Former Softball Player Sues St. Joseph's University Over Hazing

This month, St. Joseph's University suspended its softball team with three games left in the season in response to reports that the team engaged in hazing practices to initiate new players.  Now the university faces a lawsuit filed by one of the players who claimed that she was the victim of sexual harassment as part of that hazing, that university officials knew about and failed to adequately respond.

The complaint describes a seven-day period during the plaintiff's freshman season that was kicked off by intimidating letters with weird sexual content.  The plaintiff was required to engage in simulated sex and watch others do the same.  Her teammates required new players to answer questions about her sexual experiences, drink alcohol, and answer to demeaning nicknames.  However, the administration discovered and curtailed the hazing, though it did not initiate a formal investigation or disciplinary process.  Subsequently, during the plaintiff's sophomore season, the hazing ritual resumed again, with upperclass players insisting that they were "picking up where it was left off," so the same rituals began again. 

The plaintiff alleges that the university violated Title IX, among other legal obligations. The standard for institutional liability under Title IX first requires that the plaintiff endure serious harassment of a sexual nature. This excludes from the court's consideration allegations related to alcohol pressure and non-sexual nicknames -- including the allegation that coach called her one that was, while not sexual, pretty demeaning and gross.  Next, the plaintiff must prove that the university had actual notice and responded with deliberate indifference.  Here, the plaintiff must rely on the hazing she endured freshman year of providing notice to the university that the team would continue its behavior in subsequent seasons. The university responded to the freshman year hazing by shutting it down, so the plaintiff must convince the court that more was required to avoid committing deliberate indifference.  Unfortunately for the plaintiffs, many courts interpret deliberate indifference very narrowly to exclude just about anything north of nothing.  So the plaintiff will have to convince the court that what little the administration did to the team in her freshman season was tantamount to nothing.  The university would seemingly not be liable for the sophomore season hazing, since it has seemed to responded swiftly and strongly by suspending the team. 

For other recent stories about universities getting tough about hazing, see here (Stanford band) and here (Western Kentucky swim team).

"It's safer to be quiet": Cultures of retaliation~Cultures of sexual violence

So many voices have created the current level of visibility and activism around campus sexual assault. This week we are hearing them speak about retaliation in light of recent events that reveal the connection between cultures of sexual violence and cultures of retaliation against victims and allies who speak out.

Arguably the most visible story this week is out of New York. Columbia University graduation was this past week and Emma Sulkowicz was among the class of 2015. Sulkowicz has been carrying a mattress around campus this past year as part of a performance art piece. She vowed to keep carrying the mattress until Columbia kicked her rapist off campus. They didn't. There is an extensive back story to Sulkowicz's experience which is marked by administrative ineptitude that has never been explained or accounted for. Columbia should be apologizing to Sulkowicz but instead the university president refused to shake her hand* at last Tuesday's Senior Day ceremonies where Sulkowicz, with the help of friends, carried the mattress across stage; the last time she would carry it.

Her assailant, Paul Nungesser, also graduated this week. He was on stage a few minutes prior to Sulkowicz. He has filed a lawsuit against the school in relation to Sulkowicz's project/protest.

There has been great support for Sulkowicz, and the mattress project has inspired other activists across the country to take up the mattress as a symbol. But there has also been significant retaliation. The university contends that President Bollinger did not slight Sulkowicz--who made a concerted effort to make eye contact and shake his hand--but rather that the mattress was in the way. Given that various administrators worked very hard to keep Sulkowicz from carrying the mattress on stage, I find it hard to believe that the lack of a handshake was really due to the fact that the mattress was blocking such a gesture. Only symbolically!

Sulkowicz said she would not participate in the ceremony if she was not allowed to carry the mattress. Because of the attention to her case, this would have been even worse PR for Columbia. Though the recent posters calling Sulkowicz a "Pretty Little Liar" have not been great either.

These posters, found around campus, are part of a larger effort to silence and discredit Sulkowicz and all those who would think about reporting their assaults, those who support victims, and even those who participate in investigations (which I will discuss in a moment).

