Title IX, sexual assault and high schools

AMENDED: 9/3
While the stories we have heard from college students across the country about sexual assault and sexually hostile climates on their campuses are shocking, these stories are not--unfortunately--limited to college environments.
We have recently heard about a case in Seattle where a rape occurred during an overnight field trip. The girl reported the rape right away and went to the hospital where a rape kit was performed and an advocate confirmed that the victim did exhibit the signs of someone who had been sexually assaulted.
Evidence, however, was not compelling enough to pursue a criminal case against the perpetrator who admitted that the girl had said no to anal penetration and that he had not thought much about her during the act.
But despite the pleas of the parents of the victim--who was never able to return to school and was admitted to a facility for treatment for PTSD--the school did not investigate the incident. When the school did undertake an investigation--6 months later--they found that the girl was not subject to unwanted touching or sexual assault. The assailant was suspended for 10 days right after the assault out of fear for other students' safety. Interestingly, it was not his first suspension for this type of infraction. He had been suspended in middle school for having sex with a girl.
Other problems with the school response to the situation, outside the obvious lack of an immediate investigation and that the parents had to plead with the school to investigate, was that the parents' inquiries to Seattle's Title IX coordinator were never answered. The coordinator always referred the family to the district's lawyers.
The family left the state and went into debt seeking treatment for their daughter. There has been a lot of discussion lately about penalties to schools that fail to create and comply with effective sexual assault policies and procedures. But these discussions have focused on colleges which also face damage to their reputations, something public high schools have less fear of. Colleges do, however, share a similarity with this--and other--cases of assault in high schools: the threat of revoked federal funding just is not effective.
And while that is certainly true of this Seattle case, a lawsuit would seem to go pretty far and the family has been diligent about collecting and presenting a significant amount of evidence already. Sanctions from the government may not be as effective as we would like them to be at this moment, but lawsuits cause considerable distress. K-12 schools have been put on notice for issues of bullying--where there have been significant damage rewards to victims--sexual assault should not be any different.
The parents have started an advocacy group, Stop Sexual Assault in High Schools, in an attempt to garner national awareness of this issue and be a resource for other families and victims.  There is a demonstration Wednesday, September 3 at 4:15 in Seattle. The details can be found at the above linked Facebook page.

High School Basketball Hazing Case May Go to Trial

Last year we posted about a lawsuit filed in federal court in Tennessee, in which the plaintiffs -- three high-school aged sisters and their parents -- sued the Rutherford County Board of Education after being hazed in a sexual manner upon joining the girls' basketball team at Siegel High School.  The girls alleged that they were subjected to an initiation or hazing ritual that the court refers to as "cornholing" -- a practice "whereby a girl on the team would attempt to place her finger up the rectum of another girl by surprise."  Moreover, the plaintiffs claimed that school officials tried to keep the issue quiet and did not meaningfully discipline the player involved because she was the coach's daughter, and that the coach of the team retaliated against the girls for reporting the incident by reducing their playing time and eventually suspending them from the team.  At the time the lawsuit was filed, we noted that the school district's position on the matter was that the cornholing was not sexual in nature. 

Fortunately, a district court disagrees with the school district's absurd suggestion that nonconsensual anal penetration is not sexual in nature.  In denying the school district's motion for summary judgment, the court agreed that a jury could find that the incident satisfied all of the elements for institutional liability for discrimination under Title IX.  First, the court agreed with the plaintiffs that "inserting (or attempting to insert) a finger in another person's rectum or vagina reasonably could be construed as a 'sexual' act that is a severe violation of an individual's body and personal privacy."  The court next determined that the plaintiffs had introduced sufficient evidence for a jury to conclude that school officials had actual notice that the incidents had occurred, since the parents reported the them first to the basketball coach, then to the principal, and then to the Director of Schools. Finally, the court found ample evidence of the school's deliberate indifference, characterizing the school's response as "foot-dragging in violation of school policy, which endured for months and at multiple administrative levels." 

The court makes clear that the school was not on notice of the team's initiation practices prior to the plaintiffs' reports, and thus cannot be liable for damages arising from the cornholing itself.  However, its indifferent response (which included the assistant principle telling the girls to "keep the issue quiet" to avoid giving their high school "a bad name") to the matter once it had been reported subjects the school to potential liability for damages that the girls endured from that point on.  To this end, the court noted that the sisters "faced the prospect of additional harassment or at least the indignity, intimidation, and justifiable discomfort of being forced to play alongside their alleged harasser and under the coach/father who seemed to be protecting her."

