The Department of Education released three new documents last week related to Title IX, specifically the role of the Title IX coordinator.
One is a "Dear colleague" letter from Secretary Catherine Lhamon that begins by reminding all schools that they must appoint a Title IX coordinator:
"I write to remind you that all school districts, colleges, and universities that receive federal assistance must designate at least one individual to coordinate their efforts to comply with and carry out their responsibilities under Title IX..."
This set of documents related to the position of Title IX Coordinator is very important, especially the letter to coordinators and a resource guide. But as the "Dear colleague" letter points out, these are not new guidelines. Title IX is in its fourth decade. Why do schools need a reminder that they have to follow it?
Yes, the role of the coordinator has become far more prominent in the past several years given the visibility of campus sexual assault. Yes, it is important for the Department of Education to continue to inform schools and coordinators of their responsibilities as the application of the law shifts, new issues arise, and great accountability is being called for. Part of the reason, however, for the increased visibility of the Title IX coordinator is because when students started demanding a response from administrators to campus sexual assault very few people knew who the Title IX coordinator was--sometimes this included the Title IX coordinator because the duties of Title IX compliance were wrapped up in another administrator's position. This is no longer a desirable practice. As the "dear colleague" letter notes, the coordinator is supposed to answer directly to the president and be "independent." Also, Lhamon suggests that larger schools might consider having more than one coordinator to both handle all the issues that arise and to make the position more visible to more of the school community.
Again, guidance is good. My frustration lies in the fact that this is not a new requirement. I cannot help but think that maybe there wouldn't be 100+ schools under investigation if schools had taken their responsibility regarding oversight more seriously. I watched The Hunting Ground last weekend (which I will write about this week hopefully) and was fully confronted by the ineptitude and ignorance of so many administrators. There is no excuse. There is a law. Follow it.
Wednesday, April 29, 2015
Tuesday, April 28, 2015
Court Dismisses Title IX Case of Student Suspended For Sexual Assault
Last Friday I blogged about a Title IX case filed against Columbia University by a student who prevailed in a disciplinary hearing for sexual assault but was subsequently and allegedly harassed as a result of his accuser's public protest. But Columbia University was also in the news last week because a federal court recently dismissed a case that had been filed by a student alleging that the university's disciplinary process under which he was suspended for sexual assault was biased against him in violation of Title IX.
Like other similar plaintiffs, the "John Doe" plaintiff in this case attempted to raise both of the arguments courts have recognized as plausible applications of Title IX to disciplinary outcomes: arguments of erroneous outcome and selective enforcement. To be successful, both arguments must be accompanied by allegations that could support a conclusion that the university intentionally discriminated against the plaintiff on the basis of sex.
In support of his erroneous outcome claim, Doe alleged that university officials committed errors during the investigation and hearing process that prevented him from demonstrating his innocence to the hearing panel that found him responsible for assault. Specifically, Doe focused on the actions of Title IX Investigator, whom Doe claimed did not adequately investigate the details of the night the sexual encounter occurred, and who presented a report that left out his version of the story. The court was, at the outset, skeptical that the procedural deficiencies Doe alleged prevented him from demonstrating his innocence, noting that the hearing board found that Doe had exerted "unreasonable pressure for sexual activity...over a period of weeks" that rendered ineffective any consent that the victim could have provided on the night in question. As a result, the court concluded, even if the investigator had been deficient in her investigation or presentation of the facts about that night, they would not have made a difference to the outcome. More importantly, the court found lacking any specific allegation in support of Doe's theory that the investigator was motivated by gender bias, claiming only that she had "worked for a women's resource center in the past," a flimsy basis for inferring bias. Nor could the court give credence to any of the other of Doe's conclusory declarations of bias, because they were not supported by any allegations of fact.
The court also rejected Doe's selective enforcement claim, i.e., that aside from the matter of his alleged innocence, Columbia punished Doe more severely because of his sex. Yet in this case, Doe did not allege that Columbia intentionally punished men more severely, or failed to adequately examine their innocence, because they are men. At most, the court reasoned, Doe alleged that Columbia's disciplinary process is unfair to those accused of sexual assault, but since this category could include men or women, it does not support the conclusion that Columbia intentionally discriminates against men on the basis of sex. And while Doe may argue that men are more likely than women to be accused of sexual assault, and thus more likely to be burdened by the alleged deficiencies in Columbia's process, this theory is not actionable under Title IX, according to the court, because of a 2001 Supreme Court decision foreclosing disparate impact lawsuits under Title VI -- the race discrimination statute on which Title IX was modeled. As a result, it is not enough for plaintiffs to claim that a university's sex-neutral policies or practice impacts one sex more than the other.
As demonstrated by this and other similar decisions cited by the court here, colleges and universities do not necessarily commit sex discrimination just because they discipline male students for sexual assault. In contrast, however, when colleges and universities discipline students in actual violation of their own procedures, those cases can be successfully litigated without the lens of sex discrimination under breach of contract and negligence theories, see, for example, this case. Yet, breach of contract and negligence claims don't support the "reverse discrimination" narrative that some may wish to advance by using Title IX to challenge what Title IX has wrought. It may be that plaintiffs continue to advance the Title IX theory because if they could establish that universities are routinely* liable under Title IX for disciplining students for sexual assault, it would create the impression that Title IX is inherently contradictory, unworkable, and its application to sexual assault should be repealed. If that is the strategy, however, it does not seem to be working so far.
