Bullied Student Sues Mississippi School District

The Southern Poverty Law Center has sued the Moss Point School District in Mississippi on behalf of a junior high school student, Destin Holmes, who was bullied by students and staff because of her failure to conform to gender stereotypes. The complaint alleges that Holmes was insulted as many as 20 times a day, as students and even staff called her things like “it,” “freak” and “he-she.” One teacher denied her access to the girls' restroom, while another did not allow her to participate in a classroom activity that divided the students by gender.  Though teachers and other school officials witnessed or received reports about this abuse, they took no action to stop it.  Not even when SPCL issued a demand letter earlier this year, calling on the school district to ensure Holmes's safety and protect her civil rights.

Title IX lawsuits have forced other schools to address the climate of anti-LGBT bullying, implement stronger measures against such harassment, and even to pay damages to students who were victims of abuse (see, e.g.).  If Holmes's testimony in her case is even half as compelling as in this video from SPLC's website, a similar outcome in her case seems inevitable.  

Title IX Complaint Contests Carnegie Mellon's Response to Sexual Assault

The ACLU has filed a Title IX complaint with the Department of Education on behalf of a student at Carnegie Mellon University in Pittsburgh, who alleges that the university did not adequately respond after she reported that she had been sexually assaulted by her abusive ex-girlfriend.  Allegations in the complaint, available here, suggest that the campus police did not take seriously the threat to the victim's safety when they disclosed to the the accused student the details of the victim's accusation without notifying the victim or protecting her from retaliation.  The complaint also charges that the university failed to adequately discipline the accused student, whom they found responsible for violating the university's policy on sexual assault.  Rather, the university's only response was to implement a "no-contact order" that created a mutual obligation on both parties to avoid the other.  Despite the order, however, the offending student was allowed to take classes with the victim and continue to live across the hall, which enabled her to harass and intimidate the victim.  Ultimately, the victim had to move out of her apartment and switch her classes.  The ACLU argues that such a response violates Title IX because it failed to protect the victim from ongoing harassment, and placed the burden on her to avoid future harm.

While this case may be unique among recent campus sexual assault cases in that the victim and the offending student are both female, this fact does not put this case on any different legal footing.  Sexual violence targets the victim because of sex, regardless of whether the offender is of the same or different sex.  The university therefore has the same obligation as those in other cases to "eliminate the harassment, prevent its recurrence, and address its effects," and that is the standard OCR will use to evaluate Carnegie Mellon's compliance with Title IX.

Where CSU's athletic dollars are going

In the wake of news that Colorado State was inequitable distributing its athletic scholarship dollars, the following is an interesting editorial about where CSU athletics is putting its money. The university cut women's water polo this year. They did add soccer but there are still fewer female athletes than male athletes while the percentage of female undergraduates exceeds that of male undergraduates (52 to 48). There might not have been a net loss in athletic opportunities given that the size of the soccer squad is roughly equivalent to the water polo team. But Deborah Schulman's piece points out other disparities beyond participation numbers and scholarship dollars.
Though Title IX does not mandate a 50/50 split in funding between men's and women's sports, the fact that women's sports receive 30% of athletic department dollars deserves some investigation. For example, the fact that out of  the entire coaching budget, only 21% goes to coaches of women's teams. And only two of those (head) coaches are women. (The Tucker Center at University of Minnesota released a "report card" about the state of women in intercollegiate coaching. CSU is not, unfortunately, unique in its lack of female head coaches.)
It is not as if the university is running a large men's athletic program--well at least in terms of number of sports. There are only 4 men's scholarship sports. The issue is that so much of the money and other types of resources go into football; 45% of the budget is devoted to football. And the university is about to embark on a huge football stadium project.
Numbers like these illustrate the reality behind the claims of devotion to gender equity and suggest just how skewed things would be without a federal law compelling schools to examine and execute it.

Duke adding women's sports

The women's athletic program is having a good run. Women's basketball is currently ranked second in the nation (though that was a disappointing result against UConn the other day).
But the university has decided to put more money and support into women's athletics. The result: the addition of a softball team and scholarships in swimming and diving, fencing, rowing, and track and field. All of these sports will now be offering the maximum number of scholarships.
This move was championed by the Women's Sports Foundation which was strongly encouraging  Duke to come into Title IX compliance.
Inequities in scholarship dollars have been in the Title IX news of late. Colorado State was recently cited for its scholarship disparities. Part of the settlement at Quinnipiac College, approved this past summer, also included stipulations for an increase in scholarships.
Interestingly, the addition of softball in 2018 will bring Duke to 27 varsity sports. That puts them close to the top of the ACC in terms of sports offered. (Numbers vary when considering non-conference sports such as fencing and gymnastics.)
We have seen a lot of schools with such high numbers falter, unable to effectively sustain the quality of the experience across so many teams, especially when the emphasis is on a few revenue-generating sports. But Duke maintains that these revenue dollars are what has enabled them to increase spending on women's sports. Whether that is a sustainable model remains to be seen.

Wisconsin Parents Claim Swim Team Facility Arrangements Were Retaliation for Earlier Complaint

In New Berlin, Wisconsin, student-athletes and parents are complaining that the school district's decision to relocate the Eisenhower High School girls' swim team practices and home meets to another high school's pool was retaliation for earlier complaints about gender equity in athletic facilities.

As we noted on this blog, the complaints by the swimmers and their parents alleged that the deteriorating condition of Eisenhower's pool amounted to sex discrimination when compared to the high school's recently-upgraded football facility. To the swimmers' disappointment, the school district responded to that complaint by upgrading its softball facility instead. To their further dismay, the school district then decided that the conditions of Eisenhower's pool were so bad that the team should no longer use it. For the season that just ended, the girls' swim team had to practice and compete at New Berlin West High School's pool.  (The two high schools field a combined boys' team, which also uses the West facility). However, the Eisenhower girls' diving team continues to use the Eisenhower pool for its competitions.

Parents say that this inconvenient arrangement is pay-back for the earlier complaints. According to the them, the team would have preferred using the Eisenhower pool for practices and holding its competitions at West.  And as evidenced by the fact that the pool still serves the diving team, it's not as if its condition foreclosed all use.  Yet, district officials deny the charge of retaliation, arguing that scheduling both meets and practices at the same higher-quality facility was advantageous for the girls. 

It does not appear that the parents have undertaken or are threatening any legal action against the school.  If they did, their biggest challenge would be proving that the district had a retaliatory motive when it decided to relocate a team's regular practice to the West facility, which would have to undermine the school district's non-discriminatory explanation for the decision. 

Childbirth Discrimination Case Settled

In August we blogged about the Title IX complaint Brandi Kostl filed with the Department of Education after she failed two classes because her college, Logan College of Chiropractic, refused to allow her to make up the 11 days of schoolwork she missed because of an emergency Cesarean delivery.  This week, Inside Higher Ed reports a settlement in the case, under which the college will remove Kostl's failing grades from her record and allow her to re-take the classes at no cost.  She will also receive a tuition refund for the semester affected by Logan's discrimination.  

Logan has also agreed to update its policy to ensure that faculty do not penalize students who must miss classes due to pregnancy or childbirth. Faculty must either allow students to make up missed work, or to provide the opportunity to withdraw from the course with no financial penalty.

Pregnancy discrimination in colleges and universities is a common problem, according to lawyers and scholars interviewed by Insider Higher Ed.  Earlier this year, a complaint similar to Kostl's against the Borough of Manhattan Community College also resulted in a student-friendly settlement.  The National Women's Law Center represented the plaintiffs in both cases.

Female Baseball Player Challenges Exclusion from Junior High Team

In Mesa, Arizona, after an eighth-grade girl named Jasmine Miles was excluded from her public school's baseball team, her grandfather filed a complaint with the school district. But the school district is still refusing to let her play, arguing that reserving baseball for boys is "in compliance with Title IX, as an equivalent team [i.e., softball] is offered for girls." 

I contend that the "softball defense" is a misinterpretation of the Title IX regulations about cross-over participation:

"...[W]here a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport."  34 C.F.R. 106.41(b).

