Student Note Addresses Transgender Inclusion in College Fraternities

In the current issue of the Hofstra Law Review, student-author Stevie Tran addresses perceived legal impediments to the participation of transgender members in college and university fraternities. Tran's note addresses two contexts that may raise questions about a fraternity's relationship with transgender members: a decision to admit as a member someone who has transitioned from female to male, and a decision to retain as a member someone who was identifying and expressing as male when they were admitted, but who later transitions from male to female.

In particular, Tran addresses the myth (apparently widely believed among fraternities as it is among women's colleges) that if a fraternity admits or retains a transgender person, Title IX will no longer allow it to exclude members of the opposite sex. Yet, as Tran explains, Title IX's only reference to fraternities and sororities is to exempt them from the general mandate that school activities be nondiscriminatory with respect to sex.  As Tran points out, there is no statutory requirement for fraternities and sororities to be single sex, and no penalty on them, or their institution, if they were to admit members of the opposite sex or transgender members. Nor does a fraternity's relationship with transgender members waive its First Amendment right to associate with members of the same sex.  Interestingly, Tran provides several examples of fraternities and sororities that have already implemented policies of transgender inclusion.  Sigma Phi Beta, for example, expressly commits to operating as a "fraternity for men," and defining eligibility to include "any individual who self-identifies as male, regardless of his sex assigned at birth or his expression or perceived expression of his gender."  SPB's policy goes on to assure that members are not disqualified because they transition after being admitted to the fraternity.

Ultimately, Tran concludes that transgender inclusion is consistent with the core purpose of and values that fraternities stand for.  Having dispelled the myth that Title IX operates as legal impediment to doing so, she argues that fraternities should serve as a model of inclusivity. 

Citation: Stevie V. Tran, Embracing Our Values: Title IX, The "Single-Sex Exemption," and Fraternities' Inclusion of Transgender Members, 41 Hofstra L. Rev. 503 (2012).

Sexual Harassment Roundup

A number of courts have recently issued decisions applying Title IX in the context of sexual harassment.  Here is a summary:

• A federal judge in California dismissed claims against a school district stemming from the harassment of two sisters who are Palestinian-American and practicing Muslims. Harassment included name-calling, which the court said was not actionable, and attempts by male students to peek under their hijab. According to the court, the complaint failed to allege in sufficient detail attempts by the students or their parents to notify authorities in the school district. Al-Rifai v. Willows Unified School Dist., 2013 WL 2102838 (E.D. Cal. May 14, 2013).

• In Oklahoma, a judge denied a school district's motion to dismiss the claim of a former student that the school district had responded with deliberate indifference to knowledge that she was being sexually abused by the band director.  The complaint sufficiently alleged that a school official with authority over the teacher had received enough information, including a report from another student about inappropriate physical contact between the plaintiff and the teacher. Thompson v. Independent School Dist. No. I-1 of Stephens County, 2013 WL 1915058 (W.D.Okla., May 08, 2013).

• A teacher alleged that he was fired for reporting an act of sexual abuse between students that occurred in the boys' locker room. Finding sufficient evidence from which a jury could conclude that Title IX-prohibited retaliation had occurred, the court denied the school's motion for summary judgment. First, there was sufficient evidence that the teacher reasonably believed that what he was reporting amounted to harassment in violation of Title IX, either because it was sexual in nature or because the victim could have been targeted for his gender nonconformity. Second, there was evidence to suggest that the school's stated reason for firing him -- that he had not adequately supervised the locker room during the assault -- was pretext for a retaliatory motive. At the time he was fired, the school official who fired him was not yet aware that the teacher had not been supervising the locker room during the incident.  There was also evidence to suggest that school officials feared negative publicity if it investigated the incident and punished the perpetrators. Corral v. UNO Charter School Network, Inc., 2013 WL 1855824 (N.D.Ill., May 01, 2013). 

• A teacher prevailed at trial in a retaliation case against a school, having convinced a jury that he was fired for reporting his supervisor's sexual relationship with a student. On a motion to determine damages, the court ordered that the teacher be reinstated, and that he receive back pay with interest. Lalowski v. Corinthian Schools, Inc., 2013 WL 1788353 (N.D.Ill., April 26, 2013).

