OCR's New Guidance: a "Title IX" for Students with Disabilities

Yesterday, the Department of Education's Office for Civil Rights announced new guidance for public elementary and secondary schools regarding their obligation to provide athletic opportunities for students with disabilities.  Public schools are subject to the 1973 Rehabilitation Act, Section 504 of which prohibits federally funded programs from discriminating against or excluding individuals on the basis of disability.  While the Department of Education's regulations implementing 504 call for equal opportunity for students with disabilities to participate in extracurricular activities and athletics, yesterday's guidance clarifies what schools must do under the law to include students with disabilities in athletic programs.

First, the guidance prohibits schools from limiting athletic opportunities due to generalizations and stereotypes about students with disabilities.  For example, it would be unlawful for a high school coach to exclude a player based on her learning disability, on the belief that all students with learning disabilities are incapable of handling both schoolwork and sports.  Instead, the coach must use the same criteria for eligibility that apply to other students.

Second, schools must make reasonable modifications to existing athletic programs, where doing so would enable the participation of a students with disabilities without altering the fundamental nature of the program or put students' safety at risk.  As an example of a reasonable modification, OCR describes a track competition where the schools agree that the race start will be signaled by a visual cue along with the starting gun, in order to accommodate a student whose hearing is impaired.

Finally, where schools cannot accommodate students' participation in existing athletic programs, they must create additional athletic opportunities for students with disabilities.  When individual schools do not have a sufficient number of students with disabilities to field a team, they should consider district-wide or regional teams, co-ed teams, and "allied" or "unified" teams that allow students with and without disabilities to participate together.

Advocates for students with disabilities have expressed their hope that this guidance will do for them what Title IX has done for women and girls: end the presumption that they are incapable and uninterested in participating in sports, and expand the opportunities available for them to do so. Like Title IX, I expect this new guidance will trigger concern that accommodating students with disabilities will detract from existing opportunities.  But the fears that Title IX would cut into boys' athletic opportunity have not panned out. So if the Title IX analogy is correct, we'll see continued expansion of sports for all students, regardless of sex and regardless of disability.

HS Athletic Director Suspended Over Scheduling Dispute

The Boston Globe today reported that a high school athletic director in Lexington, Massachusetts, will serve a one-week suspension for falsifying an email to other athletic directors in the Middlesex League, claiming that a parent was threatening to sue the League over inequities in the girls' basketball schedule.

The email worked, in that it helped motivate the League to change its schedule so that girls' teams would have the same number of prime time games as boys' teams -- we blogged about that change, back in December.  But the abruptness of the change, along with the apparent threat of litigation, triggered a backlash in the community, as we noted in this earlier post.  Kathryn Robb, the parent who had initiated discussions with the Lexington H.S. athletic director Naomi Martin, received negative publicity when community members upset with the schedule change came to believe that she had single-handedly forced the change by threatening to sue. And it was Martin's falsified email to the other athletic directors that set Robb up to take the fall.  Martin's email incorporated text from an email she had received from Robb, but which she had doctored to suggest that Robb had threatened litigation, which she did not.  Martin's email also misidentified Robb as a civil rights attorney and made it seem that her "threat" addressed the entire league, when in fact, her concern had been limited only to Lexington High School.

Now that the truth has come out, Martin has apologized to Robb, and the Lexington school district has suspended Martin for one week without pay.  Lexington's superintendent, while condemning Martin's conduct, characterized Martin as well-intentioned, in that she embellished Robb's concern in order to "strengthen her advocacy" for Title IX compliance.  Yet, this decision came at great personal cost to Robb, who became the scapegoat for an unpopular schedule change, and was ridiculed and alienated from the basketball community in which she had participated as a coach as well as a parent.   

