Sexual Assault Litigation Roundup

Universities' response to sexual assault allegations have generated several lawsuits lately. Here is a round-up:

• A female student sued the University of Alabama at Huntsville, alleging that campus police violated Title IX when they discouraged her from pressing charges against a male student -- a hockey player -- who had raped her. (The player has since confessed and left the country for his native Finland.)  She also alleged that the university officials responsible for the campus judicial system violated her rights under Title IX.  After she prevailed in an initial hearing that determined that he was responsible for rape and should be expelled, he appealed this ruling to the associate provost, who allegedly delayed his decision until the end of the hockey season and then downgraded the sanction to a two-month suspension.  

• Two students, a male and female couple, sued the University of Houston to challenge the fact that they were expelled after having been found responsible for sexual misconduct against another female classmate.  That classmate reported that the male of the couple had sexually assaulted her and the female of the couple had caught them on videotape and then left her naked in the hallway of their campus apartment building.  The expelled students claim that their due process rights were violated in the manner in which they were expelled.

• A male student expelled from Occidental College for sexual assault has filed a Title IX complaint with the Department of Education as well as a lawsuit against the college. After a disciplinary proceeding found him responsible on the grounds that she was incapacitated by alcohol to have provided consent, he filed a sexual misconduct charge against her on the grounds that he, too, was intoxicated.  He claims that the college's failure to process his claim demonstrates discrimination on the basis of sex. 

Jury Sides With School District in Basketball Hazing Case

Earlier this month, a federal jury in Tennessee delivered a verdict in favor the Rutherford County Board of Education, which had been sued by the family of three girls who alleged they were harassed and retaliated against when they complained that another member of their high school girls basketball team had poking them in the buttocks (a practice described during the litigation as "goosing" or "cornholing").  In August of this year, we noted that a federal judge had cleared the way for trial by denying the board's motion for summary judgment, a ruling that the plaintiffs could potentially prevail if their evidence was persuasive to a jury.  But after the trial was held this month, the jury was apparently not persuaded that school officials responded inadequately to their reports of the incident, and that they had appropriately disciplined the offending player.  Jurors apparently also believed the school's explanation that the girls had been kicked off the team for missing practice, not in retaliation.   According to the press, one of the plaintiffs six claims did prevail but the jury found damages in the amount of only one dollar.  (The court records are sealed because of the minor status of the plaintiffs, so I could not investigate further as to which claim this may have been.)

Former University of Toledo Softball Coach Files Discrimination Suit

Last week, the former softball coach at the University of Toledo filed a Title IX lawsuit against the institution in federal court, alleging that she was the victim of sex discrimination and retaliation and seeking damages and reinstatement to the position from which she alleges she was forced to resign. The coach, Tarrah Beyster alleges that she advocated for gender equity in her athletic department including by challenging: the disparity in multi-year contracts, which were granted to male coaches, and other gender-based pay inequity; the department's failure to assign a long-term grad assistant to the softball team like it did for the baseball team; preferential treatment for the baseball team in allowing it to keep the revenue from renting out its field; the department's failure to provide the dirt for the field or a new backstop to the softball facility, despite providing both to the baseball team; the department's requirement that the softball team to do its own fundraising to bring the outfield fence into compliance with NCAA regulations; and the singling out of softball to share a locker room with other teams, as well as requiring female coaches to share a locker room with referees and officials.  

Beyster alleges that, after raising these concerns, she endured retaliation in the form of a hostile work environment -- a former associate athletic director called her "Coach Bitch" -- as well as being charged with insubordination at a surprise disciplinary hearing in which she was forced to resign.  She further claims that the "insubordination" charge is pretext for retaliation by alleging that other coaches have engaged in more egregious offenses, like having relationships with their students, without being fired.

Retaliation claims by coaches and administrators are increasingly common in college athletics, especially in the wake of a 2006 Supreme Court decision affirming the statute's application to retaliation, and plaintiffs have successfully obtained verdicts or settlements in a number of them. For examples, see here, here, here, here, here, here, here, here, here, and here.

