Sexual Harassment Roundup

A federal district court in Massachusetts has refused to dismiss Title IX and other claims against Palmer Public Schools stemming from a male guidance counselor's sexual relationship with a female high school student. According to the court, plaintiff sufficiently alleged the required notice and deliberate indifference. In particular, the plaintiff alleged that prior to the guidance counselor's sexual affair with her, school officials had notice of allegations that he had had sex with another student and were concerned about his tendency to get "too cozy" with students. Yet, he was not disciplined or supervised in any way to protect female students. The only actions school officials did take were stopping a female student from placing her legs on his, directing him to remove pictures of female students from his office wall, and "contemplating—but never effectuating—" transferring him to the middle school. Doe v. Fournier, 2012 WL 591669 (D. Mass. Feb. 22, 2012).

In contrast, a federal district court in Washington held that plaintiffs did not sufficiently allege that school officials had notice and were deliberately indifferent to signs that a school counselor posed a risk to students prior to having molested the plaintiffs. Plaintiffs had argued that school officials should have been on notice of this risk because they knew that the counselor had once taken a student away from school during lunch hour (with the parent's permission) and that the counselor had once massaged a student in his office. These allegations, if true, do not provide a sufficient basis for the court to conclude that school officials had actual notice that the counselor was or could become a child molester. Doe v. Coleville Sch. Dist, 2012 WL 554430 (E.D. Wash. Feb. 21, 2012).

The Court of Appeals for the Sixth Circuit recently affirmed a lower court's decision to dismiss a Title IX case against a Michigan school district brought by a plaintiff alleging that the school was indifferent to the risk of sexual assault posed by another student. The appellate court rejected plaintiff's argument that the perpetrating student's lengthy history of disciplinary policies, including acts of sexual harassment that took place at other schools, put the school on notice and triggered a responsibility to protect the plaintiff from assault. Interpreting the notice requirement more narrowly than other courts, this court held that acts of harassment against other victims are not sufficient to put a school district on notice of the risk of harm in a particular plaintiff's case. Pahssen v. Merrill Community Schools,2012 WL 333779 (6th Cir. Feb. 3 2012).

Lastly, a federal district court in Louisiana dismissed Title IX charges against a school stemming from the sexual assault of a female middle school student plaintiff by three male peers. The plaintiff argued that school officials were informed of the first incident of harassment, which occurred in January 2008, but did not take sufficient steps to protect her from a second incident, which occurred in March of that same year. The court reasoned that while, in retrospect, more could have been done to punish the perpetrators and protect the victim, the school's response was not unreasonable in the moment, having required each perpetrator to serve a four-day out-of-school suspension followed by a period of in-school suspension of 14 days for the primary perpetrators and two days for the less-responsible perpetrator. However, the court agreed that the plaintiff could continue to litigate her retaliation claim, based on evidence that her residency was investigated and she was expelled from the district after complaining about the January incident, as well as evidence suggesting that the plaintiff was singled out for such investigation. Pemberton v. West Feliciana Parish School Bd.,2012 WL 443860 (M.D.La., Feb. 10, 2012).

Standards of journalism and the Title IX blame game

Ebuz and I often discuss the need for greater awareness of the intricacies of Title IX--or even just the basic facts--that are free from common misconceptions. We wish, for example, that Title IX training for athletic department administrators happened before violations occurred.
We also wish, somewhat in vain, that the media would become better informed on Title IX issues before reporters and columnists printed stories about the law.
But headlines like "How Title IX Hurts Female Athletes" fail to surprise us anymore. What is somewhat surprising is when such a headline--actually this exact headline--is found on The Atlantic's web site.
And I am sure--based on the numerous angry comments--that The Atlantic is regretting running this piece by two women: a journalist and a cross-country coach. The logic is faulty throughout. Most egregious is when the authors say that Title IX has exposed more girls to sexual assault by male coaches.
There are the old arguments about ACL injuries and concussions. An argument based in--thank you Michael Messner--soft essentialism. (There's a decent amount of hard essentialism in here, too.) Because there is no mention about the general danger of competitive athletics and the injuries suffered by boys--like all those undiagnosed concussions. Or the way boys experience pressure to compete despite injury.
Attempts by the writers to get facts by experts to back up their points fail:

For female players, the gravest consequence of having male coaches has been an increased risk of sexual abuse. Pediatrician Ken Feldman, the recently retired medical director of the Children's Protection Program at Seattle Children's Hospital, says that although there is no formal tracking of sexual abuse by coaches per se, "girls will be more victimized than boys."