In my opinion, Martin isn't the only one deserving of blame in this story.  Yes, she threw another woman under the bus, so to speak, in an ends-justify-the-means approach to Title IX advocacy.  But the Middlesex League itself is also at fault. After all, the League apparently needed a threat of litigation, however false, in order to do the right thing.  Scheduling girls in the inferior, "warm up act," time slot is a clear violation of Title IX, with any doubt of that erased by the ruling of the Seventh Circuit Court of Appeals last year, so the Middlesex League should have changed its scheduling practices already, like the other leagues in Massachusetts have done.  In addition to the League, the other --and perhaps even worse -- culprits in this story are the parents and community members who were so outraged by a decision that boys would now have to share the prime time spotlight with girls. Even if Robb had threatened litigation, she shouldn't have had to pay the social cost they imposed upon her for pursuing equal treatment. By retaliating against Robb, these folks have ensured that anyone in position to similar to Robb's and Martin's in the future will think twice about pushing for change. They, along with their counterparts in communities across the country, are the real reason it takes more than 40 years to achieve equality in athletics. 

USC Settles Title IX Complaint about Rowing Facilities

After a 14-year investigation, OCR has determined that the University of Southern California violated Title IX by providing inferior facilities to the women's rowing team, which produced a significant disparity in the overall treatment of men's and women's athletics.  The rowing team uses an old boathouse 20 miles from campus, which is described as a "garage-like structure" with open and exposed walls, no designated locker room, and a single bathroom available for athletes and spectators alike. Rowing is the largest women's sport at USC, a factor that influenced OCR's analysis of the university's compliance.  Men's golf apparently also lacked a designated locker room, but with only nine male golfers so affected, that fact did not balance out the inferior rowing facilities provided to the 62-member women's crew team.

In response to OCR's findings, USC entered into a settlement agreement requiring it renovate the boathouse by January 2014. The new boathouse will include a designated locker room, seating for spectators, a lounge area and office space, and additional restrooms to accommodate spectators of both sexes. 

(If you're wondering about why the investigation took so long...so am I. A Department of Education spokesperson reportedly told the Chronicle of Higher Education that it took 14 years to investigate the complaint, which was initially filed by California NOW, due to the "complexity of the case, which required significant data analysis."  Yet equal treatment complaints involving facilities are fairly typical, and they usually don't take this long. A more compelling explanation would serve OCR well. Because no one's going to file a complaint if they think it's likely to take 14 years to resolve.)

Sexual Harassment Roundup

Here is a roundup of some recent judicial decisions in Title IX sexual harassment cases:

A federal court in New York dismissed a Title IX claim against the Monroe-Woodbury Central School District.  While in tenth grade, the plaintiff, had been receiving home tutoring and treatment for anxiety and self-injurious behavior when she disclosed to a counselor the she had been sexually abused by male classmates on two separate occasions while she was in eight and ninth grades. At that point, school responded by enrolling her in an alternative education program.  When that did not work out, district officials decided to resume individual tutoring, but denied the parent's request to transfer her to a public school out of district, which they said they did not have the power to grant. The court determined that by taking these measures, the school district could not be said to have acted with the "deliberate indifference" required for liability to attach. This decision is concerning, however, not because the school district did not honor the parent's request, but because school officials apparently waited several months before informing parents that they could, if they wanted, file a written grievance that would trigger an investigation and potential corrective and disciplinary measures against the students accused of sexual assault.  In my mind, this aspect of the district's behavior should have constituted deliberate indifference. School officials should have initiated an investigation when the plaintiff first reported that she had been abused by two male students.  I see no point in requiring a formal, written grievance, let alone waiting several months before informing the student's parents of that requirement.  On this point, the court disagreed because the sexual assaults had not happened recently, but in prior years.  For reasons I don't understand, this somehow justified the school's delay in this regard.  I'm rooting for an appeal in this case.  K.F. ex rel. C.F. v. Monroe Woodbury Cent. Sch. Dist., 2013 WL 177911 (S.D.N.Y. Jan. 16, 2013).

A federal court in Missouri dismissed two separate Title IX claims against Saint Louis University filed by a former student.  One of the claims alleges that the university responded with deliberate indifference to her report that she was raped at an off-campus party in 2006.  The court rejected this claim, attributing the university's delay in commencing an investigation to the plaintiff's delay in reporting the incident and turning over the assailant's name, and pointing out the university's response, meanwhile in ensuring that the plaintiff received support and counseling.   In a separate claim, the plaintiff alleged that while a student-athlete on the field hockey team, she was the victim of sex discrimination in the supervision of the athletic training, and the absence of medical and academic support that would have kept her eligible and able to continue to participate on the team. However, the court dismissed this claim as well, citing the plaintiff's failure to compare the academic and medical support she received to that provided to male students. Roe v. Univ. of St. Louis, 2012 WL 6757558 (E.D. Mo. Dec. 31, 2012).