According to this provision, a school can offer separate teams for girls and boys "in a particular sport" as long as there is a team for members of each sex.  (The exception to this rule for contact sports does not apply, since baseball is correctly omitted from enumerated list of contact sports that appear later in this regulation.)  The regulation says nothing about "equivalent" sports or "similar" sports.  The idea that baseball and softball are interchangeable for Title IX purposes, while convenient for athletic directors, does not derive from this regulation, but from tradition rooted in stereotypes that sought to preserve the sport of baseball as an exclusive male preserve.  I agree with Miles's grandfather, quoted in the article, that baseball and softball are different sports.  They use different facilities, they have different rules, and different equipment.  Just as a school can't hold up its girls' volleyball team as a reason to exclude girls from the boys' golf team, it should not be able to rely on softball as a justification to exclude girls from baseball.    


I hope that Miles and her grandfather continue to fight the school district on this.  Perhaps they can do for Arizona what another baseball-playing girl, Logan Young, did for Indiana.  She too challenged her school's policy of excluding girls from baseball on the grounds that softball was an equivalent sport.  The lawsuit she filed eventually pressured the high school athletic association in that state to change the rules.

Occidental College Conceals Sexual Assaults

Occidental College in Los Angeles has been publically associated with campus sexual assault since April, when it was the subject of a high-profile Title IX complaint with the Department of Education that challenged the way it handles reports of sexual violence.  This fall, the college admitted to underreporting instances of reported sexual assault as required by the Clery Act, but the extent of that underreporting was recently exposed by investigative reporters at the L.A. Times, who found 27 additional assaults that the college did not disclose in 2012, beyond the two dozen that the college originally acknowledged had been omitted from their reports. The Times article further reports that "dozens more" may have also been ignored by the Dean of Students because they were filed anonymously.

The Times reporters also reviewed the initial complaint, and report that it accuses Occidental's President, Dean of Students, and General Counsel of deterring students from reporting sexual violence and retaliating against those that do. For example, an official in the Dean of Students office allegedly tried to talk a victim out of reporting, saying "Are you sure you really want to go through with this? It is a really long and hard process, and it may cause you more pain and suffering."

Occidental's continued response to the issues of sexual assault since last spring's complaint has also drawn criticism. A professor told the Times that the campus safety logs, while now include anonymous complaints, regularly "downgrade" sexual assault to sexual battery.  In an even more bizarre example of obstructionism, the General Counsel, who has since resigned, reportedly organized a group of male student-athletes to stand up for themselves against anti-rape "activists."

While Occidental paid a financial settlement to the initial complainants in order to prevent them from filing a lawsuit, the Department of Education's investigation is still underway.  An enforcement action by the agency could subject the College to fines and other requirements to remedy violations of Title IX and the Clery Act. 

No discrimination found in Jackson State case

Former Jackson State basketball coach Denise Taylor won part of her lawsuit against the university last week. The jury found that there was breach of contract in Taylor's case but did not find evidence of discrimination or retaliation. Taylor, in her claim against her former employer, stated that she was fired after threatening to file a Title IX complaint.
Taylor will received $182,000; the amount left on her contact at the time she was fired. 
None of the published reports discussed the evidence provided at the trial by either side, only that both called former JSU players to testify. the university contended that Taylor had misappropriated funds and engaged in "sexual gender stereotyping."

Temple University Cuts Seven Teams

On Friday, officials at Temple University announced that they were cutting seven athletic teams, reducing their varsity sport programs from 24 to 17.  The board of trustees made the decision recently at an emergency meeting, though it is also reported that it followed a "seven month detailed analysis."  According to a spokesperson, the motivation for cutting teams was the institution's inability to provide "the quality of student athlete care that we would like to have for a Division 1 athletic program with this amount of sports being sponsored" and that they also considered finances, facilities, and Title IX compliance.

I looked at Temple's reported athletics data in order to evaluate the likely role Title IX played in the decision.  Presently, the school's student body is 51.3% female, and it offers 49.2% of athletic opportunities to women.  These numbers are close enough that Temple could make a strong case for compliance with the proportionality prong.  So there's no basis to believe that Title IX played a strong role in the decision to make cuts in the first place.  In fact, the university's stated rationale of having too many teams, more than it can afford to maintain at a high level of quality, rings true given that 24 varsity programs is above average (20) for a Division I school in the Football Bowl Subdivision. 

Moreover, Temple's cuts affect both men's and women's teams: baseball, softball, men's and women's rowing, men's gymnastics, men's indoor track and field and men's outdoor track and field, a total of 172 for men and 84 opportunities for women, producing a distribution of athletic opportunities that are 59% female, 41% male.  If Title IX was a dominant consideration, the cuts would have stopped at a ratio much closer to 51.3% female, 49.2% male. 

Given the minor role that Title IX seems to have played, the cuts seem more likely to belie the speculation that Temple's new athletic administration is "betting big on football," which would explain the elimination of teams as way to redistribute financial support to it biggest team, which is losing both games (2-10) and money right now. 

Breaking news: Former OU grad student loses case

The 5-year case of a former doctoral student who sued the University of Oregon under Title IX is now over. In her lawsuit, the student claimed the College of Education retaliated against her after she complained about the lack of female faculty in the department. At that point, she claimed, faculty members refused to work with her thus preventing her from completing her degree.
There is very little news about the case right now. The brief report I read said the judge concluded that sex discrimination and retaliation were not successfully proven.
(It also continues to perpetuate the myth that this is the first case where Title IX has been used to address an issue outside of athletics. Hopefully the local news outlets in Eugene will remedy this in future stories.)

No charges for Winston; for FSU?

Just when my conspiracy theories were starting to foment, the Florida State Attorney's office announced that it will not bring charges against Florida State quarterback Jameis Winston. So although the investigation by this office took a long time given that the incident was reported just under a year ago, investigators did not wait until FSU was safely through football season to release the report. Of course the findings, as presented, were good for Winston and, by extension, the FSU football community. (One student fan, a sport management major, said the last few weeks have been quite stressful.)

The investigative process itself was problematic (length of time to complete/act), the way the accuser is being treated is more discouraging. Unconfirmed reports that she and her family were encouraged not to make an issue of this in a football town in combination with the reports that she has memory lapses in regards to the events of that night and was drinking at a bar all create a disconcerting feeling about this case. Given the stories we are hearing from college women across the country regarding how they are treated by officials when they report sexual assault, it is not hard to imagine that the accuser was either not taken seriously or ignored. (She has since left the university.)
And though Winston has been cleared, the university is not free and clear. A lawsuit or complaint could put the spotlight on the university's policies around and procedures for handling reports of sexual assault.

Was FSU delinquent in investigation?

When we hear about charges of sexual assault against a male athlete, we usually get details about how police investigations are proceeding or when charges may or may not be brought, potential penalties, etc.
Some of this is happening in regards to the accusations of sexual assault against Florida State quarterback Jameis Winston. For example, prosecutors investigating the claims (almost a year after they were brought to the Tallahassee police which encouraged the alleged victim to not pursue the issue) say that they will  not let the football schedule (or the fact that Winston is a Heisman contender) influence the pace of the investigation which seems to be moving slowly. Though, I would think this would be beneficial to Winston and FSU generally. Nothing formal happening while FSU could contend for the national championship would seem like a good thing him and the team and the school.
Alas, the school itself is under scrutiny because the victim reported the incident, which Winston states was consensual after it was leaked that his DNA was found on the accuser's underwear, when it happened--a year ago. The school was supposed to, under Title IX, investigate within a 60-day window. It is unclear whether that happened, but concern is certainly raised by a school investigation that would be still be ongoing a year later. School officials seemed to suggest that investigations and their pace are a case-by-case consideration, which is actually not the case. And given, well the law, and the visibility of so many instances of institutional indifference and mishandling of sexual assault cases, no school can claim that they just didn't know.
So whatever happens with the criminal investigation, the accuser might have a case against FSU.