Department of Education Releases New Clery Act Regulations

Yesterday the Department of Education released new regulations implementing the revisions to the Clery Act imposed by Congress when it reauthorized the Violence Against Women Act last year. The Clery Act requires colleges and universities to report statistics on crime that takes place on campus and in related areas. Specifically, VAWA required that Clery’s existing requirement to include sex offenses like rape and sexual assault in their annual security reports be expanded to include other sex offenses including dating violence, domestic violence, and stalking. VAWA also required that colleges and universities include in their reports information about their policies and procedures for preventing and addressing those offenses when they occur.

The Department of Education’s job in promulgating regulations was to flesh out the details of those requirements, such as by providing definitions of the newly-included sex offenses, as well as the content to be included in the institution’s disclosures about policies and procedures.  The process of creating those regulations began last year when a committee of experts representing a variety of stakeholders convened to help negotiate a draft of these proposed rules.  In June, the Department published the draft and opened it for public comment.  The final rule announced yesterday contains no surprises in the form of major departures from the earlier-published draft.  It does include insight into the agency’s reasoning for rejecting suggestions from commenters that certain changes be made.

Here are some highlights of the new regulations:

It's all about the definitions. Definitions are a big part of the new regulations, which seek to ensure that institutions are reporting on crimes and offenses in a consistent manner.  However, the Department pushed back on suggestions that the regulations provide a uniform definition of consent as it used in the description of sexual assault and other sex offenses. For one reason, an institution’s annual security report must include all offenses that are reported, not only those that result in discipline that turns on a precise finding of the lack of consent.  For another, states use different definitions of consent in their own laws, a fact that could cause confusion and make reporting more burdensome for institutions in those states whose definition differs from whatever definition the Department could have required. I think, in addition, that Title IX enforcement provides some assurances that institutions won't vary too dramatically from suggestions the Department of Education and the White House have already provided (here and here, e.g.) for defining consent as voluntary, revocable, not implied by past relations, and not applicable where the individual is impaired, unconscious, or asleep.

Trans-inclusive Security Reports. The requirement that colleges and universities report statistics on hate crimes has been amended to include crimes motivated by the victim’s gender identity, which should lend visibility and transparency to campus violence targeting transgender and gender-nonconforming people.

Prevention and Intervention Must be Addressed. Colleges and universities must describe their “primary prevention and awareness programs” related to sexual violence, including the institution’s policy prohibiting such conduct, its policies and procedures for dealing with sex offenses that are reported, and its ongoing efforts to promote bystander intervention and prevention. In requiring efforts aimed at "primary" prevention the Department is signaling that it requires institutions to go beyond informing students how to keep themselves safe, but to target and prevent "primary" offending behavior itself.

No Standard of Evidence Requirement.  The regulations’ requirements for the substance of disciplinary procedures that must be included are compatible with the Department of Education’s interpretations of Title IX in that both require institutions to provide symmetrical rights to the victims and accused.  One difference, though, is that the new Clery regulations do not require institutions to use any particular standard of evidence during a disciplinary proceeding (only that they report whatever standard they use).  The Department's analysis makes clear that "A recipient can comply with both Title IX and the Clery Act by using a preponderance of evidence standard."  Still, I regret that the Department has missed an opportunity to elevate the preponderance standard from a requirement imposed by agency guidance (which can easily be revoked by a subsequent presidential administration) to the status of binding regulation that is more difficult to change.  

Attorneys May Serve as Advisors.  Another controversial issue addressed in the Clery regulations regarding the disciplinary process is the role of the advisors to both the victim and the accused.  The regulations require institutions to allow students to be represented in the process by an advisor of their choice, and any restrictions on the advisor's role must apply symmetrically to both parties.  Some commenters argued that the regulations should prohibit attorneys from serving as advisors, in order to prevent the process from becoming judicialized and potentially more complicated, expensive, and unfair to whichever side cannot afford an attorney.  The Department thought those concerns were best addressed by institutions in their decision on whether and to what extent to limit the advisors' role. 

These regulations are effective as of July 1, 2015, but should likely inform institutions existing efforts to comply with the amended Clery Act, which has already gone into effect.