* I say routinely to account for the unusual case (e.g., this case, and possibly this case) where the plaintiff has a factual basis for alleging that the university used him as a "scapegoat" in a misguided effort to demonstrate compliance with an OCR resolution agreement. When that is the situation, Title IX should provide a remedy. However, when a university gets in trouble for going beyond what Title IX requires, it reflects negatively on the university not on Title IX.
Doe v. Columbia University, 2015 WL 1840402 (Apr. 21, 2015).
Like other similar plaintiffs, the "John Doe" plaintiff in this case attempted to raise both of the arguments courts have recognized as plausible applications of Title IX to disciplinary outcomes: arguments of erroneous outcome and selective enforcement. To be successful, both arguments must be accompanied by allegations that could support a conclusion that the university intentionally discriminated against the plaintiff on the basis of sex.
In support of his erroneous outcome claim, Doe alleged that university officials committed errors during the investigation and hearing process that prevented him from demonstrating his innocence to the hearing panel that found him responsible for assault. Specifically, Doe focused on the actions of Title IX Investigator, whom Doe claimed did not adequately investigate the details of the night the sexual encounter occurred, and who presented a report that left out his version of the story. The court was, at the outset, skeptical that the procedural deficiencies Doe alleged prevented him from demonstrating his innocence, noting that the hearing board found that Doe had exerted "unreasonable pressure for sexual activity...over a period of weeks" that rendered ineffective any consent that the victim could have provided on the night in question. As a result, the court concluded, even if the investigator had been deficient in her investigation or presentation of the facts about that night, they would not have made a difference to the outcome. More importantly, the court found lacking any specific allegation in support of Doe's theory that the investigator was motivated by gender bias, claiming only that she had "worked for a women's resource center in the past," a flimsy basis for inferring bias. Nor could the court give credence to any of the other of Doe's conclusory declarations of bias, because they were not supported by any allegations of fact.
The court also rejected Doe's selective enforcement claim, i.e., that aside from the matter of his alleged innocence, Columbia punished Doe more severely because of his sex. Yet in this case, Doe did not allege that Columbia intentionally punished men more severely, or failed to adequately examine their innocence, because they are men. At most, the court reasoned, Doe alleged that Columbia's disciplinary process is unfair to those accused of sexual assault, but since this category could include men or women, it does not support the conclusion that Columbia intentionally discriminates against men on the basis of sex. And while Doe may argue that men are more likely than women to be accused of sexual assault, and thus more likely to be burdened by the alleged deficiencies in Columbia's process, this theory is not actionable under Title IX, according to the court, because of a 2001 Supreme Court decision foreclosing disparate impact lawsuits under Title VI -- the race discrimination statute on which Title IX was modeled. As a result, it is not enough for plaintiffs to claim that a university's sex-neutral policies or practice impacts one sex more than the other.
As demonstrated by this and other similar decisions cited by the court here, colleges and universities do not necessarily commit sex discrimination just because they discipline male students for sexual assault. In contrast, however, when colleges and universities discipline students in actual violation of their own procedures, those cases can be successfully litigated without the lens of sex discrimination under breach of contract and negligence theories, see, for example, this case. Yet, breach of contract and negligence claims don't support the "reverse discrimination" narrative that some may wish to advance by using Title IX to challenge what Title IX has wrought. It may be that plaintiffs continue to advance the Title IX theory because if they could establish that universities are routinely* liable under Title IX for disciplining students for sexual assault, it would create the impression that Title IX is inherently contradictory, unworkable, and its application to sexual assault should be repealed. If that is the strategy, however, it does not seem to be working so far.
* I say routinely to account for the unusual case (e.g., this case, and possibly this case) where the plaintiff has a factual basis for alleging that the university used him as a "scapegoat" in a misguided effort to demonstrate compliance with an OCR resolution agreement. When that is the situation, Title IX should provide a remedy. However, when a university gets in trouble for going beyond what Title IX requires, it reflects negatively on the university not on Title IX.
Doe v. Columbia University, 2015 WL 1840402 (Apr. 21, 2015).
Friday, April 24, 2015
Student Accused of Sexual Assault Sues Columbia
Yesterday, Columbia University student Paul Nungesser sued the institution, alleging that it is liable for harassment that he experienced in the wake of a fellow student's accusations that he sexually assaulted her. The university did not find Nungesser responsible for any assault, and his accuser, Emma Sulkowicz, has been protesting this outcome by carrying a mattress with her around campus, a protest that is doubling as performance art project for credit in her art class.
The protest has apparently made Nungesser's life difficult. He alleges that it has caused him to experience "verbal aggression, intimidation, and hostility" for which he seeks to hold Columbia liable for unspecified money damages. His primary claim is under Title IX, which means that his case will have to satisfy the following elements required for institutional liability for harassment: (1) that the harassment is severe or pervasive; (2) that the harassment is because of sex; that Columbia officials had notice of the harassment; and (4) that they responded with deliberate indifference. I think all four of these elements will be challenging for him to satisfy, based on the allegations in the complaint. First, though he describes the harassment as "severe" and "pervasive," he does not give very many specific examples beyond a couple of Facebook comments posted by friends of Sulkowicz who are not alleged to be students at Columbia. Verbal harassment must be really pervasive to be actionable, and the court is going to require that he show examples to satisfy this requirement.
Second, there is no allegation that he reported this harassment to Columbia University officials, nor that they responded with deliberative indifference. Finally, he does not explain in the complaint why the harassment targets him because of his male sex, as opposed to because people apparently believed he had gotten away with committing sexual assault. It is possible that harassers would have assaulted a female they perceived to have gotten away with sexual assault or other comparable violence in a similar way.