No studies. No data. But girls will be victimized more. Based on what evidence?
Yes, please, let's interrogate things like injury rates and types, the decline of female coaches and the absence of female coaches in men's sports, and the secrecy around sexual abuse of both boys and girls by coaches. But saying "Title IX did this" is not an interrogation. And it is not helpful in understanding the complexities behind such situations.

You know what hurts female athletes?
Misconceptions about them, their experiences, and how they came to be.
Misinformed coverage by media outlets.

I am disappointed in The Atlantic. I hope they more carefully vet what gets published under their moniker in the future.

The feminist fable and soft essentialism

The Title IX Blog is a huge fan of Dr. Michael Messner. Messner is the type of academic I certainly strive to emulate. His work is impressive and thought-provoking, practical and accessible.
And in the June 2011 issue of the Sociology of Sport Journal Messner had an article that made me say "damn, I wish I had written that"--of course I would have had to think of it first. (It also had a handy chart!)
In the piece "Gender Ideologies, Youth Sports, and the Production of Soft Essentialism," Messner uses his research on the gender ideologies he observed in youth sports, providing a theoretical context in which to understand these constructions. He calls it soft essentialism.
Soft essentialism is a gender ideology based on the perceived experiences of the professional class (though it functions hegemonically) in the United States in this era of "post-feminism." It is marked by a belief in choice--for girls and women, but leaves unexamined the possibility of choice for boys and men. It is, as Messner notes, a triumph for liberal feminism which has advocated for individual success through access to options/venues/professions from which women have been historically barred. Title IX, of course, is a product of liberal feminism.
While supportive of access to sport opportunities for women and girls, Messner writes of the problems with the "triumphant feminist tale" in women's sport history (p. 152). First--and this is something I try to explain to my students all the time--progress is not linear. The idea that "things" are better now than they were at some unnamed point in the past is too easy and not supported by history. This problematic teleology also erases differences in class, race, ability, age, geography and various other markers that greatly affect a girl's access to opportunities and "choices" generally.
Finally one of the most interesting paradigm-shifting points Messner makes is that soft essentialism leaves boys and men unmarked. Girls can choose to do sports or become mothers or work or wear heels and dresses or get married. Despite shifts in the construction of masculinity, boys are still largely deprived of the same level of flexibility (noting again that very few women have such flexibility when we take into account age, race, and class).
How does this relate to Title IX? The argument that anti-IXers proffer is often rooted in soft essentialism. Opportunities for girls--which they can choose or not--take away, the argument goes, opportunities for boys. Sports for boys are viewed as less of a choice and more innate--something they are "naturally" drawn to. Both girls and boys suffer when society interprets gender roles in this way. Boys are not allowed to be "flexible choosers." We have seen this before when people speak out against Title IX's alleged quota system. They note that girls like to do many different things (like band and drama and chorus and yearbook and newspaper and community service) while boys mostly just like sports. And, on the other side of the gender binary, when girls "choose" to do something else, this is seen as an unrestricted, freely made choice reflecting some kind of innate interest level.
Messner, in the conclusion, brings up the idea of integrating sport, noting its potential benefits and downsides and pointing to other research on the issue. I believe that in order for this to happen we need to value all versions of sport--in practice not just in theory--from recreational to professional. The competitive model of sport (in combination with hegemonic gender ideologies) that is most prevalent in our culture right now presents, I believe, the biggest obstacle to integration.