Additionally, the court found sufficient evidence in support of the plaintiffs' retaliation claim for that to proceed to trial as well. 

Unless the parties settle first, the case will proceed to trial, and a jury will determine whether the Board of Education is liable and for how much. 

Doe v. Rutherford Cnty., Tenn., Bd. of Educ., 2014 WL 4080163 (M.D. Tenn. Aug. 18, 2014).

Oklahoma colleges handling misbehaving student athletes

Not all of these cases are Title IX specific, but given the cover-ups and repeat offenses that happen when colleges look the other way (see the last incident below) or lightly punish student athletes who commit assault, I felt this update is relevant.
The athletic and college administrators at the University of Oklahoma have announced the suspension of first-year Joe Mixon, a "highly-touted" recruit. Mixon was charged with a misdemeanor after punching a woman in a restaurant, breaking four bones in her face and leaving her unconscious. And OU has decided to suspend him for the season. He had been banned from team activities since right after the incident.
In the wake of the wrist-slapping the NFL gives players who commit assault, it might seem that OU is taking a hard line in this case. But as Deadspin writer Diana Moskovitz notes, this is the same team advocating for the eligibility of Dorial Green-Beckham, former Missouri football player who was dismissed after breaking into his girlfriend's apartment and assaulting someone at that residence. The girlfriend did not press charges because she feared backlash from the Missouri football community. (She must have learned well from FSU.)
OU should tread cautiously given that elsewhere in Oklahoma there is a Title IX issue....
University of Tulsa is facing a Title IX lawsuit from a female student who alleges the university did not do enough in addressing the history of sexual assault allegations by basketball player, Patrick Swilling, Jr. The lawsuit states that the university knew of an incident at Swilling's former school, the College of Southern Idaho and ESPN commentator said it is "shocking that the coach [at Southern Idaho] would pass the buck" on this. This is NOT AT ALL shocking. This underground passing of suspect student athletes happens all the time. What is more shocking--to me--is that the Southern Idaho admitted it handled things poorly. The former president said he felt the school's duty to investigate was mitigated by the fact that local law enforcement conducted an investigation.
Back in Tulsa, though, Swilling was cleared by a university investigation into the sexual assault (there was also a prior sexual assault allegation to campus security by a student who has graduated and does not want to pursue the issue--which was not pursued by the university). This has seemingly cleared Swilling for athletic participation and he is in fact trying to get on the football team and the coach wants him. How this lawsuit (and an Outside the Lines investigation into sexual assault) affects his chances remains up in the air. 

NCAA Reform and Title IX

Last week a federal district court judge ruled in favor of the former college athletes, lead by Ed O'Bannon, who were challenging NCAA rules that prevented them from sharing in the proceeds that their colleges and universities earned by licensing their names and likenesses for commercial purposes like television broadcasts. The court agreed with the athletes that NCAA restrictions on athlete compensation are a form of price fixing that unreasonably restrains trade, and, as such, violate federal antitrust law.  As a result of the court's decision, the NCAA must allow schools to use broadcast proceeds to provide stipends that compensate athletes for the true cost of attendance, which is often more than the cost of tuition, room and board, and books to which athletic scholarships are currently limited.  And it must allow schools to hold some of the money they receive from television broadcasters for using players names and likenesses in a trust fund, to be shared among the players when they graduate. Though these changes will result in only modest compensation for former athletes -- the court specified that the NCAA could restrict payments from the trust fund to ensure that athletes only receive up to $5000 -- the case is still a very big deal.  No longer can the NCAA invoke the concept of amateurism to justify whatever restrictions it would like to place on athlete compensation.

Notably, the O'Bannon plaintiffs came from the sports of men's basketball and football, which are the sports that generate broadcast revenue.  Accordingly, the decision only speaks to athletes in those sports.  Yet, the decision is bound to have an indirect effect on women's sports, as a result of Title IX.  As economist Andrew Schwarz explains, both in Jane McManus's column on espnW, as well as in his own Deadspin column yesterday, Title IX requires schools to allocate scholarship dollars in manner proportionate to the gender ratio of student athletes.  A school that decides to offer male football recruits some additional compensation would  have to ensure that a proportionate dollar amount is allocated to female athletes as well.  Otherwise, they have a compliance problem.  (Or more likely, a worse compliance problem, as many schools already do not provide enough scholarship dollars to female athletes.)

