Director Maria Finitzo features three different stories: an inner-city girls' soccer team, a professional women's basketball team, and a group of young girls in the Chicago public schools who are investigating issues of gender equity in their schools.
Even from the little I have heard thus far about the film, it seems like it will start to fill some of the gaps in the literature around the law and its application to urban schools and effects on the girls in those communities. And the stories look like they will be quite compelling.

Commentary on Yale and "Dear Colleague"

There has been a significant amount of press about both the complaint filed by Yale students alleging the university has not done enough to remedy sexual harassment and the Obama administration's "Dear Colleague" letter about dealing with harassment. Often articles and commentary discuss the two together. What has been interesting is some of the backlash. Wendy Kaminer had a piece in the Atlantic last week expressing her libertarian feminist opinion on the complaint and Dear Colleague letter, which again we should note is not a change in the policy--just a reminder. Kaminer, the lonely libertarian feminist, says that the complaint (and I would assume by extension the whole complaint process) is more feminine than feminist because it relies on "the assumption that women are incapable of fending for themselves in the marketplace of epithets or ideas, the belief that women are rendered helpless by misogynist speech and the sexist tantrums of their male peers." Really? We haven't learned by now, especially with preponderance of bullying among young children, that the whole "sticks and stones" argument just doesn't hold water anymore (if it ever did). That words are actions too, that they create an atmosphere, that they construct and reveal power relations. There is no such thing as "pure speech"--words are not just words. I think Kaminer is wrong; this is not "feminine timidity" and women (and some men) hiding behind government rules by using the complaint process. This is feminism. It's actually classic liberal feminism: using the tools already in existence in the current system to change the conditions to make them more equitable for women so they can do things like have equal access to education. I don't see taking action as in any way behaving timidly. Amy Alkon at Mensnewsdaily basically reprints a large section of Kaminer's editorial but with the headline: Feminists Looking to Big Government to Act all Big Daddy. Yeah, words have no power. Also of note is what and who is not being talked about. In her column, Wendy Murphy, lawyer, legal analyst, and adjunct law professor notes that she herself has filed complaints with OCR over the policies on sexual harassment at several campuses--most notably Harvard Law School. The school is "under investigation for a policy of delaying sexual assault hearings on campus until law enforcement officials complete their investigation. This tactic – known as “running out the clock” – is used by many schools as a way of avoiding oversight by OCR because when a school puts off resolving a case until the students involved are on the verge of graduation, violations of Title IX cannot be remedied in any meaningful way." Murphy surmises that Harvard will change its policy before OCR finishes its investigation and that the institution will be praised for doing so. The difference in the publicity is likely because of the filers. Anyone can file an OCR complaint, and it is probably of greater interest to the media and the rest of us that it was 16 current and former Yale students who are sharing their stories. Plus the story allows media outlets to pull up the rather infamous incidents at Yale from the past few years.

5th Circuit Issues Decision in Single-Sex Education Case

The Fifth Circuit Court of Appeals issued a decision today in the case challenging the Vermilion (Louisiana) School Board's decision to institute single-sex classes at Rene A. Rost Middle School. The parent of female students who had been placed in all-girls classes in core subjects sued the school district, challenging the constitutionality of the single-sex classes under the Equal Protection Clause. The plaintiff also challenged the classes' validity under Title IX, which generally prohibits schools excluding students from any class or activity based on sex, but provides a narrow exception for single-sex classes that promote an identified educational objective, are based on genuine justifications, not generalizations and stereotypes, and which provide students the option to select co-ed alternative instead.

The district court had earlier denied the plaintiff's request for a preliminary injunction and allowed the single- sex classes at Rost to continue. Though the district court acknowledged that Vermilion's single-sex classes were justified by experimental data that had been falsified by the principal (an issue that was the subject of this prior post), the court reasoned that because Vermilion's discrimination was not intentional, it did not violate the Equal Protection Clause. It did not consider the plaintiff's alternative argument under Title IX.

Today's decision affirms the lower court's denial of the injunction, reasoning that it is too late in the school year to order an immediate change. Significantly, however, the appellate court corrects the lower court's misapplication of the Equal Protection standard. Rather than intentional discrimination, the appropriate standard is intermediate scrutiny -- when state actors classify based on sex, they must have an "exceedingly persuasive justification" for the classification. Because it's hard to imagine a court concluding that the principal's falsified justification was a "persuasive" one, I think this aspect of the decision makes it much more likely that the plaintiff will prevail on the merits when the question of the constitutionality of Vermilion's single-sex classes returns to the district court. Moreover, the appellate court faulted the lower court for failing to consider plaintiff's argument that the single-sex classes violate Title IX, so this too will provide alternate grounds for the plaintiff to prevail.

The appellate court today acknowledged that if Vermilion Parish curtails its single-sex classes, the litigation will be moot. If it continues, however, the case will proceed and the district court will analyze the constitutionality and statutory validity of its program under the correct standards of Equal Protection and Title IX.