• A student can proceed to trial against Alcorn State University, having produced sufficient evidence to survive summary judgment to support his claim that a professor gave him a failing grade after the student rebuffed his sexual advance. Chestang v. Alcorn State University, 2013 WL 1624401 (S.D.Miss., April 15, 2013)

Yale fined for Clery Act violations

The Department of Education has fined Yale University a total of $165,000 for various violations of the Clery Act. The fines are the total sum from multiple violations in the early 2000s when the university did not report four separate sexual assaults and did not include the Yale-New Haven Hospital as part of the campus thus omitting from their self-reported crime statistics any events that took place there.
The news of the fines comes at a time when college students across the country are accusing their respective administrators of similar violations. (See our previous posts about Occidental, Swarthmore, Amherst, and Dartmouth.)
The fines are the maximum allotted under the law, but they are not the equivalent of some of the large jury awards we have seen in the past decade from Title IX cases. And so it remains to be seen whether this will deter other institutions from similar misreporting.  
Yale has apparently asked for a reconsideration of the fines. Not because they cannot pay them, I suspect, but rather because there is a certain admission of guilt in doing so. When the university entered into a voluntary resolution agreement last year with OCR over Title IX complaints related to the hostile sexual climate at Yale and the policies and procedures in place to address incidents of sexual violence and harassment, it meant there was no finding of wrongdoing. I assume that Yale wants to keep its official record clean.

OCR finds fault with Forest Hills

We recently wrote about a lawsuit filed by a student who attended school in the Forest Hills School District (in Michigan).
The sexual assault at the center of this lawsuit also prompted a complaint to OCR which has investigated Forest Hills and found that the district did not properly investigate the claims of two female students who alleged sexual assault at the hands of a single assailant. Also, procedures to address allegations of sexual assault and harassment are inadequate, the agency determined.
The superintendent is taking issue with OCR's report. He has stated that investigators never interviewed him or the Title IX coordinator.

Yale assesses campus climate

As part of a process of regular follow-up to complaints of a negative sexual climate and confusing sexual assault policies and procedures two years ago, Yale University has issued a campus climate report that shows some of the steps the university has taken since 2011 have been effective.
Most effective has been the streamlining of policies and procedures that address incidents (and their reporting) of sexual assault and harassment. Students who were surveyed reported that they felt confident they could access the system for reporting sexual assault and harassment. Many could name an office on campus that deals with these issues. In short, awareness is up. This is good--
--because what remains unclear is how much the climate has actually changed. So while mechanisms and personnel are in place and have been well-advertised, the need to actually use them may not have decreased. Climate is more difficult to measure, but something Yale--and every school--needs to pursue. What are the proactive measures Yale is taking to decrease incidents of sexual assault and harassment? Remembers, the resources and mechanisms Yale has put in place and/or streamlined should have already been there. That's the law. And it was a reaction to an OCR complaint filed by students which ended in a voluntary resolution agreement.
One of the ongoing issues is the lack of female faculty in some departments. Also, the unique needs of graduate students should be addressed. Grad students work closely with faculty members and rely on them for progressing in their degree program and for help in getting a job afterwards. In other words, there is large power imbalance and plenty of cases to suggest that grad students who complain about inappropriate relationships with or behavior from faculty members experience significant backlash.
Yale will continue to assess campus climate. I hope they will report on specific measures to curb sexual assault and harassment and how they are measuring climate.

Triathlon Poised to Be Newest NCAA Emerging Sport

The NCAA website reports that its Committee for Women's Athletics has proposed to add triathlon to the list of Emerging Sports for Women.  The Emerging Sports list promotes the development of new collegiate athletic opportunities for women by allowing them to count towards NCAA requirements even in their provisional status.  If forty institutions add the emerging sport in a ten year period, it becomes an official NCAA championship sport. Ice hockey and rowing are examples of women's sports that have "graduated" from the Emerging Sports list.  Sand volleyball is the most recent sport added to the list, in 2009.

The CWA based its triathlon proposal on letters from a dozen institutions that have expressed plans to add or at least strongly consider adding triathlon as a sport in the near future.  These twelve schools are: Air Force, Arizona, Denver, Drake, Monmouth, UNC-Asheville, Northern Iowa, and Stanford in Division I; Adams State and Colorado-Colorado Springs in Division II; and Maine-Farmington and Marymount in Division III.  Another good indication of the sport's popularity is that over 150 club programs already offer participation opportunities for female triathletes, and that USA Triathlon, the sport's governing body, already holds a collegiate competition. 