Research on attitudes toward girls' participation

A recently published (June 2011) research note on  attitudes toward participation opportunities for girls in sports found that high school students are generally supportive of providing sport opportunities for girls. The research, done by Marni Brown, Erin Ruel, and Stephanie Medley-Rath and published in the Sociology of Sport Journal, examined the attitudes of high school sophomores all over the country. They found that girls are significantly more supportive than boys with competitive male athletes being even less supportive. Racial minorities (with the exception of Latinos) demonstrated greater support for opportunities for girls than did their white peers. When they examined attitudes using socioeconomic class as a variable, the researchers found that as class status increased, support decreased. And lest we think that the northeast is most liberal enclave of all, the study found that support of opportunities for girls by northeasterners was not significantly different than that of southerners.
But again, and in contrast to similar studies of younger students, there was a finding of general support among all demographic groups. The authors speculate that one possible reason for this support is both age and the effects of Title IX in increasing opportunities for girls.

Castle Rock issues in front of school board

After some delays, the concerns of parents of Castle Rock High School student-athletes in Washington will be addressed by the school board in the next week and a half. 
As we have written about before, parents of girls on the soccer team asked for and were denied access to the football field (which has lights) for games that were being cut short due to darkness. The superintendent attempted to address the concerns, but parents were not entirely pleased with her recommendations, including additional training in gender equity issues for the school's athletic director. Some involved believe that training would not work for AD Neil Williamson because he knew that his decision was discriminatory. Some also feel that the recommendation for an athletic advisory committee would just add an additional level of bureaucracy they would have to negotiate.
Additionally, in a non-Title IX issue, parents requested that the original unlit field be made handicapped accessible. But apparently the accommodations are less than ideal. A portable accessible bathroom is in a grassy area that those in wheelchairs would find difficult, if  not impossible, to traverse.
While the school board has implied that some girls' soccer games will be scheduled in the football field, it seems that the discord created over the way the situation has been handled may have longer-lasting effects.
If, when the board issues its decision on the matter(s), parents are displeased with the resolution, the district will likely find itself a party in a lawsuit which, if previous cases are any indication, will likely reveal additional inequities. 

USC equestrians to receive locker room

A gender equity consultant hired by the University of Southern California found that the university must remedy an equal treatment disparity. Apparently, a problem about which the athletic department has been well aware will be fixed soon(ish--dependent on funding). The equestrian team is getting a locker room right next to its practice facility. There is a "lounge" there currently but no showers or lockers. As part of the new facility, which is expected to cost just under half a million dollars, a tack room will be added where students can store saddles.
No information on the above linked article about why USC hired a gender equity consultant or if s/he found anything else of note.
What I found interesting was that the team, which won the national championships in 2005, has grown since that time. The team now averages around 40 riders (and there will be 40 lockers in the new facility). The year it won the championship it had around 25 members. This roster growth offers come insight into how the school is demonstrating compliance with Title IX's equal opportunity provision. Good to see that as they add roster spots, they are also paying attention to the quality of the opportunities provided.

Article Proposes Scrutiny for Schools' Prong One Compliance by Contraction

In a new article in the DePaul Journal of Sports Law and Contemporary Problems, three authors propose that OCR should strictly scrutinize schools' decisions to comply with prong one by cutting men's teams. As the authors explain:

The first prong of the Title IX compliance test is currently abused and should not serve as a safe harbor for institutions unwilling to fund additional female participation opportunities. Strict scrutiny review of all Title IX compliance grievances would better protect educational student-athlete experiences. A “2011 Clarification” implementing this standard would hold financially capable schools responsible for meeting the viable athletics interests of all students rather than cutting educational opportunities to divert funds for football and basketball. The option of reaching Title IX compliance through reduction of men's non-revenue generating athletic programs should be used only as a last resort by athletic departments that truly cannot afford them. Under this standard, if male student-athletes' opportunities are cut, they can file a Title IX grievance requiring the university to prove the action furthers the compelling interest of increasing female opportunities and that no less restrictive means exist. The use of strict scrutiny in a Title IX setting would not always prove fatal to compliance measures because legitimate cuts would survive the standard. Instead, the use of a strict scrutiny standard for Title IX would provide much needed protection against the use of illegitimate and unnecessary means under the guise of remedying past discrimination.