Harassment cases roundup

Here are summaries of November decisions in Title IX sexual harassment cases: 

A federal judge in Massachusetts refused to dismiss a Title IX case against Stoughton Public Schools, stemming from an incident in which students circulated nude photographs of the female student plaintiff, precipitating name-calling like "slut" and "whore."  The judge agreed that the plaintiff's allegations, if proven to a jury, could satisfy both the requirement of hostile environment, given that many students were involved and that the hostility was prolonged over many months, as well as deliberate indifference, since the plaintiff claims that the school did not impose any discipline on the students involved, or even call their parents.  Doe v. Town of Stoughton, 2013 WL 6195794 (D. Mass. Nov. 25, 2013).

A federal judge in Arizona determined that a graduate student plaintiff's entire Title IX claim against the Arizona Board of Regents was timely, even though some of the instances of harassment and retaliation she experienced after breaking off a relationship with a faculty member were outside the two-year statute of limitations.  Hostile environment harassment claims constitute a "continuing violation."  Under this designation, since some components of her hostile environment claim took place within two years before she filed suit, the court will consider the entire timeline of harassing events.   Kunzi v. Arizona Board of Regents, 2013 WL 6178210 (D. Ariz. Nov. 25, 2013).  

Similarly, a case against the University of Michigan was allowed to proceed despite a motion for the university that argued that the case was untimely.  There, the plaintiff, a female engineering graduate student, alleged that she was subjected to severe and pervasive sexual harassment and discrimination by her male peers, as well as retaliation by university faculty and employees. The court denied the university's motion to dismiss because even though the harassment began earlier than the statute of limitations period, the plaintiff alleged some instances of harassment, deliberate indifference, and retaliation that occurred within the limitations period.  Dibbern v. University of Michigan, 2013 WL 6068808 (E.D. Mich. Nov. 18, 2013).
 
A student's Title IX case against the Board of Education in Prince George's County, Maryland, was dismissed after a court ruled that a reasonably juror could not find evidence of deliberate indifference on the part of school officials.  In this case, the plaintiff was sexually assaulted by another boy after experiencing (and reporting) several earlier instances of sexualized misconduct by that same boy.  Yet school officials responded to each earlier instance in a reasonable manner, addressing them by such means as talking to the offending student, assigning the offending student to separate classes, requiring that he serve a five-day in-school suspension.  According to the court, imposing liability on the school on these facts would discourage schools from imposing any punishment other than expulsion for any instance of sexual harassment regardless of its nature. Doe v. Bd. of Educ. of Prince George's County, 2013 WL 6065269 (D. Md. Nov. 18, 2013).  

A female wrestler's Title IX claim against her school district can go forward, after a court determined that her complaint adequately alleged that she had put proper school officials on notice of sexualized and gender-biased harassing comments by the wrestling team's two assistant coaches.  Moeck v. Pleasant Valley Sch. Dist., 2013 WL 6048131 (M.D. Pa. Nov. 14, 2013).  

Colorado State University's Athletic Scholarships Found to Violate Title IX

The Department of Education's Office for Civil Rights recently confirmed that it had found Colorado State University in violation of Title IX by offering too few athletic scholarships to its female student-athletes.  The law requires scholarship dollars to be proportionate to the gender ratio of athletes.  48.5% of CSU's student athletes are female, but women receive 42.73% of the university's athletic scholarship dollars. 

The school has reportedly decided to correct this inequity by replacing its women's water polo team with a women's soccer team, because the NCAA allows up to 14 scholarships in women's soccer, while only 8 in women's water polo.  University officials explained that they lacked the financial resources to keep water polo and add another women's sport to which it could allocate more scholarship money.

There's no mention of CSU having considered scaling back scholarship dollars available for men's sports. This would be permissible under NCAA rules, which only cap scholarships and do not require them.   

Title IX Violations Alleged at Amherst and Vanderbilt

Last week, Amherst College in Massachusetts and Vanderbilt University in Tennessee were each alleged to have violated Title IX in they way they handled students' reports of campus sexual assault.

On Thursday, six Vanderbilt students filed a complaint with the Department of Education's Office for Civil Rights.  As an example of Vanderbilt's alleged violation, one of the complainants states that the university did not take any action against the student's alleged stalker once they had pressured her into letting the school handle it rather than going to the police. That same day, two Amherst students filed a similar complaint. One of the allegations it contained is that the school responded to a report of rape by admitting the victim to a hospital psych ward while letting the accused student go unpunished. 

While Vanderbilt is a new name on the list of institutions with apparently problematic sexual assault policies and practices, Amherst has been the poster-college for this issue since last fall, when a student editorial accused the college of suppressing reporting by victims and treating accused students with leniency.  Since then, the college has been responding by revising its policies and by hiring a fill time Title IX Coordinator.  I think that OCR will look favorably on these efforts in any investigation and compliance action that might be forthcoming in response to the complaint. At the same time, the agency's involvement will likely help ensure that the changes promised by the college are both substantive and lasting. 

Montana HS Football Program Mishandled Funds to Avoid Title IX

The Manhattan (Montana) School District is reportedly under fire from the state's interscholastic athletic association after officials there received a tip that the high school football coach was hiding the proceeds of a team fundraiser to avoid having to comply with Title IX. 

Over the last three years, head coach Dale McQueary has withheld $8400 from a team fundraiser (selling gift cards) in order to spend that money without authorization.  His subterfuge included getting students to falsify the number of cards they had ostensibly sold.  This financial mismanagement violates state athletic association rules that requires fundraising proceeds to be reported, so that the school district can ensure that athletic spending overall is equitable on the basis of gender. The coach purchased equipment and meals for his team from this secret stash, ensuring that his team received benefits that necessarily would have been on top of whatever the school had determined was football's fair share. 

Now that the coach's action has been exposed, the state athletic association has asked the school superintendent to present a "corrective plan" for the association's approval.  The association could also impose any number of penalties ranging from a public reprimand to suspension and forfeiture of games.  Meanwhile, however, the school district's reaction to McQueary has come under fire.  Parents successfully challenged the school's decision to suspend McQueary from his coaching position for the remainder of the season, so that he would be available to coach the team's final game.  (Really parents!?)  And McQueary is reportedly challenging the school's decision not to reinstate him as coach next year. 

More evidence at Tennessee

The attention to issues of sex discrimination within University of Tennessee athletics a year ago waned rather quickly, but the department and university is coming back into the media spotlight with news that additional. The two lawsuits filed against the university emerged after complaints of inequitable pay between employees in the men's and women's athletic departments respectively--which Tennessee attempted to justify.  The "football makes money defense" is not likely to hold up in court, though. Also not helping the Vols is the current lack of female leadership in the merged athletic department. In addition to the dismal numbers (which includes a below average percentage of female head coaches at 38.5) are the stories of former employees. It seems that the narrative about Pat Summitt being pushed out of her head coaching job will come under additional scrutiny should the lawsuits go to trial. Also, one of the plaintiffs, during the merger process, was told not to bother applying for the new merged position in media relations because the football coach would not work with a woman. Usually proving discrimination is much more difficult; but when it is announced, well....
The discrimination is quite pronounced as noted by lawyer Kristin Galles, a Title IX expert: "it's all so obvious. It's a window into the discriminatory decision-making that happens every day in college athletics. And the fact that it's happening at a school like this really highlights the extent to which discrimination is a problem everywhere."
The merger is a case study in discrimination within athletic departments.

Now, whether it actually makes it to the courts is uncertain. It would likely be a big media relations disaster for the university given what we have already learned from court filings. And if the dominant narrative that comes out is about how one of the most revered coaches in basketball was forced out of her job against her will, that will be even worse for Tennessee and call into question all the praise they have heaped on Summitt and the credit they have received for advancing women's athletics more generally.

Whitman College Debate Team Addresses Title IX Issues

The college newspaper at Whitman College in Washington state reported in some detail on some Title IX issues that have arisen in the context of their competitive debate team.  According to a recent article, the debate team was the subject of a Title IX complaint filed in August.  (The article does not mention OCR, so I am interpreting this to mean an internal complaint.) The specific contents of the complaint have not been disclosed, but the resulting investigation has prompted the university to suspend the team's travel privileges, which is a big deal to the team since it means forfeiting fall and winter tournaments.