In Oklahoma, a federal court refused to dismiss a Title IX case against Mounds School District stemming from the sexual abuse of a student by a counselor who worked at the high school, but was employed a social services agency, not the district. The court agreed that the school district had actual notice that the counselor posed a threat of abuse to the student when the high school principal received information that the counselor was engaging in sexually suggestive communication with the student. "Actual notice," required for Title IX liability to attach, generally requires notice to a person with authority over the individual accused of harassment.  Here, even though the principal did not have direct authority to hire and fire the counselor, the court agreed that the requisite authority existed, given that the school could have still taken steps to exclude the counselor from the premises in protection of the student.  Having received sufficient notice, the school had an obligation to respond in a manner designed to protect the student from a situation that escalated into abuse, which the plaintiff satisfactorily alleged the school did not do.   Doe v. Defendant A, 2012 WL 6694070 (N.D. Okla. Dec. 21, 2012). 

Student Paper Raises Questions About UPenn's Title IX Compliance

A recent article in the student newspaper for the University of Pennsylvania takes the university to task for having the highest disproportionality of athletic opportunities among all of the Ivy League schools.  Women at Penn constitute 51% of the student body, yet they receive only 37% of athletic opportunities.  Some of this gap is due to the university's 51-man sprint football squad -- a sport for which no female counterpart exists.  Tradition dictates that the sport continue, argues the athletic director.  But as the article is careful to point out, even without football, Penn's gender gap would still be wider than that of several Ivy League peers.  Moreover, football is not a legally recognized excuse for noncompliance.

To be sure, Penn's disproportionality is not by itself evidence of a compliance problem.  The article describes how the university surveys female students about their interest in sports, suggesting that it likely complies, or is striving to comply, with prong three -- an alternative to proportionality that requires universities to demonstrate they are fully satisfying the interests and abilities of the underrepresented sex.  Hopefully Penn's prong three efforts include more than surveying, since OCR clarified in 2010 that interest survey results alone aren't conclusive of prong three compliance.  Part of the reason why this is so is captured in Penn's survey itself, which asks students what sports they are interested in playing, and whether they have the ability to play them at a Division I level. This obviously skews the survey results away from finding unmet interest and ability, since Division I-caliber athletes don't usually enroll of their own initiative at institutions where their sport of choice is not already offered.  For this reason, OCR requires universities to take a broader look at women's interests by including evidence of regional and conference popularity of certain sports, which could suggest that, if offered, women would come to play.  The article notes that Penn has a "robust" club women's rugby program, and recommends that Penn consider elevating it to varsity status.  Given the gender gap in opportunities as well as Penn's seemingly vulnerability under prong three, this is definitely a recommendation worth looking in to.  And if Penn were to turn down a request for elevation stemming from the rugby team itself, it would have a very hard time defending its compliance with Title IX.   

Pregnancy Discrimination Alleged at Borough of Manhattan Community College

The National Women's Law Center filed a complaint this week, urging the Department of Education's Office for Civil Rights to investigate its claim that the Borough of Manhattan Community College -- part of the CUNY system -- discriminated against a student, Stephanie Stewart, on the basis of her pregnancy.  Stewart, an honors student, says a professor told her she would not be able to make up any tests or assignments missed as a result of her pregnancy, including any she might miss during labor and delivery.  Deans and other college officials backed up the professor's decision and advised her to drop the course -- ironically, it was a course called Roles of Women -- since she expected to give birth during the semester, which she did.  By withdrawing from the class, however, Stewart became ineligible for the merit scholarship she had been awarded.