Suprisingly, he does not include a defamation claim against Columbia or Sulkowicz, even though what seems to be at the crux of Nungesser's lawsuit is the fact that Sulkowicz's protest is making people believe he committed sexual assault. Why doesn't he sue her for defamation, and try to get an injunction against the protest? After all, she would have no special defense arising from the artistic nature of her protest. If he indeed states falsely that he assaulted her and his reputation is damaged as a result, he should be able to prevail as long as he can prove that her claim is false. Interestingly, the litigation strategy he has chosen avoids having to do just that.
The protest has apparently made Nungesser's life difficult. He alleges that it has caused him to experience "verbal aggression, intimidation, and hostility" for which he seeks to hold Columbia liable for unspecified money damages. His primary claim is under Title IX, which means that his case will have to satisfy the following elements required for institutional liability for harassment: (1) that the harassment is severe or pervasive; (2) that the harassment is because of sex; that Columbia officials had notice of the harassment; and (4) that they responded with deliberate indifference. I think all four of these elements will be challenging for him to satisfy, based on the allegations in the complaint. First, though he describes the harassment as "severe" and "pervasive," he does not give very many specific examples beyond a couple of Facebook comments posted by friends of Sulkowicz who are not alleged to be students at Columbia. Verbal harassment must be really pervasive to be actionable, and the court is going to require that he show examples to satisfy this requirement.
Second, there is no allegation that he reported this harassment to Columbia University officials, nor that they responded with deliberative indifference. Finally, he does not explain in the complaint why the harassment targets him because of his male sex, as opposed to because people apparently believed he had gotten away with committing sexual assault. It is possible that harassers would have assaulted a female they perceived to have gotten away with sexual assault or other comparable violence in a similar way.
Suprisingly, he does not include a defamation claim against Columbia or Sulkowicz, even though what seems to be at the crux of Nungesser's lawsuit is the fact that Sulkowicz's protest is making people believe he committed sexual assault. Why doesn't he sue her for defamation, and try to get an injunction against the protest? After all, she would have no special defense arising from the artistic nature of her protest. If he indeed states falsely that he assaulted her and his reputation is damaged as a result, he should be able to prevail as long as he can prove that her claim is false. Interestingly, the litigation strategy he has chosen avoids having to do just that.
OCR Issues Guidance on Title IX Coordinators
Today the Department of Education's Office for Civil Rights issued guidance reminding educational institutions of their obligation to designate a Title IX Coordinator. This has been a requirement since the initial Title IX regulations promulgated in 1975, but far too often we read about institutions lacking in this critical area of compliance. Lately, though, it seems like the Title IX Coordinator obligation is sinking in, as colleges and universities in particular are trying to catch up with their obligations to address sexual assault on their campuses. As a result, whereas at one time most schools who had a Title IX Coordinator considered it the role of someone in athletics, the position is more likely to be properly regarded as one with campus-wide duties and is often assigned to someone who otherwise works in human resources, student affairs, or increasingly, a stand-alone full-time position.
OCR's guidance consists of a Dear Colleague Letter that lays out various requirements and considerations regarding Title IX Coordinator, such as the requirement that they be independent and not engage in conflicts of interest, that they have the authority and support to carry out measures necessary to ensure the institution's compliance with Title IX, that they be visible and easy to find, and that they be trained.
The guidance also contains a resource guide that provides an overview of an institution's compliance obligations under Title IX, and points the Title IX Coordinator (and other readers) to additional sources of information on those obligations.
OCR's guidance consists of a Dear Colleague Letter that lays out various requirements and considerations regarding Title IX Coordinator, such as the requirement that they be independent and not engage in conflicts of interest, that they have the authority and support to carry out measures necessary to ensure the institution's compliance with Title IX, that they be visible and easy to find, and that they be trained.
The guidance also contains a resource guide that provides an overview of an institution's compliance obligations under Title IX, and points the Title IX Coordinator (and other readers) to additional sources of information on those obligations.
Wednesday, April 22, 2015
Should Western Kentucky's Women's Swim Team Have Been Suspended?
Last week Western Kentucky University announced the suspension of its swimming and diving program for five year after a Title IX investigation revealed widespread incidents of hazing, harassment, and sexual assault. The investigation was reportedly prompted by a police report filed by one of the swim team members, alleging numerous examples of criminal and otherwise reprehensible conduct. For example, the complainant reported that another of his male teammates sexually assaulted a female teammate who was unconscious, while others watched. He also reported that one of his male teammates had once placed in a chokehold for as long as he could stand it, causing him injury. When the police searched the house where swim team members lived and held parties, they found photographs of teammates who had passed out from drinking, arranged in nude or semi-nude sexual positions and, in some cases, having been written on with racist and homophobic language.
As I told a columnist for the local paper in Louisville, I am glad to see universities taking seriously the problems of hazing and sexual assault. Suspension is a reasonable response to pervasive and intractable climate of hostility, aggression, and assault like the one revealed at WKU. However, one angle on this case that no one seems to be publicly discussing -- and that I myself was slow to realize -- is that all of the examples of misconduct appear to involve male swimmers, yet the university has suspended the entire program, men's and women's alike. This raises Title IX concerns under the principal of equal treatment that is codified in the regulations. Female athletes' participation is impaired -- by virtue of being held accountable for other athletes' misconduct -- in a way that no male athletes' participation is impaired.
It may have been the case that in the course of responding to a serious problem with necessarily promptness, university officials did not consider the discriminatory effect on female swimmers. Perhaps in retrospect they can reexamine the decision to suspend the female swimmers and, if warranted, reinstate their athletic opportunities.