Attorneys Fees Awarded to Prevailing Plaintiffs: An Example from Delaware State

The American judicial system typically requires each party to pay their own way when it comes to attorney fees -- in contrast to, say, the British system that has a "loser pays" approach.  The American system can make it difficult for individual plaintiffs to get justice in some cases. If the plaintiff is seeking large monetary damages, she may be able to make an arrangement to pay an attorney on "contingency" or out of the proceeds of the case. But if the plaintiff is seeking non-monetary relief, such as an injunction, this is not possible, and either she, or a pro bono attorney, would have to bear that cost. 

Fortunately, a statute applicable to civil rights laws litigation permits courts to make exceptions to the "pay your own way" American rule and require defendants to pay for the plaintiff's expenses of hiring an attorney and litigating the case. Sometimes, there are disputes about how much is reasonable to expect the defendant to pay, and those cases end up producing litigation themselves (and thus, get on my radar for possible fodder for blog).  That's what has happened in the Delaware State litigation.  You may recall the litigation challenging the university's decision to discontinue its women's equestrian team.  In approving a consent decree to settle the case on plaintiffs' terms, the court ordered the university to pay the plaintiff's attorneys fees -- not only for the cost of litigating the case, but also for the cost of continuing to monitor the consent decree.  When the plaintiffs lawyers -- which include the nonprofit Women's Law Project -- requested fees for monitoring the consent decree from Delaware State, Delaware State argued that some of the things they had charged for were not reasonable. Recently, the district court rejected Delaware State's argument and ordered it to pay what the plaintiffs had requested -- a total of $77,293.64.  This was on top of the $475,442.21 that Delaware State had to pay the plaintiff's attorneys  back in 2010 to litigate the case in the first place.

The substance of this particular dispute over attorneys fees, as well as the result, is not particularly unusual or noteworthy, but I offer it here as an example of this important aspect of civil rights litigation. The ability to recover attorneys fees to litigate a case makes it possible for plaintiffs and their lawyers to afford the cost of seeking justice.  Moreover, that Delaware State has had to pay over half a million dollars -- in a case that settled even before the lawyers had to litigate motions for summary judgment, a trial, or an appeal, no less! -- also serves as a cautionary tale to erstwhile defendants that even where money damages are not on the line, it doesn't pay to discriminate.

Decision: Foltz v. Delaware State Univ., 2014 WL 4954304 (D. Del. Sept. 30, 2014) (awarding attorneys fees for continued monitoring of consent decree). 

Another California School District Settles Title IX Case Over Harassment and Discrimination of Transgender Student

The Department of Education announced this week that it has entered into a resolution agreement with the Downey Unified School District. The Department had been investigating a complaint filed on behalf of a transgender student who has consistently asserted aspects of her female gender identity since enrolling as a kindergartner in the Downey public schools. The complaint alleged that while she was an elementary student, the student was the subject of discrimination on the basis of gender identity when school officials disciplined her for wearing makeup when other female students were allowed to do so. As part of her punishment, she had to write a letter of apology for making male students uncomfortable. She was also allegedly the victim of  verbal harassment including being called homophobic and sexist slurs by other students on the bus, to which school officials failed to adequately respond. After she fully transitioned to female during her fifth grade year, school officials refused to use her female name.  While some things improved when the student graduated to a middle school that respected the students gender identity, name and pronouns, the student was still subject to peer harassment and the complaint suggested some school-wide measures that were not taken to try foster a more tolerant and inclusive climate.  Based on her experiences in elementary school and middle school, the student wanted assurance going forward that high school administrators and faculty will be responsive to harassment, respectful of her gender identity and expression, and willing to treat her just like any other girl.

The resolution agreement addresses the student's concerns for the future by requiring the school district to "continue to treat the student the same as other female students in all respects in the education programs and activities offered by the District, including access to sex-designated facilities for female students." The district is prohibited from disciplining the student from "appearing in a manner that does not confirm to stereotyped notions of masculinity and femininity" and must remove all past such disciplinary notations from the student's records. Additional measures the school district will have to undertake include hiring a consultant to help the school address the climate issues giving rise to harassment, conducting mandatory training for district administrators to ensure they are responding appropriately to gender non-conformance- and gender-based harassment, and reviewing its policies to ensure that transgender students are provided every opportunity to participate in all programs "in a manner that does not discriminate based on sex, gender identity or gender expression."