Title IX regulations clarify that the statute's prohibition on sex discrimination includes discrimination on the basis of pregnancy.  Schools must treat pregnancy and childbirth "as a justification for a leave of absence for so long a period of time as is deemed medically necessary by the student's physician, at the conclusion of which the student shall be reinstated to the status which she held when the leave began."  Though Stewart wasn't requesting a leave of absence, the opportunity to make up and exam or assignment could easily be viewed as a similar, or "lesser included," accommodation that should be governed by this same regulatory provision. The professor and the college should have granted the accommodation, asking only for Stewart to make up any missed work as soon as she is medically able.  

If OCR agrees, and NWLC's allegations prove true, BMCC might be required to reinstate Stewart's scholarship and develop better policies for dealing with pregnant students. 

Jukin' the Stats: Complaint Alleges UNC Underreported Campus Sexual Assaults

In a complaint filed this week with the Department of Education's Office for Civil Rights, a former associate dean at the University of North Carolina reportedly alleged that the university violated Title IX and other laws when the university counsel's office pressured her to under-report instances of sexual assault.

Melinda Manning, then the Association Dean of Students, was responsible for compiling statistics on sexual assault on campus and reporting them to the Department of Education in compliance with the Clery Act.  In 2011, Manning received pressure from the university counsel's office to reexamine the statistics she had compiled on 2010.  She was told they were "too high" and received repeated instructions to "look over [them] again" and "make sure those numbers were correct."  When Manning stood by her figures, the university counsel's office allegedly took it upon itself to shave three instances off of the final tally before submitting it to the Department of Education.    

Manning's complaint is joined by three students and one former student, who add their own allegations about the hostility they experienced as sexual assault victims seeking justice through the campus disciplinary process. Specific allegations include the administration’s "failure to train Honor Court members who facilitated sexual assault hearings, to treat both the accused and accusing student fairly and to keep survivors informed."

Hostility also describes the environment Manning endured after advocating for better handling of sexual assaults.  According to allegations in the complaint, Manning's supervisor, Dean of Students Jonathan Sauls, gave her a negative performance evaluation and threatened her with consequences if she again speak to OCR or the chancellor's office about the issue.  He also intimidated and isolated her in the job, eventually leading to her decision to resign. As evidence that this hostility extended beyond Sauls, the complaint also notes that Sauls was promoted to the Dean of Students position over Manning, after Manning was told by the chancellor that he would "never hire her because she had a young child at home and what that could mean."

OCR will now determine if the complaint warrants an investigation, a process that could ultimately lead to an order requiring the remedial action from the university.  

Financial Inequality, College Sport, and Title IX: Reflections on the NCAA Scholarly Colloquium

I'm just back from the NCAA Convention, where I attended the Scholarly Colloquium for the first time in my capacity as a member of the board charged with running the Convention's annual academic conference.  As it turns out, that first time will also be my last.  On the eve of the Colloquium, NCAA officials announced that it was discontinuing support for the Colloquium, as well as the Journal of Intercollegiate Sport, which is also put out by our board.  Some have speculated that this decision was not about financial considerations and scholarly "impact," but more about the NCAA's unwillingness to subsidize scholarly criticism of the college sport enterprise (see, e.g., here or here).  A not entirely unreasonable point of view, I guess, though it's certainly disappointing that the NCAA and its members will miss the opportunity going forward to engage in constructive, critical dialog within the framework of the Convention.  

This year's Colloquium is a case in point.  Several panels of scholars, not to mention a few university presidents, provided various perspectives on the Colloquium theme, Financial Inequality in College Sport. From these presentations, I came away with a much clearer picture of the economics of college sport, and what economic disparities within sport mean for student-athletes and other students.  For example, while it wasn't news to me that Division I schools outspend  Division II schools, or that within Division I, FBS institutions outspend their FCS counterparts by exponential sums, I was surprised to see the economic disparities even within conferences of similarly-situated schools.  In the Big Ten Conference, for example, Ohio State spends $132 million on athletics, or  2.7 times as much as the lowest-spending member of that same conference.  No wonder there's an arms race of spending.  Schools with an economic advantage can shore up that advantage by hiring an army of support staff (including, as we heard in one example, a "sleep consultant" to make sure the football team would be well-rested despite traveling across two time zones to the site of a bowl game) and other amenities.  Perhaps more importantly, they can afford to purchase football wins against schools from weaker conferences and the FCS subdivision, in order to ensure eligibility to the revenue-generating bowl games.  (Oklahoma State's 84-0 win over Savannah State was a much discussed example.) These kinds of investments, of course, drive up spending in the conference overall, who have little change of recouping their exorbitant investment unless they hang in there with the big spenders.

