Federal Court Enjoins Nonvoluntary Single-Sex Classes in West Virginia

A federal district court in West Virginia recently ordered an injunction against single-sex classes at Van Devender Middle School in Parkersburg, West Virginia (for an earlier post about the lawsuit, filed by the ACLU on behalf of a parent, see here).  The court determined that the program at Van Deventer violated the requirement in Title IX's regulations that single-sex programs be "completely voluntary."  This requirement is not satisfied, the court said, when parents can opt out of a program that presumes to otherwise place their child in segregated classes.  Rather, schools must allow parents must affirmatively opt in to such programs to satisfy this provision of the regulations. The court explained:

[B]ecause single-sex classes are, by their very nature, a gender classification, it makes perfect sense to require the parent or guardian's clear and affirmative assent. While a failure to opt out may be a legal substitute for agreement in some other areas of the law, such as membership in class actions, presuming that parents or guardians have enrolled their child in a single-sex class completely voluntarily because they failed to opt out would undermine the purpose of Title IX to prevent discrimination based on gender. 

The court also noted that the fact that parents were not notified of the opt-out until a few days before the beginning of the school year also suggests that parents did not have a real opportunity to volunteer for single-sex classes.

For now the court did not reach the question, raised in the ACLU's complaint, of whether even a voluntary program of single-sex education such Van Devender's would be unlawful under the Equal Protection Clause.  If litigation continues, however, the court would likely address that issue. 

Decision: Doe v. Wood County Bd. of Educ., 2012 WL 3731518 (S.D. W. Va. Aug. 29, 2012).

Cheer Coach's Lawsuit Survives Motion to Dismiss

We blogged last year about Debbie Greenwell's lawsuit against the University of Alabama.  Greenwell had been the university's highly successful cheerleading coach until she was terminated from her position for reasons that she alleges are retaliatory for efforts to advocate for equal treatment for her student athletes -- a violation of Title IX.  Among other claims, she also alleges that she was paid less than male coaches with comparable credentials and job duties, in violation of the federal Equal Pay Act.  The federal district court recently denied the University of Alabama's motion to dismiss the retaliation and equal pay claims after determining that Greenwell's complaint stated plausible claims for violations of the respective laws.  Plaintiffs do not face a high evidentiary burden to survive a motion to dismiss, so the court did not need to analyze the facts of Greenwell's allegations in much detail.  However, if the university next files a motion for summary judgment, the court will have to determine whether there is evidence in the record to support Greenwell's case, namely, whether her salary was demonstrably lower than that of an appropriate male comparitor (for the equal pay claim) and whether there some evidence of a causal nexus between her advocacy for students and the university's decision to terminate her from the head coach position.  As I noted in the earlier blog post about this case, the fact that several years passed in between will make this harder to prove.

Decision: Greenwell v. Trustees of the University of Alabama, 2012 WL 3637768 (N.D. Ala. Aug. 22, 2012). 

Grand Jury Won't Press Charges Against Xavier Student Expelled for Sexual Assault

The University of Montana, which we blogged about earlier today, was not the only university in the news this week in a story involving athletes and sexual assault.  A grand jury in Ohio decided not to file charges against Dezmin Wells, a former Xavier student and basketball player who had been expelled for sexual assault.  This decision raised questions about whether Xavier should reinstate the player, which the university has declined to do. In a press release, the university defended the disciplinary procedure that it used to determine Wells's expulsion as compliant with Title IX requirements on how universities' should respond to sexual assault.  The "preponderance of evidence" standard that universities must use in student disciplinary cases is actually stricter than the "probable cause" standard a grand jury uses to decide whether charges should be pressed, so University's decision is in some sense inconsistent with the grand jury's.  On the other hand, the University pointed out that the rules of evidence also differ -- that due to evidentiary rules designed to protect defendants in criminal cases, the grand jury might not have been able to hear all of the evidence than the university conduct board did.  Of course,  both the conduct board and the grand jury's proceedings are confidential, so we're not likely to find out exactly what that evidence could have been.