As McManus points out at the end of her column, the effect of the O'Bannon decision on women's sports could be to inject a little more money into women's sports.  But is that really a victory?   To the extent the decisions legitimizes a version of college athletics that operates, as McManus says, "as platform for ticket sales, TV contracts and cash" rather than an "educational tool" is it really a victory for college athletes at all? 

Expanding the movement

Two recent pieces about sexual assault and harassment on college campuses will hopefully open up more dialogue and more changes that offer protections to others in addition to undergraduate students.
Actually, one of the pieces--from Inside Higher Ed--reported on the harassment that takes place when doing fieldwork; so in off-campus situations. The article reports on the recent publication of a survey that asked people involved in off-campus fieldwork about their experiences with sexual harassment in these settings.
The harassment happens between colleagues and also between supervisors and trainees (often graduate students or postdocs). In other words, most often it is between people with different levels of power, though it is not unheard of for harassment to occur, for example, among graduate students or other trainees. The harassment women experienced was more likely to occur with people who were more powerful than them, whereas the harassment men reported was more often peer-to-peer harassment.
There were 666 respondents to the survey, 78 % of whom were women. A majority of respondents (about 75%) had heard of or witnessed sexual harassment in the field. A slightly lower number, 64% said they had experienced it themselves. And 20% reported being victims of sexual assault, which the researchers defined as any unwanted sexual contact, including rape.
Several academic professional societies have responded to the study noting their obvious opposition to harassment in the field. But whether these organizations have policies or make statements is of little consequence since they generally have no authority over the people involved. In other words, schools need to address this issue. Fieldwork is a very different situation and it requires very specific attention. How does one report harassment and assault while in the field? How are protections offered to victims? What are the protocols from removing an assailant from the field?
An additional factor that is specific to this situation is that trainees and lower level colleagues have a lot to lose by reporting assault and harassment. Supervisors can be dissertation committee chairs and members, advisers, tenure committee members, recommendation writers and general notable people in their fields.
This is an issue that also faces graduate students. This was well-noted by Brown graduate student, Sara Matthiesen in this article. Matthiesen has been advocating for specific attention to the issues graduate students face being neither students nor employees. Private institutions, such as Brown, do not have to let graduate students unionize, thus providing even fewer avenues for protections. Matthiesen is asking for greater awareness within departments about resources and training for graduate students about sexual harassment.
Peer to peer harassment can be addressed via student judicial boards, but harassment by supervisors, professors, and others who hold more power than graduate students go through different processes which end in a final decision about, for example, the employment of a faculty member, with the word of one individual (usually president, dean, or provost) even if an entire panel has heard the case and made a recommendation. Victims also do not receive the same level of support in going through a grievance process--no advocate, no office providing support.
But even these practical issues do not entirely address the problem of the academic hierarchy. Matthiesen sums it up well:
Graduate students not only risk their educational opportunities when they take steps to hold advisers and colleagues accountable for sexual violence. No longer able to conduct research in the lab, or obtain letters of recommendation from the leaders in their field, or secure access to faculty research money, they risk losing their current and future livelihoods. No amount of Title IX coordinators or university-wide committees on sexual misconduct can correct for the power imbalance that defines this professional relationship, an asymmetry that is only compounded when universities refuse to acknowledge graduate students’ work lives and goals.
This moment of student activism on the issue of campus sexual assault has been impressive and drawn considerable attention and hopefully will result in positive changes. And though the focus has been on the experiences of undergraduates, it is a good time to realize that sexual harassment and assault happen to other members of a university community both on and off campus. As many schools scramble to correct and clarify their policies and procedures for undergraduate sexual assault, they should also take the moment to broaden their scope.

The latest investigations

Johns Hopkins University and UCLA were added to the list of schools being investigated for handling of sexual assault this week.
That brings the total number of investigations to 80
At JHU, the student-filed complaint states that the student was discouraged from reporting her rape by a dean who noted that no student had ever been expelled for a sexual assault charge. I wonder what they do expel students for...
I have not seen any information about any precipitating events for the UCLA investigation. 