This anonymous piece in Jezebel speaks to the culture of retaliation at Columbia. Written by the woman who reported that Nungesser sexually assaulted her--a year before what he has called consensual sex with Sulkowicz, the author details her experiences and why she remains anonymous.   She is one of 4 people who report being sexually assaulted by Nungesser. The very visible and violent backlash against Sulkowicz had a silencing effect on this woman--who has only ever commented anonymously about her case--her and most likely other victims. There are so many pieces of this editorial I would like to quote (I recommend reading it all) but the most chilling phrase comes towards the end: "it's safer to be quiet."

That is certainly what a Stanford undergraduate learned this past semester. (Not a great week for Stanford.) This student is being held responsible--by the masses--for getting the Sigma Alpha Epsilon fraternity kicked off campus. She never reported the behavior she saw on pledge night; behavior that she found offensive and so left after 30 minutes. But she was asked to give a statement as a witness. She was not assaulted and never claimed to be. Somehow fraternity members found out her name and began harassing her. So despite the other factors that contributed to SAE's expulsion, this undergrad is being blamed. And when the harassment started against her specifically, this triggered an additional investigation into the fraternity. It was going to happen with or without her participation and after much thought (given her that her initial participation had gone so badly) she did decide to participate.

Her editorial is also startling and speaks to the climate of retaliation on college campuses that is barely (if at all?) being addressed as part of these larger issues.  She writes:
"My only chance to protect myself was to participate in the same Title IX process that had made me a target in the first place. I knew that any decision I made would affect not just me, but the culture surrounding reporting on campus. I am a victim of harassment and retaliation, and this experience has been among the hardest I have ever had to deal with. I cannot imagine what it must be like for victims of violence and assault. Given the retaliation I faced for merely being thought to have reported harassment, I don’t know if I could face actually reporting a case of assault. And I am not willing to become a cautionary tale, an example of the reasons why people shouldn’t report."

These stories, in addition to the ones presented in The Hunting Ground,  of women who spoke out  all include anecdotes about other victims who come to them for advice because they are too afraid to report. Too afraid of the treatment they will receive by administrators, by law enforcement, and from their peers. This is an integral part of how rape culture is perpetuated and more needs to be done specifically addressing this component.

Cost-of-Living Stipends Raise Gender Equity Challenges

On August 1, a new NCAA rule will take effect that allows college athletic programs in the five "power" conferences to increase athletic scholarships to cover the full cost of attendance by providing athletes with a stipend to cover living expenses beyond tuition, books, and room. Will these new benefits to college athletes be distributed in compliance with Title IX?  If one institution's plans are any indication, it's not looking good for gender equity.

University of Nevada Las Vegas reports that it is committed to funding stipends for athletes participating in football and men's and women's basketball.  That means 98 men will benefit (85 scholarship football players and 13 basketball) compared to only 15 women. The university also reports that the average stipend award (which is not necessarily the same for each player but varies to reflect their own individualized costs) is $4500. That's amounts to a dollar-figure disparity of about $373,500 in favor of men's athletics at a university that already allocates 59% of its athletic financial aid resources to men's teams. 

In contrast, some schools plan to award the stipend to full-scholarship athletes in every sport, something that comes closer to equitable since the NCAA has women's volleyball, gymnastics, and tennis  (along with football and men's and women's basketball) to be full-scholarship instead of partial-scholarship (i.e., "equivalency") sports.  Some schools have also suggested they may award partial stipends to those on partial scholarships. 

These diverse approaches suggest a need for the NCAA and the power five conferences themselves to ensure that all member institutions are factoring gender equity in to their decision to award stipends, or, alternatively, that the Office for Civil Rights clarify an institution's compliance obligation under Title IX.  Such guidance could treat stipends like other athletic financial aid that is regulated by Title IX, and  requires the dollar figure amount be proportionate to the breakdown of male or female athletes.  Alternatively, given that the stipend amounts are individualized to each athlete taking into account factors other than sex, I think it would also be reasonable to instead require that the number of stipends (comparing full and partial separately) be equitable between the sexes.  Either way, however, it seems clear that athletic departments are not going to spontaneously comply with Title IX, and that guidance of some kind is in order.