Like the Arcadia school district resolution, which was similar, this resolution is an important signal of a school district's obligation under Title IX to protect equal rights of transgender student.  While the requirements that school districts appropriately respond to gender-non-conformance-based harassment is not a new or groundbreaking application of Title IX, other aspects of the resolution are cutting edge. In particular, the requirement to treat transgender student like any other girl with respect to sex-designated facilities is part of an emerging definition of sex discrimination that enhances Title IX's effectiveness to challenge transgender student's exclusion from the bathrooms, locker room, dormitory, or sports team that comports with their gender identity. 

In my inbox: Trans students at women's colleges

It was a trans-centric day for my email inbox.

First I received this petition from change.org asking Smith College to adopt a more trans-inclusive admissions policy. This is somewhat similar to a petition from last year that was protesting the denial of admissions to a transwoman because her FAFSA identified her as male and after she was told by someone from Smith that this would not be an issue.

The change.org petition, created by a group called Smith Q&A, actually includes a recommended admissions policy which they modeled after the one Mills College (in California) recently adopted. It is asking the administration to change its policy requiring female gender markers on transcripts and letters of recommendation for transwomen seeking admission to the college in light of the constraints--legal, emotional, cultural--that transwomen face regarding "official" change of gender or even being out as a transperson.

Interestingly, the recommended admissions policy does not extend its categories for admission as far as the one announced earlier this fall by Smith's Pioneer Valley neighbor, Mt. Holyoke College.

Though the policy created by Smith Q&A does allow for women who transition to men while on campus to remain on campus and enrolled, it does not allow for those men who are seeking admissions after already or in the process of transition.

I suspect that Smith administrators and trustees will be addressing this (publicly) before the end of the academic year given the attention the MHC announcement received (and the comparisons being made to Smith) and because other women's colleges are also grappling with this issue...

One of the other emails I received today was from a student who was pointing me towards this NYT article about transmen at Wellesley. Similar to what is happening at other women's colleges, transmen are becoming a more visible part of the student population with some transitioning while at school and others entering somewhere along their (own personal) transition process. And this visibility has some people quite concerned. If women's colleges are for women, as some point out, what does it mean when students who do not identify as women are entering leadership roles on campus? One student whom the story focused on entered Wellesley knowing he was transmasculine but was not out to his family and checked female on the admissions application. He chose the school because he felt it would be a safe space for him.

This is an issue being raised as part of the discussion. It is not simply about who women's colleges are for? But what are women's colleges for? What is their mission in the 21st century? These are the questions women's colleges should be asking themselves--and many seemingly are doing so already.

And this is an issue that exists in sports as well. Erin and I have explored the role of women's sport spaces and their role in women's community as part of our research. We looked at recreational sports and the history of women's-only rec sports asking similar questions. Who is this for? What purpose does it serve? What changes occur when transmen are included in these spaces?

Interestingly I see parallels in the historical missions of many women's colleges and women's-only sport spaces. They were created as an environment (relatively) free from male influence, to empower women, to provide access to something that had been historically male-dominated. 

I understand why the presence of transmen feels threatening to some of these institutions, but I think more soul-searching needs to be done and more external searching for multiple voices from many constituencies about the meaning and purpose of women's spaces in our culture.  

Comparing Universities' Response to Charges of Sexual Assault -- What a Difference a Year Makes?

Last week, the day after he came off the bench to lead the University of Florida to a 10-9 victory over Tennessee, quarterback Treon Harris was accused of sexually assaulting a female student on campus in the early morning of Sunday, October 5.  The following day, the University announced that campus and local police were working together to investigate forensic evidence, and that it was suspending Harris from the team in the meanwhile. Citing "no tolerance" for sexual assault, University president Bernie Machen vowed that student safety was the institution's top priority.  But last Friday, Harris's accuser withdrew her complaint.  The university reinstated Harris and he is expected to be back on the field this weekend. 