Additionally, the team has committed itself to a plan to address what it admits is a "a culture and climate of inequality, particularly for women." The team has agreed to develop stronger policies addressing harassment and inclusion, to participate in training and education sessions conducted with an external expert on sex and race discrimination, to recruit in a manner designed to attract a more diverse team, and to support female students coming up through high school debate programs.  In addition, the team's published plan of action includes such specific measures as agreeing to conduct all official team functions in an alcohol-free environment, to provide a more formal mentoring of younger students, and even to use headphones "when listening to music that might be perceived as offensive."

When we talk about Title IX issues in the context of particular student organizations or teams, it is usually fraternities and athletic teams that we focus on. This article reminds us that those organizations do not have a monopoly on the kind of climate that supports exclusion, hostility, harassment, and even violence towards women.  It's also a good lesson how to customize a remediation plan to the particulars of an institution.  The students who developed that plan had clearly engaged in some detailed introspection into what unique aspects of their culture (e.g., music with offensive lyrics; the particular places where they recruit for members) need to be addressed. It would be great if all student groups could proactively engage in this kind of soul-searching, rather than in response to a complaint.  At the same time, the fact that a student felt comfortable filing this complaint, and that it was effective in generating this kind of response, is a sign that Whitman College is doing something right.

OCR Concludes Independent Title IX Investigation of SUNY System

In December 2010, the Department of Education's Office for Civil Rights initiated an independent investigation of Title IX compliance at the State University of New York System and its twenty-nine campuses, to evaluate their policies and practices regarding sexual harassment and assault.  (An independent investigation is one that is not prompted by a complaint, but by OCR's own initiative.) Yesterday, the agency announced some findings of noncompliance and published the resolution agreement that SUNY has committed itself to in order to ensure compliance going forward.

Here is a summary of some of the major compliance issues addressed in the findings and the agreement:

• The SUNY System and some of the SUNY campuses did not have designated Title IX Coordinators, so the Agreement requires SUNY to ensure that SUNY’s administrative office and each SUNY campus has designated a Title IX Coordinator, and that notice is provided to students and staff ofthat person's contact information. The agreement requires the SUNY System to revise its grievance procedures, as well as the individual campus procedures, to ensure that these comply with the requirements of Title IX. In addition to looking at written policies, OCR examined how four of the 29 SUNY campuses handled reported cases in recent years. OCR found several problems with the System's procedures, including not expressly stating their application to complaints of sexual harassment committed by third parties, not include assurances "that SUNY will take steps to prevent further harassment and correct its discriminatory effects, as appropriate," not providing express protection against retaliation for reporting sexual harassment; failing to include examples of harassing conduct and a definition of sexual assault/violence; and failing to address interim measures for keeping the complainant safe during the investigation and resolution of her complaint, among other problems. 
• The individual campus-wide procedures contained many of the same problems, as well as such additional issues as failing to ensure a prompt time frame for investigating complaints or a full independent investigation of a student's complaint, not using a preponderance of evidence standard for evaluating evidence against the accused student, and not providing notice of a hearings or notice of outcomes to the complaining student as well as the accused student.
•  The four campuses selected for review of recent complaints will reexamine those complaints to determine whether each as handled according to procedures as required by Title IX.  Those schools must take appropriate action to correct the problems identified.
• The agreement calls for enhanced training of all staff responsible for recognizing and reporting incidents of sexual harassment, and to people with Title IX compliance and implementation responsibilities, as well as campus-wide training directed at students to teach them how to recognize and report sexual harassment and sexual assault. 
• Each campus will conduct annual climate checks and report results to OCR for the next three years.

Ottawa College to add wrestling

Two of the many things we at the Title IX Blog are interested in are: 1) the reasons behind why schools choose to add specific sports; and 2) wrestling programs.
The news that Ottawa College in Kansas is planning on adding both women's and men's wrestling to its roster of intercollegiate athletics, then, caught our attention.
Wrestling, of course, has been central in many of the debates about Title IX with some supporters arguing that the decline in wrestling programs at the intercollegiate level has been caused by the legislation, despite evidence to the contrary.
We have seen, though, that non-Division I schools are considering wrestling a viable option when adding sports and that women's wrestling can help preserve Title IX compliance and, at times, men's wrestling. This is not the case at Ottawa which will begin both programs from scratch.
The school, which will introduce the sport in the 2014-15 academic year, has begun looking for a head coach and student-athletes.
One of the reasons why the school chose wrestling is because administrators are committed to maintaining a high level of student-athlete academic achievement and wrestling. They found that elite high school wrestlers at the national championships maintain an average 3.0 GPA. Additionally they see the promise in women's wrestling, which continues to grow.

A new complaint and activist connections across colleges

The last year plus has been a watershed one in terms of the attention to and awareness of sexual assault on college campuses. It is difficult--and likely unnecessary--to figure out which set of complaints, which campus activism set off the firestorm. And new complaints are emerging at a fairly steady pace. Erin wrote about the group of complainants that came forward at UConn just this week. We can also add Emerson College to the list of schools dealing with complaints. A student came forward this fall stating in a complaint that the school had taken a long time to investigate her claim of sexual assault against a fellow student in the fall of 2012 and that during that time he assaulted her again. The college responded to Sarah Tedesco's inquiries about the process by telling her to stop making such a big deal out of it even as she continued having to live in the same residence hall and when she began receiving anonymous threats. They encouraged her to handle the matter the internally and not involve local police. The school eventually found the accused not responsible. Tedesco is joined in the complaint by other Emerson students who also recount some serious mishandling of cases and some pretty heinous judicial processes.
Tedesco, like many other women and men who have been part of the complaint process nationwide, have joined others across the country to raise awareness not just of their respective schools, but of the problems institutions of higher education seem to have with informing their own staff about how to handle cases of sexual assault and harassment and creating a non-hostile environment on their campuses.
This solidarity has been quite productive and, I would imagine, quite healing for survivors. One of these women, Angela Epifano, a former Amherst College student who came forward with her story of sexual assault and the subsequent mishandling of her case, spoke about the new community that has emerged in just the past year around activism  to fight sexual violence on campuses. "I never thought it would go viral" she said of her account in the school paper. But the visibility of her case created greater visibility for others. One of the women who is part of the complaint at University of North Carolina, Annie Clark, has been part of the rapidly growing community of activists who have been communicating through various channels for less than a year.
"Before this movement, I had never even heard of Occidental College. Now, I've helped them write their own complaint, and I now have best friends there. The connections have been amazing."
While it is hard to enjoy the growth of the movement because it means so many people have been victims, it is  encouraging to see effective activism at work.

UConn Women File Sexual Assault Complaint

A group of female students and former students at the University of Connecticut have filed a complaint with OCR, alleging that the university failed to adequately protect them or respond to instance of campus sexual assault. One of the students alleges that she rebuffed by campus police, who did not take serious the threats of rape she received after publicly criticizing the university athletic department for not adequately addressing instances of assault instances involving male athletes. Another claims she was victim-blamed by a campus police officer, who told her that "women need to stop spreading their legs like peanut butter, or rape is going to keep on happening until the cows come home." That same student alleges that she was not notified when the university revoked the sanction of expulsion it had initially applied to her assailant, and she had to confront him in the dining hall.  A third student also reports that campus police ignored her complaint that she had been assaulted by a male student athlete.  If an OCR investigation determined that these allegations are true, it could use its Title IX enforcement power to require the university to improve its sexual assault policies and practices.

The students are represented by attorney Gloria Allred, who also represented the students from Occidental College in a similar matter.  Occidental recently paid a financial settlement to avoid a lawsuit with the complainants.

Know Your IX (in less than 90 seconds!)

The Know Your IX activists have produced this video which is a quick guide to an individual's legal rights and a school's responsibility. (More detailed information is at their website.)

In Forthcoming Article, Law Professors Argue Public Single-Sex Education is Unconstitutional

Professors David Cohen and Nancy Levit's article on the constitutionality of public single-sex education, which is forthcoming in the Seton Hall Law Review, was recently posted on SSRN.  The authors conclude that neither of the commonly cited justifications for segregating classrooms -- presenting a diversity of education options and research into sex-based differences in learning styles -- warrant a sex-based classification under the Equal Protection Clause.  Here is the abstract:

Since federal regulations authorized single-sex education in 2006, there has been an explosion of single-sex schools and classes. Although the Supreme Court has not ruled, three federal court decisions have addressed the constitutionality of single-sex classes, and the issue will percolate toward Supreme Court review soon. The arguments are that parents should have choices and “diversity” of educational options, that “brain research” shows that boys and girls are so biologically different to need sex-specific educational environments, that educational outcomes are better, and single-sex learning environments allows boys and girls to break through gender stereotypes. This article dissects these arguments within the context of the constitutional doctrine of sex classifications, concluding that none is an “exceedingly persuasive justification” for the pernicious harms that are associated with sex segregation.