University of Montana Imposes Online Training to Prevent Sexual Assault

As readers well know, the Department of Justice is currently investigating the University of Montana on charges that it failed to respond appropriately and prevent numerous incidents sexual assault in recent years, including the possibility that the University covered up or downplayed claims by women that they were raped or otherwise assaulted by members of the football team.  Not surprisingly, the University is trying to change the campus climate of assault, as well as its reputation for indifference.  Inside Higher Ed reported today on one such effort: new plans by the University to require students to participate in an online training in sexual assault awareness and prevention, as a condition for course registration in the spring.  The training, which is 20 minute tutorial, which includes videos and a comprehension quiz, was developed by a committee that included faculty.  

This first-of-its-kind intervention reportedly has some concerned about the fairness of requiring all students to participate in training to curtail a problem caused by only a few.  Of course, the university has no way to identify in advance who might be involved in a sexual assault, either as a victim, a perpetrator, an accomplice, or a bystander with the ability to protect someone else.  Based on the high risk of sexual assault in college generally, and the rash of assaults at Montana in particular, it seems reasonable to address the climate of assault with an intervention aimed at the community at large.  

The reporter asked me about the relationship between this new requirement aimed at preventing sexual assault, and the Title IX investigation that is currently underway.   Certainly the steps Montana takes today have no bearing on the question of whether school officials violated the law in the past by ignoring or suppressing reports of campus rape.  But to the extent that the Department of Justice would require Montana to make changes aimed at preventing future assaults, the steps it has already taken to this end will likely count in its favor.   More significantly, however, from a legal standpoint, is that the University is vulnerable to liability for future assaults if it does not take steps now to address the problem about which it is aware.  To avoid being "deliberately indifferent" -- one of the elements to Title IX liability for sexual harassment and assault -- it must take steps reasonably calculated to protect students from assault.  Even though this online tutorial is a new idea and as-yet-untested, it would surely seem to qualify under the 'reasonably calculated' standard.  For one thing, trainings are already an accepted method of harassment prevention in the workplace context.  For another, it was developed by professors with expertise in this area, who presumably consulted scientific research on the efficacy of online trainings to change community norms in other contexts.  Most importantly, it seems a vast improvement on the usual "sign here to acknowledge that you've read this policy" approach many institutions use as a way of bringing students' rights and responsibilities to their attention.  Certainly the training alone will not absolve Montana from liability in future cases where the university could have done more to protect a student from a particular risk of assault.  But this intervention seems to be persuasive evidence that the university is not indifferent to the general risk to students that comes from a campus climate that seems to tolerate assault. 

Complaint Filed Against Wisconsin School District

Parents in New Berlin, Wisconsin filed a complaint with the Office for Civil Rights last week alleging that inferior facilities for female athletes, as well as other inequities in athletics at Eisenhower High School, violate Title IX.  Primarily, the parents complain that the pool facility used by the girls' swim and dive team is deteriorating, while the boys' team swims at a better facility located at another school in the district.  The district recently funded an upgrade to the football facility of comparable cost to what it would take to renovate the pool, and provides a state-of-the-art facility to the boys wrestling team.

According to this article, the parents filed a similar complaint against the New Berlin school district last year, which resulted in an agreement by the district to conduct an audit of the swim facility and to replace certain equipment in order to ensure gender equity.  Parents say this second complaint was necessary because the school district has not honored the terms of that agreement. The complaint also alleges that the school district has been stonewalling the pool upgrade project by proposing more expensive renovations than necessary, banking on the fact that the community would balk at the high price tag. 

Other inequities alleged include inequitable locker room space and a booster club structure that gives an advantage to the "Friday night lights" sports of football and boys basketball. 


The Office for Civil Rights will now decided whether to investigate the complaint.

ACLU Challenges Single Sex Classes in West Virginia Schools

Yesterday, the ACLU filed a lawsuit against Wood County Board of Education in West Virginia, challenging its sex-segregated education at Van Devender Middle School.  The lead plaintiff is a parent whose children are adversely affected by the gender stereotyping at that school. According to the complaint, classrooms and teaching methods reflect gross generalizations of questionable validity, such as that boys learn best in cool, bright rooms where they can move around.  The girls' classrooms at Van Devender, in contrast, are warm and dimly lit, and students must remain seated and always inside during instructional periods, compared to the boys who sometimes have class outside.  For one of the plaintiff's daughters, who has attention deficit disorder, the stereotypes about girls' quiet learning styles are hard to endure. Another is visually impaired and has greater difficulty seeing in the dim lighting of the girls' classroom.