As I told a columnist for the local paper in Louisville, I am glad to see universities taking seriously the problems of hazing and sexual assault. Suspension is a reasonable response to pervasive and intractable climate of hostility, aggression, and assault like the one revealed at WKU. However, one angle on this case that no one seems to be publicly discussing -- and that I myself was slow to realize -- is that all of the examples of misconduct appear to involve male swimmers, yet the university has suspended the entire program, men's and women's alike. This raises Title IX concerns under the principal of equal treatment that is codified in the regulations. Female athletes' participation is impaired -- by virtue of being held accountable for other athletes' misconduct -- in a way that no male athletes' participation is impaired.
It may have been the case that in the course of responding to a serious problem with necessarily promptness, university officials did not consider the discriminatory effect on female swimmers. Perhaps in retrospect they can reexamine the decision to suspend the female swimmers and, if warranted, reinstate their athletic opportunities.
Tuesday, April 21, 2015
Court Dismisses Title IX Count Against Pepperdine
In December, we blogged about a lawsuit filed against Pepperdine University by two college basketball players who allege they were harassed and mistreated by their by their coach and other university officials because they are lesbians. Last week, a federal court in California narrowed the scope of their lawsuit by dismissing their Title IX claim, along with some of their right to privacy claim. (The court refused to dismiss the plaintiffs' claims under California state law, which prohibits sexual orientation discrimination by educational institutions that accept state funding.)
The court dismissed the plaintiffs' Title IX claim because it alleged discrimination on the basis of their sexual orientation, specifically, the coach's concern that they were dating each other, which is not prohibited under Title IX. Yet, the court acknowledged that that sex discrimination includes targeting people who do not comply with stereotypes associated with their sex, and granted the plaintiffs leave to amend their complaint to add allegations to support that as the basis for the discrimination they experienced at Pepperdine.
As I noted in my earlier post, I was rooting for this case to push the courts to adopt a broader version of the sex-stereotype theory, one that accepts same-sex orientation as the type of gender nonconformity protected under sex discrimination bans. So far, gay and lesbian plaintiffs have only succeeded in challenging discrimination due to some visible gender nonconformity, such as in one's appearance or mannerisms, although the EEOC has adopted the broader interpretation. I wonder if the plaintiffs will add allegations of discrimination due to gender nonconforming appearance to their complaint, and/or take the opportunity for future litigation on its amended complaint to urge the court to accept discrimination motivated by the fact that they were women dating each other as a form of gender nonconformity discrimination actionable under Title IX.
Videckis v. Pepperdine University, 2015 WL 1735191 (C.D. Cal. Apr. 15, 2015).
The court dismissed the plaintiffs' Title IX claim because it alleged discrimination on the basis of their sexual orientation, specifically, the coach's concern that they were dating each other, which is not prohibited under Title IX. Yet, the court acknowledged that that sex discrimination includes targeting people who do not comply with stereotypes associated with their sex, and granted the plaintiffs leave to amend their complaint to add allegations to support that as the basis for the discrimination they experienced at Pepperdine.
As I noted in my earlier post, I was rooting for this case to push the courts to adopt a broader version of the sex-stereotype theory, one that accepts same-sex orientation as the type of gender nonconformity protected under sex discrimination bans. So far, gay and lesbian plaintiffs have only succeeded in challenging discrimination due to some visible gender nonconformity, such as in one's appearance or mannerisms, although the EEOC has adopted the broader interpretation. I wonder if the plaintiffs will add allegations of discrimination due to gender nonconforming appearance to their complaint, and/or take the opportunity for future litigation on its amended complaint to urge the court to accept discrimination motivated by the fact that they were women dating each other as a form of gender nonconformity discrimination actionable under Title IX.
Videckis v. Pepperdine University, 2015 WL 1735191 (C.D. Cal. Apr. 15, 2015).
Monday, April 20, 2015
Utica College Selective Deploys Title IX Excuse
The student newspaper at Utica College apparently has a tradition of publishing a satirical issue on April Fools Day. This year's issue featured some off-color humor including, as described in this article, a "sexually explicit bingo game featuring derogatory
remarks toward women," and a "photo depicting a
woman with a beard as the school’s most eligible bachelorette."
I know, yuck. But when I heard that the college president censored the issue because of concern for "Title IX litigation" I have to say, it sounded to me like another case of using the statute as an excuse to justify an unpopular decision. To bring a Title IX lawsuit, a plaintiff has to challenge harassment that is so "severe or pervasive" that it interferes with the plaintiff's ability to get an education. Two offensive pages in the student newspaper are nowhere close to that standard. I have no opinion on whether the paper should have been censored, but I object to the "Title IX made us do it" excuse, which already gets plenty of play when college athletic departments cut men's teams. Title IX does not micromanage institution's decisions in that context, and it does not micromanage their reactions to the student paper either. Censor or don't censor, but don't misrepresent the scope of Title IX as enabling a lawsuit over everything that causes offense. The statute has enough haters already.
Moreover, it appears that Utica's concern over Title IX litigation is limited to the student paper. At a school where women make up over 56% of the student body, only 39% of athletic opportunities are in women's sports. That's a 17 percentage point disparity and among the most egregious I've seen in present day. If Utica College is really so litigation risk adverse, perhaps in addition to censoring the paper, it also ought to add a couple more women's teams.