Also, late last month OCR announced that Hampshire College was under investigation. This is an investigation that was not prompted by a complaint, though. The Department of Education, however, does not randomly investigate schools. This suggests that the department received some kind of information whether data or reports that was compelling enough for them to launch an investigation.

The answer to Monday's question is...

...no one.
Well maybe the Department of Defense.
Though I knew that military academies were Title IX-exempt, I believed that, like religious institutions, exemptions were based on the mission of the institution. In other words, when Title IX first passed and military academies were single-sex institutions, the argument was that there was a compelling military interest for keeping them that way.
But exempt for military academies is complete exemption. Go to the websites and try to find a Title IX coordinator. There isn't one.
Go to the Equity in Athletics Data Analysis Cutting Tool and enter the Air Force Academy or Coast Guard Academy to find the breakdown of male-female athletes, spending on sports, revenues, etc. There is nothing.
I do not see a compelling military or national interest for exemptions from all aspects of Title IX.
And when it comes to campus sexual assault, I feel similarly. Though, as I told Inside Higher Ed, it is possible that the military sanctions against sexual assault are even more severe, the lack of transparency and the lack of oversight are problematic at a time when the federal government has committed itself to greater transparency on this issue and asking for funding to increase the number of staff to do investigations. The military's record on sexual assault is abysmal and the cover-ups of both large-scale scandals individual cases inspires little faith that there can be change without more public oversight.

Who will investigate AFA next?

The Air Force Academy announced it was launching an investigation into its athletic department after the local paper, the Colorado Springs Gazette, did its own investigation into the department. The latter revealed sexual assault by athletes, use of date rape drugs, academic allowances to athletes, drinking and drug use.
At the center of controversy is a 2010 party that resulted in 32 students being investigated. Not all were athletes but three athletes, 2 male, 1 female, were expelled.
It does seem like AFA addressed the misbehavior of the students, so I am not completely clear on why the Gazette was looking into this now. My guess is that they were looking to expose a culture of privilege in AFA athletics. Perhaps the party and the punishments were kept quiet. But the school's (somewhat new--2013) superintendent, Lt. Gen. Michelle Johnson, is committed, she says, to addressing these issues and has conveyed that message to coaches who are being asked to look more carefully at the character of recruits.
Johnson is concerned that athletes are more loyal to their teams or other athletes than the school's codes and ideals. Of course the culture of the academy and military in general, I would argue, is about loyalty to one's "brothers and sisters" or immediate peers in the group. I don't find it surprising that the loyalty (to country, to fellow soldiers) that is central to military ideology has resulted in a situation such as this. There are plenty of other military scandals that reveal a culture of secrecy and privilege stemming from this version of loyalty.
The question remains: will this publicity and the multiple investigations lead to an investigation by OCR? Are the academy's Title IX policies and procedures part of the issue here?

Assailant given third chance

Less than a month ago I wrote about the prospect of former Oregon basketball player, Brandon Austin, being recruited by a school--the third of his collegiate career. Austin started at Providence College, was dismissed from that team for sexual assault then went to Oregon where he committed sexual assault again--in the form of a gang rape with other team members--and was again dismissed. Criminal charges were not filed in either case. And now he is going to a junior college in Florida to play ball. As I noted last month he was being wooed by a school in Kansas, but that school opted not to make him an offer.
Northwest Florida State College did. And administrators--unlike those at Oregon who claim ignorance--know of Austin's past. And they think they can help him. Said the head coach: "We have the experience, support and resources to help Brandon get back on track towards graduating and help him be a successful student athlete on and off the court."
We see professional athletes passed around teams after committing various crimes and misdemeanors. And though some of us know that this happens in intercollegiate athletics, there is less visibility. But I argue that there is more liability--for the school that takes on these athletes. Even if athletes such as Austin are not criminally charged, they have been disciplined by their schools (i.e., kicked off or suspended from teams). If the new school knows of that history and that athlete again commits sexual assault what kind of case would a victim have? It probably depends on the measures the school takes when the student arrives on campus. What kind of resources and support will Austin receive in Florida? Individual therapy? Group therapy? How is the school going to specifically address his history of sexual violence against women? Studies show that the many campus sexual assaults are committed by repeat offenders. Austin has already shown himself to be a repeat offender. Unless Northwest Florida intervenes and tries to break this pattern, I think they put themselves in danger of being partially responsible if Austin offends again.