The ACLU's legal argument is that the segregated classes at Van Devender violate the Constitution's Equal Protection Clause, which requires sex-based classifications to be substantially related to an exceedingly persuasive government objective and not rooted in broad generalizations.  It also argues that the school violates Title IX and its implementing regulations.  The Department of Education's regulations require that single-sex programs must be voluntary and offer an equivalent co-ed alternative, which Wood County does not, and that they must either be intended to "improve educational achievement" through "diverse educational opportunities" or be motivated by "particular, identified educational needs."  The ACLU argues that the pseudoscience underlying Wood County Board of Education's pedagogical choices do not satisfy either test.  

The ACLU seeks an injunction against the continuation of single-sex classes at Van Devender.

Pregnancy tests in Louisiana charter school

We have heard stories of pregnant high schools girls being discouraged--sometimes subtly, sometimes not--from continuing to attend their schools when their pregnancies are revealed. Some administrators believe these girls are a bad influence or that pregnancy is somehow contagious or--more nefariously and illegally!--that they should be punished. Alternative schools, GED programs, or just a recommendation to go away now and maybe come back later have all been proposed.
Still it was somewhat surprising to hear about a public charter school in Louisiana that not only kicks pregnant students out of its school, but mandates pregnancy tests for any girl they feel might be pregnant. (Refusal to take the test results in being banned from attending classes.)
The ACLU got wind of the test-and-expel policy and sent a letter informing the Delhi Charter School that their actions were discriminatory and illegal.
The school is planning to change its policy but apparently didn't even know that what it was doing was illegal. A Louisiana Board of Education spokesperson said he didn't know how rules around pregnancy applied to charter schools. Isn't that the board of ed's job?
This is what has been most troubling about this story. It seems that the schools that engage in pressure tactics (attend another school, penalties for pregnancy-related absences, encourage the GED route) probably know they cannot legally mandate the girl to leave. And while these actions are just as problematic (often because girls do not know their rights), the fact that people running a school--or a state education board--remain ignorant not just of federal law, but of the ways their beliefs about gender manifest in discriminatory policies and actions is discouraging.
Thank goodness for the anonymous community member who contacted the ACLU in the first place. No one at this chapter of the ACLU--despite the consistent number of calls it receives regarding the rights of pregnant girls--had never heard of mandatory pregnancy tests.

Quinnipiac ruling upheld

The 2nd US Circuit Court of Appeals upheld the decision issued by federal Judge Stefan Underhill in 2010 which stated the Quinnipiac University could not count  competitive cheerleading as a sport for Title IX compliance purposes.
The decision is not surprising, though QU officials are, obviously, disappointed. They have committed themselves to the continued support of all their female student-athletes including those who play volleyball and those who participate in acrobatics and tumbling--the sport that competitive cheering became--despite its current non-sport status. QU has elected to go with acrobatic and tumbling and join the national association that governs this activity over participation in stunt--the other version of competitive cheer that is run by Varsity Sports, which oversees a host of different cheerleading activities.
Of note is that even though QU was ordered to keep its volleyball team, it did not retain its coach. Robin Sparks, who was part of the lawsuit against the school, was fired last spring.

Call for Papers: Title IX and Transgender Rights

An editor at the The Wisconsin Journal of Law, Gender & Society has asked us to post this call for proposals for its 2013 Symposium, "Transcending Gender Lines: Title IX and Transgender Rights" scheduled for February 2013:

The 1972 Education Amendment prohibiting sex-discrimination in federally funded education programs, Title IX, has reached its 40th anniversary this year. We are seeking original scholarship, from both scholars and practitioners, addressing the current state of Title IX application in relation to the rights of transgender individuals.

 Ideally, proposals would highlight:

• An analysis of the effectiveness of current Title IX implementation in prohibiting sex-discrimination of transgender individuals.
• Recommendations as to how Title IX implementation could be improved to address issues particular to the needs of transgender individuals.