The article demonstrates that “diversity” was never intended to support segregation. It explains that parental choice does not eliminate the problem of state-sponsored segregation based on sex. Courts must address whether single-sex education is supported empirically before allowing it as a publicly funded option. The article reviews studies showing that most sex-differentiated behavior is learned, and biological differences do not justify sex-specific teaching methods. The article also examines studies of academic and emotional outcomes in single-sex and coeducational environments which confirm that the vast majority of outcomes do not support single-sex education.

The article then explores the formation of gendered behaviors and attitudes. The way that schools have been implementing single-sex education promote gender essentialism. Sex-segregation increases students’ and teachers’ stereotypes about sex and gender, gives them outlets for expressing those beliefs, and creates opposition between the groups. In short, sex segregated education violates the Equal Protection Clause, it has no “exceedingly persuasive justification” and instead exacerbates “outdated stereotypes” while “create[ing] [and] perpetuate[ing] the legal, social, and economic inferiority of women.”

Girls charged as juveniles in Florida bullying case

In a case of bullying that stands out because, as some experts note, of the length of time and the number of students involved in the bullying of a 12-year old girl who killed herself last month, criminal charges have been filed against two of the alleged perpetrators.
The details of the case are not particularly unusual (we have certainly heard worse) and seem to involve a boy who was a romantic interest of the victim and one of the alleged bullies who was the apparent mastermind of the constant verbal, emotional, and physical abuse of the victim.
What I found interesting about the reporting of the case. First, just how unusual this case is in terms of length of bullying and the number of students involved is probably up for debate. Given the long-held beliefs that bullying is just part of growing up, the ineffectiveness of many schools in intervening, the prevalence of cyberbullying that goes unchecked by parents and school administrators I would guess that there have been other (unreported/underreported) cases of long-term, mob-like bullying that have not made national news.
Second, I was very surprised by the lack of discussion about the role of school administrators in this case. The victim did switch schools at some point to physically get away from the bullying, but it continued online (this cyber trail was what alerted authorities). The victim's mother only said that the school district did not do enough to stop the bullying. The original school did change the schedules of the victim and the primary bully because of the prevalence of physical fights between the two.
But the lack of school involvement and discussion of the apparent laissez-faire attitude is surprising. While the two girls who have been arrested should be held accountable if they are found guilty, some additional attention needs to be placed on the school, its teachers and administrators. Florida, as a state, has not ignored the issue of bullying. They have an anti-bullying law, which the legislature even updated this past summer to include cyberbullying. And so it is surprising that the school did not intervene more.
Though the focus now remains on the two main bullies and their pending trial in juvenile court, I hope that attention is turned to the role the school played--or should have played--in this case.

Title IX Godmother Inducted to Hall of Fame

Over the weekend, Title IX advocate Bernice Sandler was inducted to the National Women's Hall of Fame in Seneca Falls, NY, alongside other notable women including Nancy Pelosi, Betty Ford, Kate Millett. Sandler has spent a lifetime challenging sex discrimination in education, inspired by her own experience in 1969 of being told she was not considered for a faculty position because she reportedly came on "too strong for a woman." Sandler realized that an executive order signed by President Johnson in 1968, which barred government contractors from discriminating on the basis of sex, could be used to challenge gender quotas in higher educational admissions and hiring.  Sandler and the Women's Equity Action League (WEAL) used that strategy to file complaints with the Department of Labor against hundreds of universities -- an effort that also served to underscore efforts in Congress to codify a ban on sex discrimination into law. Sandler worked with Representative Edith Green, Senator Birch Bayh, and other congressional leaders to add the provision we now call Title IX to an omnibus educational bill that was enacted in 1972 -- a role that earned her the nickname "Godmother of Title IX."  She's been a defender of the law and an advocate for its enforcement ever since, and today serves as a senior scholar at the Women's Research and Education Institute in Washington.

Congratulations to Dr. Sandler for this most deserved honor!  

Fault admitted in California

Both Occidental College and the University of Southern California have said that they violated the Clery Act by underreporting sexual assault on their respective campuses as well as improperly handling some cases of reported sexual assault.
Occidental--on the advice of an outside consultant, according to school officials--reported a total of 19 incidents over a three-year period rather than reporting incidents per year, as required.
At USC more than a dozen anonymous complaints from 2010 were not reported. 
Clery Act violations incur fines of up to $35,000 per violation. There has not been any official figure provided by the currently shut-down government and it is unclear how these admissions will affect the investigations triggered by student-driven complaints.

Settlement Binds D.C. Public Schools to Compliance Plan

Well we aren't expecting much news from the Department of Education's Office for Civil Rights this week, due to the government shutdown.  Not surprisingly, Title IX enforcement is one of the many casualties of the political situation in Washington. 

But there is some news to report, in that just prior to the shutdown, OCR entered into a resolution agreement with the D.C. Public Schools.  As the Washington Post reported on Tuesday, the agreement settles one of two pending complaints against DCPS alleging gender inequity throughout the city's high school athletic programs. The settlement requires DCPS to gather information about the number of participation opportunities available for girls and boys and to monitor girls' interests in sports that the schools do not yet offer. This information, which DCPS must report to OCR on an annual basis, will form the basis for its obligation to respond to the gender gap in opportunities by adding appropriate new opportunities for girls.  As we noted in an earlier post, at most of the D.C. high schools, a double-digit disparity separates the percentage of athletic opportunities for boys from the percentage of opportunities for girls.

The complaint against DCPS was filed by Herb Dempsey, whom the Post described as "a retired educator and activist in Washington state" who is the "head of a loose coalition of retired men that calls itself 'Old Guys for Title IX'" that has filed thousands of similar complaints across the country.  Another Title IX complaint against  DCPS  filed by the National Women's Law Center on similar grounds remains pending. It is not yet clear how the recent settlement will affect the resolution of that case. 

Students Claim Retaliation for Complaining About Hazing Assault

A family has filed a lawsuit in federal court in Tennessee, alleging that two daughters were kicked off of the Siegel High School basketball team in retaliation for complaining about an incident in which they and another were the victims of sexual contact initiated by another player on the team. The complaint claims that the reprisal against their daughters constitutes a violation of Title IX by the Rutherford County School Board. 

The Board agrees that an offensive incident took place last year, but denies that it was sexual in nature, referring to it instead as "goosing" or "poking them between the buttocks."  The Board also denies that the decision to remove the girls from the team had anything to do with their complaint, arguing instead that it was the consequence of the girls having repeatedly missed practices and other conduct issues.  The Board's claim that they investigated and reprimanded the offending student after it was reported could also cast doubt on the plaintiffs' theory of retaliation, since often in retaliation cases the purpose of reprisals is to suppress whistleblowing on an institution's failure to address the underlying offense.  It's hard to imagine what would motivate the school to retaliate against the girls if it indeed took seriously their reports of the offense.

Agreements reached...

...in Portland, Maine where an investigation by OCR found that girls received fewer opportunities for participation in interscholastic sports than their male peers. The investigation also revealed some disparities in facilities. Under the agreement, the district will add girls' volleyball for the 2014-15 season and ensure equitable locker rooms, practice and competitive facilities. Administrators will also begin a process of assessing whether the district meets either prong one (proportionality) or prong three (interest) in determining the sport opportunities girls in Portland's schools receive.