Meanwhile, 150 miles away in Tallahassee, Florida State is struggling to get a handle on its own controversy arising from allegations of its quarterback's sexual assault controversy. This week Fox Sports News reported on evidence seeming to suggest that FSU officials and Tallahassee police worked together to delay turning over the case to the state prosecutor and give a "head start" to the attorney for accused Jameis Winston. Moreover, the university's own public statement released in advance of that report as preemptive damage control may have backfired in that it has provided ammunition to the victim's attorney to point out that the university athletic department's early role in the Winston case was concealed from other branches of the university like its Title IX office.

What do we make of these two Sunshine State examples, in close proximity of time and space, but otherwise worlds apart?  For one thing, I don't think we'll ever know what prompted a student to accuse Harris of sexual assault and then withdraw that complaint. One possibility is that she deliberately filed a false charge against Harris and then later had a change of heart; at the other extreme, it's possible that she' a victim two-times over -- first of sexual assault and then of social pressure to stay silent. Or, maybe she was deterred from standing by her initial accusation after weighing the downside of going forward and having to deal with upheaval that Winston's accuser has faced, against the downside of going without justice. If either of those last two possibilities reflect the truth, this case represents that we still have a ways to go as a society in terms of the support we provide to victims and the respect we give to their privacy. 

Yet by comparing University of Florida to Florida State, we might also come to a tentative conclusion that at least university culture is moving in the right direction in its response to sexual assault and the prioritization of student safety over athletics.  Even though the charge was later withdrawn, and even though we don't know why, what the University of Florida did when it had the charge seems, from what we know, to have been the right thing. Declaring "no tolerance" for sexual assault was not a rush to judgment against Harris but an explanation for the university's prompt response, transparency, and decision to suspend Harris as an appropriate interim measure to protect the students safety. Whatever remains uncertain about Florida State's response to the charges against Winston, it is clear that its response was distinguishable from that of University of Florida under similar circumstances. Maybe we chalk that distinction up to the difference a year makes -- especially a year as big as this past one has been for public attention and legal scrutiny into to the problem of campus sexual assault.

Football season cancelled in NJ

There is no Friday night football game tonight in Sayreville, New Jersey. The school board cancelled the season earlier this month after systemic hazing of first-year football players came to light.

More details are sure to emerge as an investigation into the incidents, which took place in the team locker room, allegedly unbeknownst to coaches or any other school staff person. This is not a Title IX case yet (and it may never turn into one) but some parents have hired lawyers and because the hazing was sexual in nature, the incidents described surely fall under the category of sexual assault.

According to various reports, upperclass players would come into the locker room, turn off the lights, and grab a first-year player and then use a finger or some other object to anally penetrate the player (who was being held down). Sometimes the player was forced to suck on whatever had been put in him.

The outrage over the cancelled season among some members of the community, including students, is especially disappointing. One, it speaks to the idea that football is a right and not a privilege--even when you are a highly successful program (making the playoffs for the past 20 years). Two, it trivializes sexual assault in two ways: when it occurs amongst boys (something recently addressed by the federal government in its new sexual assault laws) and when it occurs under the guise of hazing--a ritual required for admission to a group. And finally, in regards to students, these are young people who may be heading off to college in a few years, where the issue of sexual assault is being taken (more) seriously. So in regards to the female student who said "things have been blown out of proportion.We know the players, and hazing, to them, they didn't mean it in that way. It was more like being friends"--well the idea that talking about and reporting and punishing sexual assault is blowing things out of proportion is a paradigm that is shifting. And non-consensual digital anal penetration is not something that happens between friends. 

Settlement in Seattle sexual assault case

The case of a high school student who was raped during a school field trip has settled out of court. The Seattle Public Schools initially tried to downplay and dismiss the student's story that she was assaulted by a student-athlete on an overnight field trip when she was 15--despite the medical evidence that indicated sexual trauma. The student and her family continued to fight the school system, even when they moved out of state; and the story began to earn nationwide attention even as the school finally began a more substantive investigation. I wrote about the details of the case, the parents' advocacy, and the school's response at the end of the summer so I will not rehash them here.

The school district has agreed to a $700,000 settlement (which still needs to be approved by the school board) even though their investigation has not yet concluded.