I know, yuck. But when I heard that the college president censored the issue because of concern for "Title IX litigation" I have to say, it sounded to me like another case of using the statute as an excuse to justify an unpopular decision. To bring a Title IX lawsuit, a plaintiff has to challenge harassment that is so "severe or pervasive" that it interferes with the plaintiff's ability to get an education. Two offensive pages in the student newspaper are nowhere close to that standard. I have no opinion on whether the paper should have been censored, but I object to the "Title IX made us do it" excuse, which already gets plenty of play when college athletic departments cut men's teams. Title IX does not micromanage institution's decisions in that context, and it does not micromanage their reactions to the student paper either. Censor or don't censor, but don't misrepresent the scope of Title IX as enabling a lawsuit over everything that causes offense. The statute has enough haters already.
Moreover, it appears that Utica's concern over Title IX litigation is limited to the student paper. At a school where women make up over 56% of the student body, only 39% of athletic opportunities are in women's sports. That's a 17 percentage point disparity and among the most egregious I've seen in present day. If Utica College is really so litigation risk adverse, perhaps in addition to censoring the paper, it also ought to add a couple more women's teams.
Wednesday, April 15, 2015
Another female coach terminated: University of Delaware
In the wake of similar stories out of Duluth, Iowa, and Tufts, we note that another female coach has been terminated this year, this time by the University of Delaware.
Softball coach Jaime Wohlbach was reportedly fired abruptly on Monday afternoon, in the middle of her season. According to Wolhbach, she was told at the time that she "ran a hostile environment" for her players, which she disputes and points out that she had not received any indication from her supervisor that players had complained or were unhappy.
Considering public comments Wohlbach has since made, it appears that an alternative possible explanation for her termination is that it is the culmination of an ongoing conflict with her supervisor, associate athletic director Joe Shirley, whom Wolhbach accuses of micromanaging her team and giving her an unwarranted poor performance evaluation. Given that Wohlbach apparently reported him to human resources for "bullying," it seems possible that her termination is retaliation for her complaint.
It remains to be seen whether Wohlbach will take any legal action invoking Title IX. It is certainly possible that the "bullying" she complained of targeted her because she is a woman and/or because she coaches a woman's team. Additionally, if the university had actually received complaints about the coach's "hostility" towards her players, the fact that its response to those complaints was to immediately terminate the coach could reflect a sexist double standard, if it is the case that Delaware would have permit male coaches with more leeway in that situation, such as an opportunity to address or explain the complaints.
The Title IX angle is speculation on my part. But since we have seen other examples of similar bias against women coaches, including the very recent examples noted above, it is not far fetched to consider the possibility of sexism underlying this case as well.
Softball coach Jaime Wohlbach was reportedly fired abruptly on Monday afternoon, in the middle of her season. According to Wolhbach, she was told at the time that she "ran a hostile environment" for her players, which she disputes and points out that she had not received any indication from her supervisor that players had complained or were unhappy.
Considering public comments Wohlbach has since made, it appears that an alternative possible explanation for her termination is that it is the culmination of an ongoing conflict with her supervisor, associate athletic director Joe Shirley, whom Wolhbach accuses of micromanaging her team and giving her an unwarranted poor performance evaluation. Given that Wohlbach apparently reported him to human resources for "bullying," it seems possible that her termination is retaliation for her complaint.
It remains to be seen whether Wohlbach will take any legal action invoking Title IX. It is certainly possible that the "bullying" she complained of targeted her because she is a woman and/or because she coaches a woman's team. Additionally, if the university had actually received complaints about the coach's "hostility" towards her players, the fact that its response to those complaints was to immediately terminate the coach could reflect a sexist double standard, if it is the case that Delaware would have permit male coaches with more leeway in that situation, such as an opportunity to address or explain the complaints.
The Title IX angle is speculation on my part. But since we have seen other examples of similar bias against women coaches, including the very recent examples noted above, it is not far fetched to consider the possibility of sexism underlying this case as well.
Wednesday, April 08, 2015
Prom season discrimination
I know we do this every year, but this is another post about discrimination against gender non-conforming students. It always happens somewhere in the United States during prom/yearbook season.
The latest incident--out of Louisiana--is nothing unique (unfortunately). A gay high school student wanted to go to her prom wearing a tuxedo. According to a student contract, girls (regardless of sexual orientation) must wear dresses to the prom. She had heard that teachers would refuse to chaperone the event if a girl arrived wearing a tuxedo.
The good news, and maybe what makes this story somewhat different from others, is the quick reversal of the school policy. Schools administrators, including the principal who told the student's mother "Girls wear dresses and boys wear tuxes, and that's the way it is," came under pressure from the National Center for Lesbian Rights.
So, yay--I guess. But the reason I keep writing these things is that they keep happening. We have been focused on bathrooms lately and of course there are ongoing issues about gender identity and sports participation as well. Though I do not want to create an issues hierarchy or suggest that bathrooms and sports are more sensitive/less palatable topics for many in America than prom attire, I do think that the policing of gender via high school fashion is something people just need to let go of. A lot of today's fashion is a throwback to the 80s--the era of androgyny. (And if we were not in 80s redux, this policy would still not be acceptable.) Raising healthy children and keeping them safe is not about monitoring where they pee and what they wear to prom. But there will be another incident like this next year, maybe even this year; prom season is far from over. I hope stories like this in which the backlash against administrators was strong and quick are serving as a deterrent.
On a different, non-Title IX note, this dress code in Monroe, Louisiana (available at the first link), in addition to being discriminatory against LGBT individuals is also pretty classist. The mandate for tuxedos and gowns and no athletic shoes is certainly a financial burden for some students. It is less likely that these students will come forward because of shame around their economic situation and because we find it very difficult to recognize class discrimination in a country that presents itself as a meritocracy.
The latest incident--out of Louisiana--is nothing unique (unfortunately). A gay high school student wanted to go to her prom wearing a tuxedo. According to a student contract, girls (regardless of sexual orientation) must wear dresses to the prom. She had heard that teachers would refuse to chaperone the event if a girl arrived wearing a tuxedo.