...in the Union County (South Carolina) School District. Interestingly chairperson of the school board BJ McMorris announced at a meeting last week that OCR found no merit to a complaint filed in December 2012. Curious announcement given that a voluntary resolution agreement would not seem necessary for a complaint with no merit. Sure, some things will be improved, the public was told at last week's meeting, but nothing was ever really wrong was the message (along with a little passing of the buck--see below).
One of the issues with the resolution agreement process is the "no fault" aspect. Whatever semantic dance administrators--at all levels--are doing, an agreement means something was wrong that needs to be fixed.
What happened in South Carolina was that one part of the complaint in which the complainant argued that there were gender-based differences in punishments meted out to student-athletes was found to have no merit. Other aspects of the complaint and the OCR investigation did not, however, find Union County to be in tip-top Title IX shape.
Superintendent Kristi Woodall said she felt bad for the taxpayers who have to foot the bill for the work the district had to do compiling documents and otherwise accomodating OCR during the investigation. It was a throw-OCR-under-the-bus move. There have been plenty of times that OCR does not invesitgate a complaint because it does not seem to have merit.
Woodall is blaming OCR for doing its job and not taking any responsibility for its own non-compliance.
But OCR fired back seemingly immediately after the above-linked article was published in the local newspaper. A letter to the paper (which also bears some responsibility for not questioning a resolution to an proclaimed non-situation) included this statement:
“...OCR’s investigation determined that the district failed to provide female athletes equal opportunities with respect to: equitable facilities, including practice and competitive softball fields; strength training facilities and locker rooms; laundering of uniforms; pregame meals; scheduling and number of games; and maintenance of uniforms.
On Sept. 24, 2013, the district signed a Resolution Agreement to address these Title IX compliance concerns. OCR expects to issue a letter of findings, with accompanying Resolution Agreement, by the end of this week.”

...in Gloversville, New York after a January 2011 complaint triggered an OCR investigation. This is another case of spinning the situation with the superintendent of the Gloversville Enlarged School District saying that OCR found nothing wrong but that the district would be making some improvements. A project in which many of the district's fields and facilities were renovated dealt with some of the issues raised in the complaint, but the district will still be required to: schedule some girls' softball games on the lighted fields, fix the drainage on the softball fields, and make sure that a shared field is properly prepared for each respective sport that uses it.

Straight Talk from Rutgers AD on NCAA Stipend Proposal

Rutgers University Athletic Director Julie Hermann was interviewed in the local press about the challenges of helping college athletes cover the true cost of education.  Last year, the NCAA voted to allow Division I institutions to award $2000 cost-of-living stipends to those athletes already receiving a full scholarship, to cover the kind of incidentals outside of tuition, room and board.  The plan was later rescinded but the concept is still under consideration.  

As Hermann notes, the original stipend plan was inequitable from the start in terms of gender, given that far more male athletes (those in so-called "headcount sports") than female receive full scholarships and would be eligible for the stipend.  Counting the scholarships awarded in the headcount sports of men's football and basketball, Hermann notes, " you have $200,000 you can now award to your men, which is great. But that only gives you $60,000 that you can award on the women’s side [in volleyball and basketball]. You’re automatically $140,000 off.”

There's not an obvious fix, it seems.  Simply expanding eligibility to include equivalency sports, Hermann explains, would tremendously increase the total cost to institutions of funding the stipend.  People view the stipends as a way to share the profits with the athletes whose efforts generate those funds.  But most university athletic departments, even those with football programs, are not profiting on athletics.  Hermann notes that many football programs don't even turn a profit.  So the money for the stipends is coming from the university (tuition) or elsewhere in the athletics budget. So the possible consequence is that universities will cut equivalency sports in order to be able to pay out stipends to everyone else -- something Hermann doesn't want to see. 

Another challenge with the stipends, it appears, is that there's some evidence suggesting the students who received them didn't spend them as intended: "They’re buying a $500 pair of jeans that you and I don’t spend money on. So yes we could make them a card, but you have to teach them financial management. We’re trying to feed and clothe you, give you everything you need (via the stipend), but we’re not trying to make you into fashionistas."

Hermann's right that there's no easy answer to the fundamental questions of fairness that underlie this issue.  It's good to know that athletic directors like Hermann are cognizant of the gender equity implications as well as the potential implications for equivalency sports. Her remarks suggest that for most schools, stipends are not the answer, and will only drive an additional wedge between athletes in some sports that happen to be  popular with the public and others that are not.  It's becoming increasingly difficult to imagine an NCAA that governs the handful of profit-earning institutions along with everybody else.

Occidental College Settles With Sexual Assault Complainants

Occidental College will reportedly pay an undisclosed sum to settle with students and faculty who have complained to the Department of Education that the College failed to properly handle their complaints of sexual assault.  The complaint against Occidental was one of several filed last spring as part of a coordinated student campaign to promote enforcement of Title IX and the Campus SaVE Act. 

The settlement is confidential, so not much is known about its terms, other than that those bound by the settlement have agreed to not speak publicly about it.  I suspect that what the College has really paid for is the promise by the parties not to file a lawsuit for damages against the school. Public enforcement unaffected by a settlement between parties, so it was unsurprising to read that the Department of Education's investigation remains ongoing.

ACLU Files Complaint in Bathroom Bias Case

Here is an update on the transgender bathroom case in Florida that we blogged about last month.   The ACLU has recently filed a complaint with the Department of Education challenging the Pinellas Tehnical Education Center's decision to exclude a transgender woman student from the women's bathroom.  This complaint came on the heels of a demand letter sent to the Center, which the Center has apparently ignored.  The complaint succintly summarizes why the discrimination against their client constitutes sex discrimination under Title IX:

Requiring Alex to use separate restrooms than those used by other students constitutes sex discrimination in violation of Title IX. First, it is per se sex discrimination because the differential treatment is based on her gender identity. Macy v. Holder, 2012 WL 1435995, at *6 (E.E.O.C. Apr. 20, 2012) (“Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex . . . .”). It is further per se sex discrimination because the treatment is based on her gender transition. See Schroer v. Billington, 577 F. Supp. 2d 293, 308 (D.D.C..2008) (discrimination based on plaintiff’s plan to undergo transition “was literally discrimination ‘because of . . . sex’” under Title VII) (alterations in original). Finally, this treatment is unlawful sex stereotyping because Alex is being treated differently based on her failure to conform to gender stereotypes—PTEC does not consider her sufficiently feminine to use the women’s restrooms. See Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (“[D]iscrimination against a transgender individual because of her gender-nonconformity is sex discrimination.”).

District of Columbia considering mandatory reporting

Research has shown that girls in urban communities have far fewer athletic opportunities that their suburban counterparts as well as their male peers. The Women's Sports Foundation has focused some of its programs on this issue in an attempt to close the gap. These programs are aimed largely at organizations and activities outside of the schools (after school programs, recreational sports). But now, recognizing the Title IX implications (the two complaints--one from the National Women's Law Center--might have helped raise some awareness!) of the disparity as they manifest in the schools, the DC Council is proposing a bill that would require the reporting of equity data by all elementary, charter, middle and high schools in the district. And it does not just call for reporting participation numbers. Schools would also have to report how much they spend on sports, the quality of equipment, and availability of facilities for boys' and girls' sports respectively.
A similar piece of legislation was proposed several years ago (prior to the two complaints), but did not pass. Currently, 5 out of the 13 council members are supporting the bill. 

ACLU Presses Florida Technical College to Let Transgender Student Use Women's Bathroom

The ACLU has gone to bat for a transgender woman nursing student at the Pinellas (Florida) Technical Education Center who has been denied access to the women's bathroom, by issuing a letter demanding that they restore her right to access the same facilities as other female students.  The ACLU's client, Alex Wilson, identifies and presents as female, and is listed as female on her drivers license and Social Security card.  Additionally, she had undergone hormone therapy for four years.  She had up until this summer used the women's bathrooms at PTEC without incident, but was barred access by school officials after they discovered that she is transgender.  Since then, Wilson has been offered various bathroom alternatives, such as single stall toilet the "storage area" of a separate building, or the men's faculty restroom for which she would need to ask for a key, but none are as convenient or accessible as the women's room would be. Nor do those alternatives afford the same degree of dignity and respect for her female identity.

The ACLU's letter explains that the failure to treat transgender women in a similar manner to non-transgender women is a form of sex discrimination, which is prohibited by Title IX.  The letter cites legal authority from the employment context, including a 2012 decision by the federal Equal Employment Opportunity Commission recognizing that a transgender gender identity could not be the basis for singling people out for different treatment.  In addition to demanding Wilson's access to gender-specific aspects of the nursing program, including the women's bathroom, the ACLU letter encourages PTEC to adopt GLSEN's model policy for inclusion.