My understanding is that under the authors' proposed standard, a university's decision to cut an inexpensive men's sport like track would not survive "strict scrutiny," because it doesn't free up any money to re-allocate to address existing disparities in women's sports. That would leave universities seeking to comply with the proportionality prong with the choice of either adding women's teams, or cutting back on the doesn't-generate-as-much-revenue-as-you-probably-think sports of football and basketball. Option A would be good for women's sports. Option B would still be bad for the men's teams that would be targeted instead, but the scrutiny on those sports could help curb rampant commercialism and arms-race spending in big-time college sports. It's an interesting thought.

Article is: Jesse M. Rappole, Thomas A. Baker III, and Kevin K. Byon, Exposing the Shell Game: The Need for a Narrowly Tailored Approach to Title IX, 8 DePaul Journal of Sports Law and Social Problems 1 (2011).

$1.35 Million Settlement Ends UC Davis Litigation

Last August we blogged about the district court decision in the U.C. Davis case, in which the court found that the university did not comply with Title IX's requirement of equitable opportunity under either prong of the three-prong test during the time that the plaintiffs were students. A trial on damages was set to occur a month from now, but yesterday the parties settled rather than continue to litigate the question of how Davis would make it up to the prevailing plaintiffs. The parties agreed that Davis will pay plaintiffs' attorneys $1.35 million to cover the costs of litigation.

The plaintiffs, who wanted to wrestle for Davis, but were cut from the men's team and did not have a team of their own, are reportedly pleased with the final outcome of this case, which produced favorable judicial precedent that a university is not in compliance with prong two if it cuts women's opportunities without replacing them.

Retaliation Case Against Florida School District Survives Motion to Dismiss

In Florida, a federal district court judge has denied the Citrus County School Board's motion to dismiss claims filed by students who allege they were retaliated against after one of them reported that she was "offended and uncomfortable" by sexual behavior of their soccer coaches. As we noted in an earlier post, the case began when a female high school soccer player named Stacey Bigge and her teammate known in the complaint as A.M. reported to their parents that they were uncomfortable with their coaches' tendencies to make sexual comments, which included remakes about players' physicality and genitalia, and that on one occasion, a coach pulled down a player's pants. After their parents reported this conduct to school district officials, the coaches became threatening and intimidating to Stacey and A.M., interrogating them in front of their teammates and threatening to disband the team because of what they did. Eventually, the players quit to avoid this hostility. Later, Stacey and her sister Kathryn Bigge were ordered to be transferred to another high school after the coaches then told the school officials that the Bigges lived outside the district. This transfer order was rescinded after the Bigges' father supplied proof of residency.

Both Bigge sisters sued Citrus County School Board, alleging that the threat to transfer them to another high school was retaliation for Stacey's complaints about the coaches' harassing conduct. The school board argued that Kathryn Bigge's claim for damages on this retaliation theory should be dismissed because she was not the person who engaged in the requisite "protected conduct" by complaining about the coaches' behavior, her sister was. But the court rejected this argument, applying the Supreme Court's recent decision in an employment law case that a whistleblower's fiance could challenge the retaliation directed at him in response to the whistleblower's complaint about sex discrimination on the job. The judge concluded that the threats against Kathryn were actionable on a theory of retaliation because it was "reasonable to infer that the School Board’s threat to transfer Kathryn Bigge to another school district (a threat that was allegedly made in direct response to the Plaintiffs’ complaints) would dissuade her father and sister from making any further charges of discrimination and/or retaliation."

The case is scheduled for a jury trial in February 2013.

Single-Sex Education Will Not "Save" Black and Latino Boys, Professor Argues

In an opinion piece on the Education Week blog, NYU Professor Pedro Noguera argues that coeducation single-sex education is not the solution to problem that young men of color experience lower graduation rates and other disparities in educational outcomes. Noguera points out that there is no scientific research supporting claims that separating young men into separate schools or classrooms is the best way to meet their needs. To be sure, there are single-sex schools that boast higher-than-average graduation rates for African-American and Latino boys, but Noguera suggests that what is most likely making them successful are characteristics other than their single sex design -- characteristics like strong teachers-student relationships, personalized learning environments, and a peer culture that values academics and character. In support of this suggestion, Noguera points out that co-ed schools like Thurgood Marshall Academy in Harlem have achieved success by developing these characteristics. School districts that adopt single-sex education as a single magic bullet to the problems facing young men of color are poised not only to fail the students they are trying to help, but to project harmful gender stereotypes onto boys and girls alike. Noguera urges schools to focus on solutions that provide "positive learning environments that meet the needs of the children they serve."