The good news, and maybe what makes this story somewhat different from others, is the quick reversal of the school policy. Schools administrators, including the principal who told the student's mother "Girls wear dresses and boys wear tuxes, and that's the way it is," came under pressure from the National Center for Lesbian Rights.
So, yay--I guess. But the reason I keep writing these things is that they keep happening. We have been focused on bathrooms lately and of course there are ongoing issues about gender identity and sports participation as well. Though I do not want to create an issues hierarchy or suggest that bathrooms and sports are more sensitive/less palatable topics for many in America than prom attire, I do think that the policing of gender via high school fashion is something people just need to let go of. A lot of today's fashion is a throwback to the 80s--the era of androgyny. (And if we were not in 80s redux, this policy would still not be acceptable.) Raising healthy children and keeping them safe is not about monitoring where they pee and what they wear to prom. But there will be another incident like this next year, maybe even this year; prom season is far from over. I hope stories like this in which the backlash against administrators was strong and quick are serving as a deterrent.
On a different, non-Title IX note, this dress code in Monroe, Louisiana (available at the first link), in addition to being discriminatory against LGBT individuals is also pretty classist. The mandate for tuxedos and gowns and no athletic shoes is certainly a financial burden for some students. It is less likely that these students will come forward because of shame around their economic situation and because we find it very difficult to recognize class discrimination in a country that presents itself as a meritocracy.
Monday, April 06, 2015
Court Dismisses Expelled Student's Case Against Vassar
Last week a federal court in New York ruled in favor of Vassar College, granting its motion for summary judgment on discrimination and other claims filed by a male student who had been expelled for sexual assault. The plaintiff, Peter Yu, and the female student who accused him had provided a university disciplinary committee with vastly different accounts of the encounter at the heart of this case; he claims he asked her if she wanted to have sex and she agreed, while she claims that she did not agree and was "helpless" to resist his advances. They also had different interpretations of the messages she sent to him later, in which she apologized for leading him on and offered to "stand up" for him should get in to any trouble over the fact that someone in his dorm called security (because they thought he was "potentially hurting somebody."). His position is that the messages verify his version of the events, while she claims she sent them in a state of "denial," "shock" and "disbelief." Based on this evidence -- along with the statements of witnesses who testified to the female student's intoxicated state and that they were concerned for her when they saw her leave with him -- the committee found Yu responsible and the college expelled him in March of 2013. He sued the university three months later. (We blogged about his complaint at the time.)
Yu's primary claim against Vassar is that the college's decision to expel him violates Title IX. His argument to this end incorporated two alternative theories that have been accepted by earlier precedent (coincidentally, also involving Vassar College) in cases challenging university discipline: erroneous outcome and selective enforcement. First, Yu claimed that gender bias created a flawed process leading to an erroneous outcome. To this end, Yu made numerous allegations of procedural flaws. For example, he argued that he was not given enough time to consult with his lawyer prior to the hearing, that he had insufficient opportunity to conduct a cross-examination of witnesses, and that there bias on the part of the disciplinary committee arising from the fact that the complainant's father is on the faculty. The court rejected these and other procedural challenges as being either without factual basis or support in law.
Moreover, even if Yu had established a procedural flaw, the court determined that he presented no evidence that gender bias caused the error. For example, the court noted, he did not provide any statements by committee members expressing any sort of discriminatory intent, nor did he "provide any statistical evidence that 'males invariably lose' when charged with sexual misconduct at Vassar." Instead, Yu argues that only bias could explain why the committee did not read the complainant's post-incident messages as evidence of his innocence. But the court rejected this inference of institutional bias, noting that the committee was free to credit the complainant's explanation for the messages, and to weigh the messages against other inculpatory evidence, such as the testimony provided by the other witnesses who were concerned about the complainant.
Yu also argued that Vassar's policies are biased because, on the one hand, students who are incapacitated by alcohol cannot be said to have consented to sex, while on the other hand, accused students are held responsible for recognizing that, even when they are themselves intoxicated. Yet, while the court acknowledged that the policy may well reflects a "double standard" it is a double standard that benefits complainants over respondents, not women over men. Vassar's policy is written in a gender-neutral manner and does not assign the role of complainant and respondent based on sex. Moreover, the court recognized that Vassar's own sexual assault response training emphasizes that sexual assault complaints could be filed by men or women, against men or women.
Yu's second Title IX argument of selective enforcement fared no better than his erroneous outcome argument. He could not establish that men were treated more harshly than women because Vassar has never had to respond to a sexual assault allegation against a female student. Moreover, Vassar provided examples of cases in which male students accused of sexual assault were not expelled.
As this case and others demonstrate, plaintiffs challenging university discipline for sexual assault have a difficult time prevailing under Title IX, as there is often very little evidence of gender bias for them to point to. Yet this does not mean universities are free to throw the book at all those accused of sexual assault in order to avoid charges of under-enforcement of Title IX standards (as some Title IX critics may believe). Other avenues remain available to plaintiffs seeking to challenge university discipline, including due process (which only apply against state schools), breach of contract (on the theory that the code of conduct, including its disciplinary procedures, are a contract between the university and the student), and (perhaps) negligence or other torts. In this case, Yu did not prevail on his breach of contract claim because the court had determined that Vassar had not violated its own procedures. But, while not applicable here, that cause of action remains available to protect students in the event a university fails to deliver promised procedural rights to students accused of wrongdoing.