The letter does not include an express threat of litigation.  But that would be the likely outcome in the event that PTEC failed to honor the ACLU's request on behalf of Wilson.

Massachusetts School District Enters Voluntary Resolution Agreement

Framingham (Massachusetts) Public Schools has reportedly entered into a voluntary resolution agreement with the Office for Civil Rights, obligating itself to “promptly and equitably” address complaints of sexual harassment and sexual assault in the future, and to strengthen its policies and staff training around those issues.  As we have earlier noted on the blog, Framingham schools were the subject of a Title IX complaint and subsequent federal investigation over complaints that school officials took it easy on a male student-athlete accused of sexually assaulting two female students. 

Under the agreement, the school district has until October 1 to add the name and contact information for the district's Title IX Coordinator to its website and student and employee handbooks, to instruct staff and faculty to report incidents of sexual harassment that come to their attention, and to communicate to students and parents the school's policy defining, prohibiting, and outlining the consequences for sexual harassment.  It must also establish a memorandum of understanding with the local police that clarifies the school district's independent obligation to address matters of sexual assault involving students, and by June, establish a plan to track and handle complaints of sexual harassment and assault. 

California Passes Transgender Rights Law for Students

On Tuesday, California Governor Jerry Brown signed into law A.B. 1266, the School Success and Opportunity Act, which requires public schools in that state to respect a student's gender identity for purposes of all activities, including sports participation, and facilities like restrooms and locker rooms.  California is the first state to pass such a law, though Massachusetts, Colorado, and Maine have regulatory policies that require schools to allow students to participate in single-sex programs or use single-sex spaces according to their gender identity, regardless of their sex assigned at birth.

California's law provides important protection to transgender students, who may otherwise be treated differently from other students with the same gender identity, simply because their gender identity is at odds with their birth sex. Arguably, such discrimination is a subset of sex discrimination that is prohibited by Title IX. A recent settlement negotiated by the Department of Education's Office for Civil Rights suggests that the government may be interpreting Title IX to require schools to regard students in the manner of their gender identities would help clarify this obligation across the states.  But until the Department of Education or the courts clarify that Title IX applies to transgender students who want to be treated just like other members of their affirmed sex, state-level protection like California's will provide the strongest, clearest mandate for the full inclusion of transgender students.

Nine for IX, Part III: The Biographies

The middle of the ESPN's Nine for IX series is comprised of biographies of individual athletes. In this post I discuss films 4 and 5 which feature two very different athletes: former collegiate and professional basketball player Sheryl Swoopes; and freediver Audrey Mestre. The former is the more well-known, but the story--which I watched twice--of the latter, whom I had never heard of, left me with a feeling of discord/agitation.
Regarding the former, though, Swoopes left me a feeling of "eh." Choosing Swoopes as a sole feature for one of the films in the series might not have been the best idea given the rather lackluster film that emerged. I would rather have seen a film about the initial start of the WNBA and its central figures--both players and administrators, which was the most interesting part of Swoopes, in my opinion.  Though she was, at least briefly, the female Michael Jordan (in part because of her deal with Nike that included her own shoe!), even the documentary pointed out that she was not the sole face of the then brand new WNBA. And, as was proven when she was out on maternity leave during the first season of the league, she was not unequivocally the best player in the league.
There were a lot of potentially interesting moments in the documentary, but--as has been the case with the films in this series--they remain unexplored. For example, the fact that Swoopes went broke. Athletes mismanaging their earnings is an under-discussed issue. Is it a personality issue? A cultural issue (i.e., is there something about sports and the potential for high financial rewards that leads to over-spending)? I appreciated the more in-depth look at her role as a mother; something that went beyond just posing pregnant for the now-defunct Sports Illustrated for Women. I very much disliked the white, male sports writer who continually disparaged Swoopes during the film referring to her as a diva. Not sure why the director and producers felt his comments were essential to the film. I appreciated the lack of sensationalism around her sexuality. But in the end, Swoopes herself didn't come off as an especially interesting or poignant character, and though she just got a job coaching collegiate basketball and is engaged to be married, she came off as kind of a sad figure who has not dealt well with her post-playing life.
More than sad--devastating really--was the story of French freediver Audrey Mestre who was featured in No Limits. I very much appreciated the the executive producers of Nine for IX chose a more non-traditional sport. But I question the place of this film, this story, in the series. No Limits is about the death of Mestre during her attempt at a record-breaking free dive (a sled-assisted descent into deep waters done without air tanks). Mestre died trying to break the record of another female freedriver, Tanya Streeter, who was interviewed for the film, when the air bag that was supposed to whip her back to the surface did not inflate (empty canister). Though I had not heard of Mestre's story, it was already the focus of considerable media attention, including a feature story in Sports Illustrated, a book by one of her husband's former business partners, and another documentary about freediving. The story is really about Mestre's husband, Pipin Ferreras, who is seemingly responsible for her death as he was in charge of all the safety measures, including making sure that the canister is filled--and their relationship.
There was minimal questioning of the involved parties after Mestre's death and no investigation because, in the Dominican Republic where the dive was staged, an investigation only occurs when a member of the immediate family requests one. Still Ferreras has been subject to scrutiny within the freediving community and the sports world. Some accuse him of outright murder, some of manslaughter due to negligence but nearly everyone agrees he is, at best, a narcissist who may have had troubles with the fact that his wife was becoming a more successful freediver than he was (he had mostly stopped diving because he kept passing out).
The evidence is disturbing. The whole film was disturbing (which we were warned about in the opening credits as the directors showed scenes of the dive when Mestre was pulled from the water unconscious). I was left wondering what the point of this film was. It was not a beautiful tribute. It was not an exploration of a little-known sport. It seemed to merely reiterate the Sports Illustrated story while adding a few more characters to the story. It felt somewhat sensationalistic and I felt like a voyeur watching it.
I think this is part because, again, issues were raised but left unexplored. Let's talk about domestic abuse, which could have been part of this relationship--especially mental abuse. Let's talk about unhealthy male coach-female athlete relationships which still do not receive enough attention. In so many ways this story mirrors that of other female athletes (who fortunately have not died) who have been trained by abusive, narcissistic male coaches who continue to go unpunished.
The series keeps stopping just short of doing something; of getting people talking about real issues. In the other films where this has occurred I find it more of an annoyance and a valid critique of the individual film. In the case of No Limits, I think this failing has moral implications that the directors and the series producers have not considered. They used graphic footage of a woman dying, used the voices of others to suggest that her husband is responsible for her death, and then cut to credits.

Settlement in Indiana bullying case

The story and case of Darnell "Dynasty" Young was one that we have not covered. Young was expelled for bringing a stun gun to school as a form of protection against students who were harassing him because of his gender expression and sexual orientation. Young, now 18, filed a lawsuit in August 2012 against the school district alleging that it did not do enough to protect him against the harassment. Young was harassed because he sometimes chose to wear accessories and clothing that were deemed more feminine (but within the school's dress code). School officials to whom Young reported the harassment told him he was bringing it on himself through his sartorial choices and that he should try to be less flamboyant. The settlement, announced in early July and subject to a judge's approval, includes $65,000 to Young as well as the erasure of Young's expulsion from all his records. Young is starting college this fall and said the money will go towards starting an anti-bullying magazine. He also plans on speaking about bullying in various Indiana schools and would like to start an anti-bullying campaign when he finishes college.

Another Male Student Files Title IX Case Over Sexual Assault Grievance Proceeding

After blogging about a similar case against St. Joseph's University, we've learned of another male student, accused of rape, who has filed a Title IX case against his university to challenge the grievance proceeding that lead to his expulsion. Peter Yu's complaint against Vassar College describes a consensual sexual encounter that later resulted in allegations of rape against him. He argues that the grievance proceeding used to find him guilty was procedurally flawed by the denial the effective assistance of any advisor, the opportunity to cross-examine his accuser, and the opportunity to call other witnesses.  He also argues that the panel that conducted his hearing was biased against him, in that it was made up entirely of faculty members and did not include a student, and that those faculty members were all colleagues of the accuser's father, a Vassar professor.