High School Athletes Win Title IX Trial

A group of female athletes in Chula Vista, California, won their class action lawsuit against Sweetwater Union School District, having convinced a federal judge at trial that the school violated Title IX by providing inferior facilities and resources to girls' athletics at Castle Park High School. The judge found that a higher percentage of male athletes than female athletes had access to superior facilities, including dedicated locker rooms and other amenities. For example, the girls' softball field was poorly maintained and lacked fences and covered dugouts, compared to the boys field which was well-maintained, fenced, and had covered dugouts. The judge also found that female athletes were more likely to have fewer coaches, less qualified coaches, and coaches who had to devote more of their time to other school duties. Compared to boys' sports, girls' sports rarely received the support of the school band, and girls sports never received the support of cheerleaders. Boys' teams were permitted to fundraise, while some girls' teams were not. Finally, the judge found that the school district's stated reasons for firing the softball coach were "not credible and pretextual" of retaliation against the softball program for a parent's complaint about gender equity issues.

The plaintiffs had earlier prevailed in the aspect of their case that addressed discrimination in the number of athletic opportunities available to girls, as we blogged about here. The parties have 45 days to propose a compliance plan.

It is common for the Department of Education's Office for Civil Rights to address disparities in athletic facilities, equipment, and other amenities in high schools as well as colleges. It is less common for plaintiffs to seek judicial enforcement against this kind of discrimination. In fact, the Title IX Blog believes that this is the first time a case about high school facilities has gone to trial in a court. Kudos to the Legal Aid Society-Employment Law Center, the California Women's Law Center, and Manatt, Phelps & Phillips, LLP, who represented the plaintiffs in this precedent-setting case.

Dallas School District Takes Only Boys on Field Trip to the Movies

As reported here, the Dallas Independent School District is getting flack for its decision to take 5000 students, only boys, to the movies to see the film "Red Tails." Due to the high cost of such an outing -- $57,000 to rent buses and purchase tickets -- it wasn't feasible to include girls as well. So the school district's solution was to leave the girls behind, assuming, most likely, that girls would not be interested in a movie about the Tuskegee Airmen who fought in World War II.

If you're wondering, yes, this violates Title IX. As one expert put it:

"This sort of blatant gender discrimination is actually quite shocking in 2012."

Indeed. I hope the stakeholders in Dallas ISD are holding school district officials accountable for their poor judgment.

What's happening at Yale?