While this year's Colloquium panels did not include a specific focus on Title IX (though past year's Colloquiums have done so, see, e.g.), they certainly helped contextualize the economic situation in which Title IX decisions must take place.  The presentations underscored for me the relationship between the financial inequality among schools and the financial inequality within schools, since the arms race spending, driven by economic pressure to keep up with big spenders, results in more resources allocated to the sports with revenue potential, which are, primarily, two men's sports -- football and basketball.  When a school like Colorado State goes in the hole to build a new football stadium, this not only diverts money toward the football program, but creates economic pressure to keep its football team viable for as long as the debt on the stadium exists.  It sets a men's sport as a permanent priority, driving a wedge of perpetual inequality between one (men's) sport and the rest.  For these reasons, I agreed with a number of Colloquium presenters who called on the NCAA to press Congress for the authority to more tightly control athletics spending.  (Presently, antitrust laws would prohibit the NCAA for doing so, which is why Congress needs to get involved).  Financial and academic integrity were the primary reasons for this proposed reform, but gender equity goes on the list as well. 

Whether or not the NCAA agrees with the content of this year's Colloquium, one thing is clear: the conversation about college athletics reform must continue.  I'm grateful for the past six years in which the NCAA has supported the Scholarly Colloquium.  Now it's time to look for new opportunities to promote academic discourse on college sports. 

Title IX Law Review Scholarship Roundup

Several law review articles related to Title IX have been published in recent weeks. Here is a summary.

In the recent issue of the Williamette Sports Law Journal, author Zachary Anderson examines the University of Nebraska-Omaha's recent decision to drop its football and wrestling program. His case study examines the university's financial motivations as well as its compliance problems, and concludes that the university's decision was in the best interest of the institution and its student-athletes overall. 
Zachary W. Anderson, Title IX Compliance: In the Name of Financial Stability or Gender Equality?, 10 Willamette Sports L.J. 33 (2012).

A student note in the Catholic University Law Review argues that Title IX plaintiffs alleging violations stemming from athletics ought to satisfy the same requirement of "actual notice" that applies to Title IX sexual harassment claims. The author acknowledges that several courts have rejected this idea because harassment, unlike athletics discrimination, involves conduct about which the university might not actually be aware. He argues nevertheless that universities may be unaware of discrimination in athletic departments and that a notice requirement should be imposed. Personally, I find this unconvincing, as I have argued elsewhere on this blog that it simply "make[s no] sense to require plaintiffs to put institutions on notice of the discriminatory nature of their own decisions."
Zachary Swartz, If It's Broken, Let Them Fix It: Why the Gebser Pre-Litigation Notice Requirement Should Apply to Title IX Athletics Lawsuits, 61 Cath. U. L. Rev. 1207 (2012).

Finally, another student note, this one in the Duke Law Journal, criticizes certain aspects of the 2011 Dear Colleague Letter from the Office for Civil Rights, which clarified universities' obligations to respond to sexual violence on campus. On the one hand, the author concludes that the DCL's requirement universities have a preponderance of evidence against the accused before taking disciplinary action is consistent with procedural due process requirements in the Constitution.  But, he argues, other aspects of the DCL, such as its recommendation against allowing the accused to cross-examine the victim, conflict with the constitutional interpretations of some lower courts.   
Matthew R. Triplett, Sexual Assault on College Campuses: Seeking the Appropriate Balance Between Due Process and Victim Protection, 62 Duke L.J. 487 (2012).