Supporters of varsity triathlon advocate that the sport is easy to add, by simply adding a college wave to existing triathlon events. That said, it will be important for athletic directors to keep in mind that in order to count for Title IX purposes, the sport would have to ensure a similar level of college-varsity level competition that other sports receive.  The most recent Quinnipiac decision, for example, refused to let the university count rugby, notwithstanding its inclusion in the Emerging Sports list, because the team competed mostly against clubs and did not have enough varsity competition.  Athletic departments should not get the idea that they can simply shuttle a group of athletes to a nearby USAT event and then count them for Title IX purposes as members of the school's triathlon team.  The sport will need a competitive season, dedicated coaching and resources, and all of the other indicia of varsity status that institutions bestow upon their other athletic teams. 

Sexual Assault Complaint Wave Continues: Dartmouth To Be Next

An article in yesterday's edition of the student newspaper at Dartmouth College suggests that Dartmouth may be the next to be targeted by a complaint to the Office for Civil Rights over its polices and practices for addressing campus sexual assault.  Student activists who filed recent complaints against Swarthmore and UNC are quoted as expecting Dartmouth students and alumni to follow suit in the near future. It is no surprise that Dartmouth students would have connected with the growing network of students promoting sexual assault awareness and compliance with Title IX and Clery, in light of their controversial protest over the college's sexual assault problem during a recent prospective students' weekend.

I too was interviewed for this article, and shared my observations on the apparent momentum of sexual assault-related compliance efforts, as evidenced by the recent spate of sexual assault complaints, along with the recent resolution of an earlier complaint against the University of Montana. I expressed my hope that we may be at or near the tipping point for individual, institution-focused compliance efforts to effectively deter all colleges and universities from continuing to engage in the kinds of practices that allow campus sexual assault to thrive. For example, Inside Higher Education published yesterday about Otterbein University's recent decision to voluntarily curtail its practice of asking victims and witnesses in sexual assault proceedings to sign a statement many perceived as a nondisclosure agreement, which is in conflict with the university's obligation to report accurate crime statistics and conceal sexual assault.  Said the reporter, "The situation illustrates the importance of having clear, well-publicized procedures for sexual assault investigations, experts said, but also is yet another example of how ... it’s students and not administrators who are initiating policy changes these days."

FGCU earns all-sports trophy

Women's athletics at Florida Gulf Coast University has experienced quite a few problems in recent years. Problems with discrimination and equity that resulted in multiple lawsuits and settlements that we followed extensively on this blog.
We are choosing to look at FGCU's recent winning of the Atlantic Sun Conferences women's all-sports trophy as indicative of (perhaps) a positive change in the athletic department climate. Good things come when you practice equity!

Beloit school district proceeding with single-sex classrooms

In March we noted that the ACLU was contesting the School District of Beloit's (WI) use of single-sex classrooms in several of its schools. But the school board and superintendent have decided to maintain these classrooms used at two of the district's middle schools and have expressed confidence in their reasoning and ability to do so. The board plans to show the ACLU that there is a compelling interest to keeping the classrooms, which are used for several subjects. The district will produce data about the success of the classrooms. The superintendent said parents are being given a choice, however, about whether their children will participate in these single-sex classrooms.

Resolution Agreement Binds Montana to Better Address Sexual Assault

The Department of Justice and the Department of Education's Office for Civil Rights recently concluded their joint investigation of the University of Montana, which had commenced last May in response to claims that the University failed to adequately address reported incidents of sexual assault on campus.  In the investigation findings, the government agencies noted that the University had already undertaken many efforts to change policies, practices, and culture around sexual assault -- including, for example, the mandatory online training we'd blogged about last summer.  But, they determined, these efforts did not constitute "sufficient effective action to fully eliminate a sexually hostile environment, prevent its recurrence, and address its effects."  One problem was the University's confusing maze of sexual harassment and sexual assault policies -- 8 of them! -- which did not clearly coordinate with or cross reference to each other, and which use inconsistent definitions and reporting procedures.  The policies failed to adequately cover the broad array of conduct that could constitute sexual harassment not rising to the level of sexual assault, nor did they adequately cover off-campus conduct.

Another problem was that the University did not distribute to students information on how to file a grievance, and it was hard to find relevant information on the university's website (some of which is filed under "human resources," implying that it does not pertain to students). The lack of clear requirements regarding grievances has created much confusion among students about whom it was necessary to report to in order to trigger a university investigation and disciplinary process. 