Decision: Xiaolu Peter Yu v. Vassar Coll., 2015 WL 1499408 (S.D.N.Y. Mar. 31, 2015).
Yu's primary claim against Vassar is that the college's decision to expel him violates Title IX. His argument to this end incorporated two alternative theories that have been accepted by earlier precedent (coincidentally, also involving Vassar College) in cases challenging university discipline: erroneous outcome and selective enforcement. First, Yu claimed that gender bias created a flawed process leading to an erroneous outcome. To this end, Yu made numerous allegations of procedural flaws. For example, he argued that he was not given enough time to consult with his lawyer prior to the hearing, that he had insufficient opportunity to conduct a cross-examination of witnesses, and that there bias on the part of the disciplinary committee arising from the fact that the complainant's father is on the faculty. The court rejected these and other procedural challenges as being either without factual basis or support in law.
Moreover, even if Yu had established a procedural flaw, the court determined that he presented no evidence that gender bias caused the error. For example, the court noted, he did not provide any statements by committee members expressing any sort of discriminatory intent, nor did he "provide any statistical evidence that 'males invariably lose' when charged with sexual misconduct at Vassar." Instead, Yu argues that only bias could explain why the committee did not read the complainant's post-incident messages as evidence of his innocence. But the court rejected this inference of institutional bias, noting that the committee was free to credit the complainant's explanation for the messages, and to weigh the messages against other inculpatory evidence, such as the testimony provided by the other witnesses who were concerned about the complainant.
Yu also argued that Vassar's policies are biased because, on the one hand, students who are incapacitated by alcohol cannot be said to have consented to sex, while on the other hand, accused students are held responsible for recognizing that, even when they are themselves intoxicated. Yet, while the court acknowledged that the policy may well reflects a "double standard" it is a double standard that benefits complainants over respondents, not women over men. Vassar's policy is written in a gender-neutral manner and does not assign the role of complainant and respondent based on sex. Moreover, the court recognized that Vassar's own sexual assault response training emphasizes that sexual assault complaints could be filed by men or women, against men or women.
Yu's second Title IX argument of selective enforcement fared no better than his erroneous outcome argument. He could not establish that men were treated more harshly than women because Vassar has never had to respond to a sexual assault allegation against a female student. Moreover, Vassar provided examples of cases in which male students accused of sexual assault were not expelled.
As this case and others demonstrate, plaintiffs challenging university discipline for sexual assault have a difficult time prevailing under Title IX, as there is often very little evidence of gender bias for them to point to. Yet this does not mean universities are free to throw the book at all those accused of sexual assault in order to avoid charges of under-enforcement of Title IX standards (as some Title IX critics may believe). Other avenues remain available to plaintiffs seeking to challenge university discipline, including due process (which only apply against state schools), breach of contract (on the theory that the code of conduct, including its disciplinary procedures, are a contract between the university and the student), and (perhaps) negligence or other torts. In this case, Yu did not prevail on his breach of contract claim because the court had determined that Vassar had not violated its own procedures. But, while not applicable here, that cause of action remains available to protect students in the event a university fails to deliver promised procedural rights to students accused of wrongdoing.
Decision: Xiaolu Peter Yu v. Vassar Coll., 2015 WL 1499408 (S.D.N.Y. Mar. 31, 2015).
Friday, April 03, 2015
Expulsion for bathroom use
My last blog post a few weeks ago was a hopeful one about transgender students and bathrooms.
This post, less hope, more dismay. A federal judge has ruled that the expulsion of Seamus Johnston from the University of Pittsburgh at Johnstown was not in violation of anti-bias statutes and dismissed his lawsuit. Johnston, a transgender man, was expelled in 2012 from the University of Pittsburgh at Johnstown for "exhibiting disorderly, lewd or indecent behavior." What did he do? He used the men's bathroom and locker room facilities.
We had not heard of this story at the time. It surely would have been one of the earlier cases of transgender bathroom policy. This ruling, had it occurred at that time, would have preceded the recent spate of cases in which students have been given the right to use facilities in accordance with their gender identity. This week's ruling back then would still have been problematic; but now it seems anomalous and thus even more worrisome. Even though there has been strong opposition to transgender students using bathrooms and locker rooms in accordance with their gender identity, largely from religious organizations, policies and legal rulings have upheld these rights. Not so here.
Johnston used men's bathrooms without (according to Inside Higher Ed's article--linked above) any problems. It was, apparently, his use of the men's locker rooms when he was taking a course in weight training where he ran into problems--seemingly from the administration. There is no report of student complaints, though that does not mean there weren't any. They wanted him to use a unisex bathroom. He continued to use the men's facilities. This led to the disciplinary hearing and his expulsion for the "lewd behavior."
The university claims that Johnston could not use the men's bathrooms and locker rooms because he was not legally a man. He had identified as a man since his enrollment in 2009 and began hormone therapy when he was a student. He had legally changed his name and presented the documentation of this fact to the university. Johnston offered "proof" of his gender identity that was both more than adequate and unnecessary. This burden of proof on transgender students continues to be, well, a burden. But the university wanted a birth certificate.
We have discussed, mostly in the context of interscholastic and intercollegiate sports, the issues with a birth certificate requirement. Many states will not, for example, re-issue a birth certificate for change of gender. This legal requirement is one that the IOC mandates for transgender athlete participation--one of the many critiques of IOC policy. Now a university is requiring that document--for a student who wants to use the men's bathroom. Seamus Johnston will be the same person with or without that document. Without it he is a person who commits acts of lewd behavior. With it, according to the University, he is a man who is not infringing on anyone's privacy rights or acting in an unbecoming way. This is the paradigm that the federal court upheld in dismissing Johnston's lawsuit.