Title IX Invoked in Early Efforts to Protect Rights of Female Athletes at Alabama, Berkeley

A couple of Title IX stories about women's college athletics caught my eye this week. Here is a brief roundup.

First, a former women's basketball player at the University of Alabama is using Title IX to challenge the athletic department's allegedly discriminatory manner of allocating scholarships as well as a "fairly broad and comprehensive pattern of bullying, harassment, retaliatory conduct and institutional hazing," according to the attorney representing Daisha Simmons. The details of these allegation are not entirely clear, but the alleged retaliation and harassment are argued to have crystallized in the athletic department's attempt to block Simmons's request to the NCAA for a waiver that would have allowed her to play immediately upon transferring to another institution. It appears from this article that the player's lawyer has filed a complaint with the university, as it is noted that the complaint triggers an internal investigation by the university.  However, if the matter is not resolved internally the player's attorney says the matter would likely "wind up in federal court."

Second, some members of the women's field hockey team at the University of California - Berkeley are considering whether to file a Title IX lawsuit against the institution to challenge its failure to provide them with a field the 2015-16 season. The Bears are already playing without a home facility this season while their field is under construction, and recently found out that the displacement would last into next season as well. As a result of their displacement, the team has to travel to other facilities -- the closest of which are an hour away -- for both competitions and daily practice. All that time spent commuting time cuts into the players' available time to take classes and engage in other aspects of student life. If the players pursue Title IX litigation, I predict that central issue will be whether Berkeley treats other men's teams differently when they are displaced for field construction, such as by doing a better job to minimize the length of displacement and finding better temporary facilities for games and practices. If the players don't have an argument along these lines, however, it is possible that a court would see this situation as one that is unfortunate but that does not constitute sex discrimination.

Catholic Diocese in PA Bans Schools' Participation in Coed Sports

The Harrisburg, Pennsylvania Catholic Diocese has prohibited its schools from participating in coed sports where "substantial and potentially immodest physical contact" could occur. The policy, which also cites "safety" as a motivating concern, not only prohibits area Catholic schools from integrating their wrestling, football, and rugby teams, but also requires their teams for forfeit games or matches against (or against teams that include) opposite-sex opponents.

The policy change, which went into effect this summer, coincides with a federal district court ruling earlier this year that acknowledged a female student's right under the Constitution's Equal Protection Clause to try out for her public middle school's wrestling team. Because the Catholic schools of Harrisburg compete against public schools that would be subject to the ruling, it seems plausible that that the court's decision was at least part of the Diocese's motivation to enact its new policy.

Are there any legal implications of the Diocese's new policy?  After all, Catholic schools, by virtue of being private rather than government-run, are not subject to the Equal Protection Clause. Therefore, despite the fact that courts have repeatedly rejected the generalizations and stereotypes (like safety and modesty) that underlie most decisions to separate girls and boys in sports, such rulings are not binding on private schools like those run by the Diocese. Moreover, while Title IX would apply to any of those private schools should they happen to accept federal funds (such as, for instance, to run a school lunch program), Title IX is strangely permissive of the segregation of contact sports. Therefore, a student who opts in to private, Catholic education has no legal right to try out for teams designated for the other sex. 

But I also think about the rights of students at public schools whose athletic opportunities are limited by virtue of their schools' decision to schedule competition against Catholic schools who are subject to this policy. Public school students, whose rights are protected the Equal Protection Clause, have the right to play on coed teams. And even though Title IX does not require a school to allow coed contact sports, schools that do allow it are prohibited by Title IX from discriminating on the basis of sex against those who make the team. When public schools schedule athletic competition against a school that is required to forfeit, that school's coed team ends up with fewer opportunities for competition compared to the teams that are not coed. Or, the girls on that coed team, who could possibly be benched or volunteer not to play in order to preserve the game, end up with fewer competitive opportunities. Either way, scheduling games against the Catholic schools creates discrimination against those teams that have a female participant (and thus, on the basis of in sex). In the interest of compliance with Title IX and the Equal Protection Clause, public schools ought to leave the Catholic schools off of their competition schedules. The law may not insist that private Catholic schools treat students equally on the basis of sex. But the consequences of a Catholic policy should not be allowed to impair the experience of coed participants at public schools.