Additionally, the government found that the university's disciplinary process was inadequate for ensuring victims' rights under Title IX.  For one reason, it is lengthy -- providing perpetrators up to five opportunities to appeal before receiving disciplinary action.  This violates the law's requirement to resolve sexual assault claims promptly.  Also, the disciplinary process required the ongoing participation of the victim, when under Title IX, a university's obligation to investigate and respond to sexual assault is not contingent on the victim's involvement.  The government also found incidents in which the University failed to take interim measures to keep victims safe, such as changing the student's academic schedule or living situation.  The preponderance of evidence standard, which is supposed to govern disciplinary procedures involving sexual assault, is not consistently stated throughout the university's policy.  The disciplinary procedures also give more rights, such as the right to question witnesses and the right to appeal, to the accused, when Title IX clearly requires that the victim and accused have equal rights in the disciplinary process.

To resolve these shortcomings, the University has entered into a resolution agreement, which the government is calling a "blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault," that requires the University to correct the problems identified in its policies and procedures for addressing campus sexual assault and harassment, including by creating better, more easily accessed resources for students.  The university must also regularly assess the campus climate regarding sexual assault, and provide mandatory training to students to ensure that they recognize sexual assault and harassment when it occurs, and that they know how to report it.  The agreement also requires the University to better train its Title IX Coordinator as well as other campus personnel who deal with sexual assault. 

The University's campus police force has also entered a resolution agreement to address its shortcomings in response to reports of sexual assault. The Department of Justice's investigation of the Missoula Police Department and Missoula County Attorney's Office, for its similar alleged deficiencies remains ongoing.

The timing of this resolution corresponds to an uptick in complaints, by students, against universities for failing to adequately address campus sexual assault.  With increasing public awareness and attention to the issue, it was smart of the government to offer these comprehensive findings as a "blueprint" for others to follow, since the findings against Montana are by no means unique. 

What's happening with sexual assault complaints

At Occidental College in California, administrators are moving quickly to remedy the campus climate that inspired students to openly protest the way the college handles sexual assault cases. The president announced that a search was on for a Title IX coordinator ( a position that should already exist, by the way). The school will also be implementing recommendations from two experts the college hired in the wake of the complaints. Over 100 members of the faculty issued an open letter vowing to work to change the campus climate.

On the other side of the country, Dartmouth College continues to deal with the repercussions of the very visible protest a group of current students held during prospective students weekend. The college cancelled  classes for a day the week following the protest in order to address some of the issues raised. Programming, including speeches and open forums, was held ago for a day in order to hold forums and workshops about the issues protesters raised. But the effectiveness of this somewhat last-minute move has been questioned. Additionally, the initial protesters and others unrelated to the protest at all are receiving threats--some of which are based on sexual orientation and race--in various online forums. In short, the issue of respectful dialogue remains.

Directly south of Hanover in Amherst, students continue to press the administration at Amherst College to institute--and be transparent about--sexual assault policies. In late April, as part of Sexual Assault Awareness Month, students held an on-campus protest objecting to the leniency the college has historically engaged in when it dealt with perpetrators of sexual assault and their lack of input into new policies. Though the Title IX committee has two spots for student representatives, only one is currently filled. Students are also upset that a draft of the new policies has not been released.

CUNY Settles Pregnancy Discrimination Complaint

The pregnancy discrimination complaint against Manhattan Community College (part of the CUNY system) has reportedly settled.  The complaint, as we blogged about in January, was filed with the Department of Education by the National Women's Law Center on behalf of student Stephanie Stewart. It alleged that the college violated Title IX when it refused to allow Stewart any accommodation to make up for classes or assignments missed due to her pregnancy, and then penalized her, by revoking her scholarship, when she withdrew from the class. While the failure to allow make-ups may or may not be discriminatory (depending on whether students are allowed makeup for other medical reasons), the revocation of her scholarship as a consequence of withdrawal appears to me to violate the Title IX regulation that requires schools to permit students to take leaves of absence for medically-necessary reasons related to pregnancy and childbirth with no change of status when they return. 

Under the terms of the settlement, Stewart's scholarship has been reinstated. She will also receive $3000 in damages. 

Carolina Coastal cuts track

Carolina Coastal University announced this week that it was discontinuing its men's track and cross-country program after next year.The Board of Trustees has determined budget cuts are necessary across the university and rumors had been stirring that the athletic department might have to cut a team.
The press release stated the following about why the choice was made to cut the the men's track program:
The Coastal Carolina Administration and the Board of Trustees authorized this step in order to reach the optimal combination of sport offerings that would provide quality opportunities to CCU student-athletes while remaining in compliance with Title IX and exercising fiscal responsibility.