The news over alleged and potential sexual assault and the sexual climate/culture at Yale does not seem to be dying down. We get notice of another article/editorial/blurb pretty much daily. We haven't done a great job covering the story, but here is something of an update.
The most recent high-profile issue has been the controversy over what Yale quarterback Patrick Witt did or did not do and when he did or did not do it. I am not going to re-hash the whole thing because it seems that no one really has the answers--in part because people/entities have chosen NOT to go looking for them and in part because some of the so-called answers are of questionable origins. The basics: Witt was accused of sexual assault by a female student. She opted for the informal complaint process in which there is no investigation and no formal disciplinary action apparently. The alleged benefit, according to Dean Mary Miller, "is a simpler route to resolution"--as reported in the Yale Daily News.
It also allows the complainant to remain anonymous. And that, I am guessing, was part of the appeal of this process for this female undergraduate. I imagine it would be very difficult to be the woman who accused the quarterback, who is also a potential Rhodes Scholar, of sexual assault. And the process has worked in that she has remained anonymous. But the article above notes that the majority of complaints filed are done so using the informal process.
Last week Yale released, in a greater effort at transparency, the first ever report on the number of sexual misconduct complaints on campus (it included those filed between July and December of last year). There were 52 complaints--42 of them were addressed using the informal process.
I think further inquiry into the campus climate needs to occur. Why is this the preferred process? Why is it seen as easier? Granted, being known as a potential victim and complainant is not enjoyable--but are the students at Yale more afraid of being outed than is usual?
Also at issue was the myriad of ways in which complaints were filed. Part of the concern when the initial complaint was filed with OCR in March 2011 by the group of current and former students was the lack of information students had about how and where to address alleged sexual misconduct. Information has been flowing and students are more aware of their options. But are there too many options? Very few complaints were filed with the campus police--which seems to be one of the most obvious places to go. Is this a comment on the Yale campus police? Or on the campus itself?
Most of the complaints were brought to Title IX coordinators. Yay that people know who the Title IX coordinators ARE on campus. But all these complaints are of an informal nature. This article outlines the benefits and drawbacks of an informal complaint system. I think it would be interesting to see how this theory specifically applies to Yale taking into consideration the comments on the campus climate.
And speaking of campus climate...
Another of the controversies at the New Haven campus has been the presence of Sex Week. It was cited as one of the events that contributed to a harmful sexual climate on campus. But President Levin has allowed the week-long event to take place this week because the organizers (who were not named in this brief article) noted an educational purpose for each activity/lecture. Included in the line-up are lawyer Ann Olivarius who was instrumental in sex discrimination and sexual harassment law in the 1970s. Also on the bill is Maggie Mayhem, who works in the porn industry as an actress.
This editorial by a student explains that this year's Sex Week has quite a different tone than last year's. It also provides some anecdotal evidence of the sexual culture at Yale, including his own experience as part of the freshman class a few years ago which was told by their college dean to get to know one another--biblically. He speaks rather thoughtfully about Yale culture and culture at large. It's worth a read and definitely provides more information than other news stories I have tried to find on this subject.
We are sure there is plenty more to come from Yale. The Witt situation still does not seemed resolved (apparently one of the drawbacks of the informal process!), OCR has not completed its investigation or issued findings, and Yale continues to search for ways to successfully meet the needs of its students on these issues.

Sexual Harassment Roundup

Federal courts recently issued decisions in a couple of Title IX sexual harassment decisions.

The Ninth Circuit Court of Appeals recently upheld a lower court's decision to dismiss claims filed by a former student that the University of the Pacific failed to protect her from sexual assault by three members of the men's basketball team because they were deliberately indifferent to an earlier rape involving one of the assailants in her case. The court of appeals rejected that a general description of the attackers in the earlier rape and an officer's "suspicion" as to his identity constituted "actual notice" that a student involved in the plaintiff's rape was a threat to fellow students, as required for Title IX liability to attach. The court also rejected the plaintiff's argument that the university's Judicial Hearing Board's decision to expel one rather than all three of the assailants constituted deliberate indifference. The decision to suspend two of the assailants instead, and subject them to sexual assault awareness education and a probationary status, was not an unreasonable response to known incident of sexual assault. Doe v. University of the Pacific, 2012 WL 269901 (9th Cir. Jan. 31, 2012).

A federal district court in Delaware dismissed a Title IX lawsuit against Caesar Rodney High School, in which the plaintiff, a student, alleged that school officials were indifferent to her report that she was being physically abused by her boyfriend who was also a student. The court concluded that the school responded reasonably to the student's and her mother's reports about the violence, including having the assailant arrested and suspending him for criminal violence that occurred on school grounds, allowing the plaintiff to leave early from her classes and changing her locker assignment to limit her exposure to him in the hallway, and calling the police to report harassing text messages he sent to her outside of school. The court rejected the plaintiff's argument that school did not protect her from harassment by the assailant's friends, because she did not allege that she had reported to this to appropriate school officials or to any school personnel with sufficient time for response. The court also discounted alleged statements by school officials that plaintiff argued indicated their indifference (such as the plaintiff being told she is a "strong girl" who could overcome what was happening to her), reasoning that the statements were "rebutted by the actions taken" to address incidents of harassment. P.K. ex rel. Hassinger v. Caesar Rodney High School, 2012 WL 253439 (D. Del. Jan. 27, 2012)