Court Says Duke's Response to Student Rape Was Not Deliberate Indifference

Last month a federal district court in North Carolina dismissed a Title IX claim against Duke University, which stemmed from the 2007 rape of a female student by a non-student that occurred at an off-campus party hosted by other students.  The plaintiff did not allege that the university should have protected her from the rape itself, but she did allege a number of examples of university conduct in the wake of the incident that contributed to an actionable hostile environment thereafter.  Some of those allegations relate to the academic accommodations the plaintiff did or did not receive, such as being denied in her request to complete the semester from home (she was granted a personal leave of absence instead) and that the university responded to her stated request to transfer to another university by informing her that she forfeited eligibility to re-apply to Duke at a later time (an apparently routine response, and one that was consistent with plaintiff's intentions anyway).  In what I would consider a noncontroversial aspect of the decision, the court rejected that these examples of Duke's conduct did not amount to deliberate indifference and serve as grounds for institutional liability. 

I do take issue, however, with the court's evaluation of Duke's conduct related to the investigation of the rape itself.  The plaintiff alleged that Duke turned the investigation over to the police, and that its decision not to re-open its own investigation was motivated by the fact that a large contributor to the university happened to be the person who owned the house where the party and rape took place.  The court reasoned that the absence of an investigation was not deliberate indifference because that itself did not cause further harm to the plaintiff, in the sense that she was not raped, assaulted, or harassed a second time because the university dropped the ball.  This seems like an overly-harsh application of the standard for institutional liability under Title IX, and one that conflicts with other decisions in similar cases.  For example, we blogged last year about a case against Arizona State, in which the plaintiff survived a motion to dismiss based on allegations both that the university failed to protect her from being raped at a fraternity house with a known reputation for sexual assault, AND, as in the Duke case, that university officials failed to properly investigate the rape once it had been reported.  To the second claim, it did not matter that the plaintiff in that case had not experienced a second instance of rape or harassment by the same fraternity due to the university's indifferent response.

It is also worth pointing out that Duke's response clearly defies the guidance provided by the Office for Civil Rights in its April 2011 Dear Colleague Letter, which states that it's not appropriate for universities to simply defer to police investigations.  It also states that "a single instance of rape is sufficiently severe to create a hostile environment" and defines a university's prospective obligation to take immediate action to "eliminate the [hostile environment], prevent its recurrence, and address its effects."  Granted, the standard for government agency enforcement is different from the standard courts use to determine institutional liability for damages, so Duke's failure to comply with the guidance letter does not have direct bearing on the court's decision.  But it is at least worth noting, however, that if Duke or any other university behaved today like Duke did in this case, OCR at least would have the grounds to bring an enforcement action.   

Decision: Rouse v. Duke University, 2012 WL 6681786 (M.D.N.C., Dec 21, 2012).

Don't you dare complain!

We mumble and grumble--sometimes more loudly than at other times--when schools get praised by the community and media outlets for taking some action that appears to be making a situation better for female student-athletes (new softball field, addition of teams, renovated locker rooms) when what they're really doing is simply following the law and ending (some) discriminatory practices.
But when the media perpetuates backlash, well then you get a talking-to.
Mark Goodman, writer for HomeNewsHere.com out of Woburn, Massachusetts is not the only--just the latest--purveyor of Title IX backlash. Covering the Middlesex League, Goodman questions whether the hockey teams in the league will have to alter their practice of scheduling doubleheaders in which the girls' teams play first, followed by the boys' contest, the majority of the time. (Despite popular sentiment that everyone is fine with this arrangement, they do need to alter their scheduling practices.)
The question arose because the basketball teams in the league recently changed their game scheduling practices after a parent complained about the discrimination inherent in always putting the girls as the warm-up act in doubleheaders. Some people are not happy about this change citing damage to the school community. My guess is that the people who are happy are not so vocal in their support. Perhaps because people attack those advocating for equal rights, including reporters like Mark Goodman, who wrote: "all it takes is for one person to get bent out of shape and threaten legal action."
A parent is not getting "bent out of shape" when he or she asks for the school to provide equitable treatment to its female students. What that parent is asking is that the school comply with the law. A parent doesn't even need to "threaten legal action" because anyone can file a complaint with OCR. Anyone. An OCR complaint--even if it's just based on scheduling--can trigger a full investigation into all aspects of athletics in a district. All aspects: facilities, opportunities, equipment, coaching. And that will have administrators bent into all sorts of shapes.