Inside Higher Ed is covering these cases, and reporter Allie Grasgreen asked me to speculate on how plaintiffs like Yu and Harris might prevail under Title IX.  I said that I thought it would be difficult for either one to demonstrate that the university was discriminating against them because of sex, as the statute requires.  Neither one is likely to have access to evidence amounting to a smoking gun, like a university official admitting to rigging the process out of disdain for men. Nor is likely they could create an inference of such intent by, for example, arguing that male students accused of rape are treated differently from female students accused of rape (because there are not likely many examples of the latter category).

Title IX plaintiffs may alternatively use the disparate impact framework, rather than having to prove that university officials were biased against men.  A disparate impact claim requires the plaintiff to show that the university's otherwise-neutral policy or practice adversely affects men in some statistically significant way. This seems to be the route Yu's lawyers are pursuing, given their arguments that "Vassar’s guidelines and regulations are set up to disproportionately affect the male student population of the Vassar College community as a result of the higher incidence of female complainants of sexual misconduct against male complainants of sexual misconduct" and that "male respondents in sexual misconduct cases at Vassar College are ...invariably found guilty, regardless of the evidence, or lack thereof."  But this too will be a difficult argument to pursue, as it requires the plaintiff to show not only that male students are overwhelmingly found guilty, but falsely so.  The amount and type of evidence that would be necessary to make that showing would be very difficult to acquire.

But just because Title IX is a difficult cause of action for male plaintiffs to sustain in these cases, doesn't mean that men are without recourse when falsely accused.  Vassar's policy that governs disciplinary hearings is effectively a contract with its students.  To this end, Yu's complaint contains a breach of contract claim as well as others like negligence and unfair and deceptive practices.  I suspect that if he prevails in this litigation, it will be on one of these claims.

Campus SaVE Act Codifies Institutions' Sexual Assault Response Requirements

As I posted yesterday, I just attended the annual conference of the Association of Title IX Administrators, an organization doing good work to empower Title IX coordinators and other college, university, and K-12 officials with information and strategies for compliance and best practices. One of the most valuable sessions for me was the one focused on the recent congressional amendments to the Clery Act (see part f), the statute that requires post-secondary institutions that participate in federal financial aid programs to report statistics on various campus crime, including sexual assault. While the Clery Act is a distinct statute from Title IX, the overlap and interrelation between the two warrants ATIXA's focus as well as the focus of this blog.  

The amendments, collectively known as the Campus Sexual Violence Elimination Act (Campus SaVE Act), were passed as part of Congress's reauthorization of the Violence Against Women Act earlier this year.  Campus SaVE adds new crimes to the list of those which, under Clery, must be tallied and reported to the government in annual security reports (ASRs). In addition to statistics on sex offenses, both forcible and non-forcible, that must already be reported, ASRs must now include data on occurrences of domestic violence, dating violence and stalking.  Campus SaVE also requires institutions to report on their policies and procedures designed to prevent and address sexual assault and other intimate partner violence.  These policies must include provisions regarding the institution's obligation to notify victims of their rights to report and pursue relief from local law enforcement, as well as to provide information about available campus resources and possible accommodations.  Institutions' disciplinary procedures used to address accusations of sexual assault/violence must include specific provisions meant to equalize the playing field between accused and accuser, such as the accuser's right to request prompt proceedings, the right of both parties to be accompanied by an advisor and to present testimony, and the right of both parties to be informed of the proceeding's final results.  Institutions must also report to the government what efforts they undertake to prevent campus sexual violence, specifically including programs aimed at primary prevention (i.e., stopping rape and violence before it occurs) that extend beyond risk reduction (e.g., telling female students not to walk alone at night or leave their drinks unattended at a party).  The efforts described must also include information on bystander intervention and a clear definition of consent. 

  

In many ways, the new requirements under Campus SaVE echo the compliance steps OCR laid out in its 2011 Dear Colleague letter containing its interpretation of how Title IX requires colleges and universities to prevent and address sexual violence.  But, as the ATIXA presenters explained, it is significant that these requirements now appear as part of a congressional statute. Unlike agency policy, which can change with the next presidential administration, statutes can only be amended by a majority vote of Congress.  Moreover, as a part of the Clery Act, the Campus SaVE provisions are likely to have more teeth, since Clery authorizes the Justice Department to issue fines for noncompliance.  In contrast, OCR’s primary weapon in Title IX enforcement—revocation of federal funds—is a gun too big to use, which as a result has never been fired.  Title IX violations are thus often remedied by nothing more than a promise to do better, while Clery Act fines are serious business (hello Yale) that are likely to operate as a stronger deterrent to noncompliance.       

  

ATIXA's presentation on these requirements provided straight talk to educational administrators about compliance.  This is not an organization devoted to finding loopholes and helping institutional members get away with minimal compliance.  Yes, ATIXA presenters kvetched about the many ways in which these new requirements are not college and university-friendly.  But part of their message was that government intervention—whether in the form of congressional statute, or a steady stream of new Dear Colleague Letters from the OCR—is the price institutions pay for their past attitudes of minimalism and avoidance.  The underlying message, tailored to the audience of university administrators, was: you can look for loopholes, and play roulette with enforcement; but if you want the government to back off and trust you, start doing the right thing.  Imbue your compliance efforts with the primary motivation of actually helping to report, investigate, address, and prevent sexual assault and other gender-motivated crime.  Do what’s right for students, for their sakes, and at the same time, you'll be doing what's right for the sake of avoiding liability and noncompliance.

Know Your IX Addresses ATIXA Conference

I am headed home from Napa, California, where I've spent the last couple days attending and presenting at the annual conference of the Association of Title IX Administrators (ATIXA).  It's been an amazing conference.  I've learned so much--from the opening keynote speaker, Emily Bazelon, journalist and author of a new book about bullying, to panels on Clery and Campus SaVE Act compliance (more in a future post) (presented by ATIXA attorneys), decriminalizing university responses to sexual assault (Nancy Chi Cantalupo), and sticky issues when harassment and assault occur off-campus or involve third-parties (Joni Baker).  But I think the show-stoppers were Alexandra Brodsky and Dana Bolger, two student leaders in the Know Your IX campaign, who were our closing keynote today.  Know Your IX is informing and supporting students across the country addressing campus sexual assault.  Students associated with Know Your IX have been involved in several of the high-profile complaints to OCR about various colleges insufficient responses to sexual assault.

I liked many things about Brodsky and Bolger's presentation.  First, by chance, they happened to be speaking to us within hours of a major milestone for Know Your IX, the launching of their excellent website.  One issue we conference attendees had been discussing was the importance of conveying clear information to students about victims rights and resources.  Colleges and universities have a knack for putting information on websites that are counterintuititve and difficult to navigate.  It was terrific to see in their website an example of clear and straightforward dissemination of this kind of information.

Another thing I liked was their insistence that when we talk about sexual assault on college campuses, we actually talk about the culture of sexism that creates the environment for it to happen.  Brodsky, who is from Yale, gave the now well-known examples of the sexist fraternity chants ("no means yes...") to illustrate the point that a culture of sexism is the basis for a culture of assault.  Rape prevention, therefore, isn't just a matter of telling girls to use the buddy system and guard their drinks at parties.  It's about addressing---and changing--a culture that allows women to be demeaned and objectified.

Lastly, I appreciated their acknowledgment that Know Your IX is not representative of female student survivors of, and those who are threatened by, sexual assault.  They were keenly aware that the white, straight, and economically privileged public face on the recent efforts to challenge university's failures to address sexual assault runs the risk of rendering invisible sexual assault that affects women of color, queer women, or that occurs on less prestigious campuses. The fact that the Know Your IX website addresses intersectionality head on, with sections on "dealing with intramovement racism" as well as sections for religious survivors and those likely to confront homophobia as survivors, is a good first step towards ensuring Know Your IX becomes a meaningful resource for, and movement of, diverse women.

ATIXA did well to close the conference with the perspective of students whose lives have been affected  by sexual assault and whose activism is changing the landscape of Title IX compliance. I am already looking forward to next year's conference!