Lawsuit over football attacks in New Mexico

Parents of an alleged victim of sexual assault in Albuquerque, New Mexico have filed a lawsuit against the Los Lunas school board, the superintendent, the high school principal, and five football coaches. News came out last fall (we missed it--sorry) that incidents of hazing had occurred within the Valencia High School football team. There are three alleged victims. It is the parent of one of these three who has filed the lawsuit. There was a criminal investigation of the incidents, but it does not appear that any formal action has been taken since the findings of that investigation were turned over to the District Attorney's office. Someone from the DA's office said decisions about charges would be made at the end of this month. The lawsuit alleges that the victim experienced physical and sexual abuse at the hands of three senior members of the team while other members of the team looked on and cheered. It is being referred to as a hazing incident--again one of several that occurred last fall within the team. The lawsuit alleges both Title IX and due process violations. The coaches were allegedly in another part of the locker room while the incident was taking place and two of the five named coaches are the parents of two of alleged perpetrators. So it will be interesting to see if there is enough evidence to prove that school authorities had awareness of the harassment and failed to remedy it.

OCR "Dear Colleague" Letter Addresses Sexual Harassment in Schools

The Department of Education's Office for Civil Rights today released a new guidance document geared to help schools, colleges, and universities understand and implement their responsibilities under Title IX to prevent and correct sexual harassment. The "Dear Colleague" Letter put particular focus to sexual violence like rape and sexual assault, which are forms of sexual harassment and thus actionable under Title IX. With regards to all manners of sexual harassment, an institution's responsibility under Title IX is to take immediate action to address harassment that it knows or should know about. It should have a policy that defines sexual harassment and outlines the grievance procedure that a student can use to file a complaint. It must ensure that the policy is widely disseminated and understood, and that appropriate staff are trained in recognizing and addressing sexual harassment.

It is evident from the guidance that OCR is trying to keep other schools from making mistakes that others have made in recent years. For example, the guidance clarifies that when sexual violence is first reported to the athletic department, such as in cases involving student-athletes, the athletic department must make sure that the student has access to the same grievance procedure that is available to all students. It cannot seek to handle the matter within the athletic department in an attempt to limit the athlete's or the athletic department's exposure to sanctions or negative publicity. In recent years, we've written about several universities that have done exactly that, including the University of Washington and the University of Iowa.

The guidance also makes clear that a school's response to charges of sexual violence cannot be conditioned on the results of the results of a criminal investigation. Schools cannot delay their own investigations pending findings by police, or condition university sanctions or other responses on a prosecutor's decision to criminally convict. We've posted about this problem as well, such as in a recent case against Dominican College. Relatedly, schools should not confuse their own response with a criminal response. They must employ the civil "preponderance of evidence" standard when making findings about whether sexual harassment did or did not occur. The stricter "clear and convincing" standard, while appropriate for law enforcement and the imposition of criminal sanctions, should not apply in university judicial proceedings where criminal sanctions are not at stake.

The guidance reminds schools that pending outcome of criminal or university investigation, they should take immediate steps to protect the complaining student, such as changing students' living arrangements and schedules, while minimize the burden on the complaining student, and providing the complaining student with access to counseling and support. For examples of a university's inappropriate response to charges of sexual violence, see recent posts about Arizona State (here and here).

The guidance also addresses what OCR recognizes as "confusion" that my derive from seemingly conflicting mandates of Title IX and the Federal Educational Records Privacy Act, or FERPA, which prohibits unauthorized disclosures of student's records. OCR clarifies that universities may disclose to the campus community a finding that a student has perpetrated an act of sexual violence in violation of university policy, which is necessary to protect students from further harm. In other matters involving sexual harassment, the victim has the right to know the final results of the university's investigation and sanction, including a determination no violation has not been committed. Moreover, federal law known as the Clery Act requires institutions to report campus crimes, including sexual assault, an obligation that does not yield to the privacy rights of a perpetrator found guilty. A university's failure to report criminal sexual violence was at issue in OCR's recent investigation and settlement with Eastern Michigan University.

Overall, OCR's guidance letter does not create new rights and duties under Title IX, but rather, seeks to clarify existing rights and responsibilities in order to ensure that help universities protect students and avoid liability. This surely is much-needed reminder, as demonstrated by the recent and prevalent examples mentioned here of universities' botched responses to sexual harassment and sexual violence. Responsible schools and universities will use the guidance letter as an opportunity to self-inventory their policies and practices related to sexual harassment and strengthen or revise them as needed.

Yale students/alums file complaint

Citing a hostile sexual environment on campus, 16 current and former Yale University students have filed a Title IX complaint with the Office of Civil Rights. The complainants have said the university's internal processes for dealing with sexual harassment and misconduct have not been effective. Such conduct has made national news in the past few years. Most notable was last year's incident involving the Delta Kappa Epsilon fraternity. Pledges were publicly chanting on campus "No means yes, and yes means anal"--among other misogynist things. Several years ago, another fraternity's pledges stood outside the campus Women's Center with signs that read "We love Yale sluts." The complaint includes several anonymous testimonies by some of the 16 complainants. OCR will go to the Yale campus to perform its own assessment of the campus climate. Despite the serious nature of this complaint and the incidents that inspired it, it's good to see that Yale students, decades later, still have that activist spirit and Title IX awareness. The photo that is featured on this blog (by permission of 50 Eggs Films) is of a Yale rower protesting the lack of facilities for female rowers in 1976.