Tuesday, December 31, 2013

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.  

Monday, December 30, 2013

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.

Saturday, December 21, 2013

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.

Thursday, December 19, 2013

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.

Tuesday, December 17, 2013

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. 

Friday, December 13, 2013

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.

Thursday, December 12, 2013

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.

Monday, December 09, 2013

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. 

Sunday, December 08, 2013

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."

Saturday, December 07, 2013

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. 

Friday, December 06, 2013

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.)

Thursday, December 05, 2013

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.

Wednesday, December 04, 2013

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.

Monday, December 02, 2013

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).  

Sunday, December 01, 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.