Topics could include: judicial decisions opening the door for Title IX’s application to transgender individuals, the current scope of Title IX’s application to harassment of transgender individuals (including sexual harassment, bullying at schools, on athletic teams, and online, sexual abuse); the effectiveness of measures state and local governments have enacted to protect the transgender rights under Title IX. Interested parties should send an abstract to WJLGS.Symposium@gmail.com by October 15, 2012. Those selected for the Symposium will be notified by November 2012. The Journal’s Symposium issue will be published in Fall 2013.

Questions may be addressed to Symposium Editor Jill Parikh at jparikh@wisc.edu.

Oregon father proceeds with lawsuit

We noted last month that Randy Anderson, the father of a softball player at Oregon's Seaside High School, was planning on filing a lawsuit because no girls' team was slated to play at the new sports complex, which seems to have been designed around the needs/parameters of boys' sports, i.e. baseball.
Well it appears that Anderson's almost actions inspired a reconsideration of how the field was to be used. A recent announcement about the events the field would host included girls' varsity softball.
But Anderson still plans of pursuing action against the school for gender discrimination that violates Title IX. Though the article cited above refers to Anderson's intended action as lawsuit-based, it would make more sense if it was a complaint filed with OCR since the gender inequities Anderson wants remedied (coaching, facilities, transportation, equipment) seem to affect girls' athletics generally and not specifically the softball team on which Anderson's daughter plays (thus giving him standing in a lawsuit). But we shall see what course of action(s) are taken by both Anderson and the school district in the coming weeks and months.

OCR's Enforcement Highlights from the Last Two Years

The Department of Education's Office for Civil Rights released its biennial report on Title IX enforcement for the last two years.  True to the title, the report focuses on enforcement "highlights" -- and there were many: the 2010 Dear Colleague Letter about athletics, which rescinded the 2005 Clarification that allowed compliance to be measured by an interest survey; the April 2011 DCL on sexual violence; the 2010 DCL on peer harassment; and a number of investigations and resolutions into inequalities in athletics, harassment, and other areas. The report also touted the newly-expanded Civil Rights Data Collection, which now surveys all school districts for information relevant to Title IX compliance in various areas. These are all positive steps in the ongoing effort to ensure that the promise of Title IX is fully realized, it is is nice to have them summarized together in one place. 

One limitation of the report, however, is its purely retrospective and descriptive nature.  Nowhere does the agency evaluate its enforcement over the past two years or analyze how to improve enforcement going forward.   This seems like a missed opportunity in light of some major questions raised by the report.  For example, how does OCR plan on defending and enforcing the 2011 DCL, which has been criticized by civil libertarians for endorsing the preponderance standard in campus grievance proceedings?  What does OCR plan to do with the damning data revealed by the CRDC, such as that 35% of responding school districts have proportionality gaps >10 percentage points?   And the biggest question of all, to me, which actually (sadly) relates to nothing in the report:  What does the agency plans to do rein in the runaway train of single-sex education, and ensure that the single-sex programs that exist are actually in compliance with the Title IX regulations?   OCR must surely be pondering these questions as well; it would have been nice to have a little transparent self-analysis about them to round out the description of its enforcement achievements for the last two years.

Student Note Addresses Title IX, Transgender Discrimination, and Women's Colleges

Recent Harvard Law graduate Katherine Kraschel's Note in the Harvard Journal of Law and Gender argues that women's colleges need not worry that admitting transgender students would compromise their ability to remain single-sex.  She explains:

Title IX provides for affirmative action not only for women, but also for the non-advantaged gender, and transgender individuals are most certainly members of a disadvantaged gender. Title IX case law, such as Miles and the cases that follow, shows that despite the dichotomous conception of gender when it was enacted in the 1970s, Title IX can embrace the notion of discrimination not only against the non-advantaged gender, but against the non-advantaged genders. While this is not well-settled law, if women's colleges strive to “be at the forefront of [transgender equality], not sort of catching up to the rest of the world,” the logical step is to end reliance upon Title IX and embrace an inclusive conception of Title IX's anti-discriminatory charge.

For more, see Katherine Kraschel, Trans-Cending Space in Women's Only Spaces: Title IX Cannot Be the Basis for Exclusion, 35 Harv. J. L. & Gender 463, 483 (2012)