This post, less hope, more dismay. A federal judge has ruled that the expulsion of Seamus Johnston from the University of Pittsburgh at Johnstown was not in violation of anti-bias statutes and dismissed his lawsuit. Johnston, a transgender man, was expelled in 2012 from the University of Pittsburgh at Johnstown for "exhibiting disorderly, lewd or indecent behavior." What did he do? He used the men's bathroom and locker room facilities.
We had not heard of this story at the time. It surely would have been one of the earlier cases of transgender bathroom policy. This ruling, had it occurred at that time, would have preceded the recent spate of cases in which students have been given the right to use facilities in accordance with their gender identity. This week's ruling back then would still have been problematic; but now it seems anomalous and thus even more worrisome. Even though there has been strong opposition to transgender students using bathrooms and locker rooms in accordance with their gender identity, largely from religious organizations, policies and legal rulings have upheld these rights. Not so here.
Johnston used men's bathrooms without (according to Inside Higher Ed's article--linked above) any problems. It was, apparently, his use of the men's locker rooms when he was taking a course in weight training where he ran into problems--seemingly from the administration. There is no report of student complaints, though that does not mean there weren't any. They wanted him to use a unisex bathroom. He continued to use the men's facilities. This led to the disciplinary hearing and his expulsion for the "lewd behavior."
The university claims that Johnston could not use the men's bathrooms and locker rooms because he was not legally a man. He had identified as a man since his enrollment in 2009 and began hormone therapy when he was a student. He had legally changed his name and presented the documentation of this fact to the university. Johnston offered "proof" of his gender identity that was both more than adequate and unnecessary. This burden of proof on transgender students continues to be, well, a burden. But the university wanted a birth certificate.
We have discussed, mostly in the context of interscholastic and intercollegiate sports, the issues with a birth certificate requirement. Many states will not, for example, re-issue a birth certificate for change of gender. This legal requirement is one that the IOC mandates for transgender athlete participation--one of the many critiques of IOC policy. Now a university is requiring that document--for a student who wants to use the men's bathroom. Seamus Johnston will be the same person with or without that document. Without it he is a person who commits acts of lewd behavior. With it, according to the University, he is a man who is not infringing on anyone's privacy rights or acting in an unbecoming way. This is the paradigm that the federal court upheld in dismissing Johnston's lawsuit.
Thursday, April 02, 2015
DOJ Challenges Discrimination Against Transgender Professor
The Department of Justice has filed a lawsuit against Southeastern Oklahoma State University on behalf of a transgender professor who did not receive tenure after she transitioned on the job. The university had hired Professor Rachel Tudor in 2004 to a tenure-track position in the English Department. At the time, she presented as a man and went by a traditionally male name. In 2007, she came out as transgender and began cultivating a female appearance consistent with her gender identity. She was later terminated in 2011 after having been denied tenure by the university.
She then filed a complaint with the EEOC, the federal agency that enforces employment discrimination laws. The EEOC investigated the case and determined that there was reasonable cause to believe that discrimination occurred. When a settlement could not be reached at that point, the Justice Department agreed to litigate the case, as part of what the agency is calling a "joint effort to enhance collaboration between the EEOC and the Justice Department’s Civil Rights Division for vigorous enforcement of Title VII." The case also provides the Justice Department an opportunity to put into action the position it outlined in a memorandum last December, in which it interpreted "discrimination on the basis of sex" to include discrimination on the basis of "gender identity and transgender status." This expansive view of sex discrimination goes even farther than the protection some courts have found for transgender plaintiffs on the basis of gender nonconformity or the fact of their gender transition.
The lawsuit contains several allegations that support the inference that the university's tenure decision was motivated by discrimination. For one, Professor Tudor had been recommended for tenure by her department chair. At this university, such recommendations are routinely followed, yet in Tudor's case, the Dean overrode the decision. Also, the lawsuit alleges that someone in the human resources department told Tudor that the Dean asked HR whether it would be permissible to fire Tudor because her "transgender lifestyle" offended his religious beliefs.
While the case is filed under Title VII, Title VII decisions in the realm of sex discrimination are very influential in Title IX cases. So a positive outcome in this case could translate to expanded federal protection for transgender students as well.
She then filed a complaint with the EEOC, the federal agency that enforces employment discrimination laws. The EEOC investigated the case and determined that there was reasonable cause to believe that discrimination occurred. When a settlement could not be reached at that point, the Justice Department agreed to litigate the case, as part of what the agency is calling a "joint effort to enhance collaboration between the EEOC and the Justice Department’s Civil Rights Division for vigorous enforcement of Title VII." The case also provides the Justice Department an opportunity to put into action the position it outlined in a memorandum last December, in which it interpreted "discrimination on the basis of sex" to include discrimination on the basis of "gender identity and transgender status." This expansive view of sex discrimination goes even farther than the protection some courts have found for transgender plaintiffs on the basis of gender nonconformity or the fact of their gender transition.
The lawsuit contains several allegations that support the inference that the university's tenure decision was motivated by discrimination. For one, Professor Tudor had been recommended for tenure by her department chair. At this university, such recommendations are routinely followed, yet in Tudor's case, the Dean overrode the decision. Also, the lawsuit alleges that someone in the human resources department told Tudor that the Dean asked HR whether it would be permissible to fire Tudor because her "transgender lifestyle" offended his religious beliefs.
While the case is filed under Title VII, Title VII decisions in the realm of sex discrimination are very influential in Title IX cases. So a positive outcome in this case could translate to expanded federal protection for transgender students as well.
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