Punishment and reforms for Stanford band

This week Stanford University announced the results of its investigation into the university's marching band. At issue was a climate of sexual hostility marked by harassment of members, especially upon initiation. In addition there were violations of hazing and alcohol policies. This has all resulted in a ban on the band's travel to away events next year. They will perform at home events and other unnamed non-athletic events.

We had not heard of this situation; it certainly has not made headlines like the OSU band scandal. (Though apparently the band has a reputation and have a history of rude behavior at schools.) The descriptions--admittedly vague--of the incidents suggest common issues among bands (and probably other college groups): alcohol, initiation rituals based on public humiliation, and sexual harassment/assault. What is interesting is the way these problems are framed when the group in question is a college marching band. The Dean of Residential Education commented on the findings and punishment: "The university's objective is to ensure a safe and harassment-free environment while honoring the band's traditions and its unique, irreverent identity." So band hazing/harassment is because they are quirky? When sports teams do this it's about team camaraderie. When fraternities and sororities do it, it's about loyalty to the organization.

It's all a form of violence. The commonality is that students largely think these things are fine and they are "part of the culture."

The band has the option of  appealing their partial suspension.

A few weeks ago we heard about another problematic culture within a university group: the swim team at Western Kentucky. Their investigation was more explicitly Title IX focused as it looked into numerous accounts of hazing. The punishment at WKU was far more extensive: three fired coaches, a 5-year suspension, and at least one athlete who will face criminal charges.

Again, the exact events that occurred within the Stanford marching band and the WKU swim team are unknown and comparing is impossible. However...there was no discussion of adult leadership in the Stanford case. I find this curious. Where were the university employees in all this? There are, of course, numerous cases of hazing within intercollegiate athletics where coaches claim they had no idea what was going on. But that excuse that the non-student adults are really oblivious as to what their charges are up to is not as readily accepted anymore as evidenced in the WKU case and of course in the OSU band case where the director was fired.

Hazing and harassment cases call for a greater questioning of the practices of any group culture and also inquiring into how that culture has been created and perpetuated. Did this really happen at Stanford?

Federal Court Rejects Title IX's Application to Transgender Restroom Case

Last month, a federal district court in Pennsylvania rejected claims that the University of Pittsburgh violated Title IX when it denied a transgender male student access to men's locker rooms and restrooms on campus. The court rejected the argument that discrimination on the basis of one's transgender status is incorporated into the scope of sex discrimination prohibited by Title IX and instead limited the meaning of sex discrimination to discrimination on the basis of one's biological sex. In reaching this decision, the court primarily relies on Ulane v. Eastern Airlines, an employment discrimination from the 1980s in which the Seventh Circuit court of appeals reached a similar conclusion about the scope of Title VII.  It also uses a similar mode of reasoning that the Ulane court employed, which was to emphasize that Congress did not have transgender students on its mind when it passed Title IX in the 1970s.  Though the court recognized that that definition of sex discrimination has been expanded in one particular way -- to include discrimination on the basis of sex stereotypes -- it concluded that was not the nature of discrimination alleged in this case because the plaintiff, whose natal sex is female, did not experience harassment or discrimination on the basis of his failure to dress in stereotypically feminine clothing.  Rather, the nature of the discrimination he faced was being treated differently from other men because he is a transgender man instead of a cisgender man.

Even though I think the court was right that this case did not present a sex stereotyping claim, by recognizing that such a claim would have been actionable, the court concedes that cases like Ulane are out of date and an inappropriate foundation on which to bases conclusions about the meaning of sex. If Title IX includes discrimination on the basis of one's gender presentation, as the Supreme Court has itself endorsed, it is not accurate to say that the law only prohibits discrimination on the basis of biological sex.  Several federal agencies and (so far only) one federal court have used that reasoning as a starting point for an even broader interpretation of sex discrimination that would have, had the court endorsed it here, provided a remedy for the plaintiff in this case.  For example, the EEOC recognized that discriminating against someone because of their transgender gender identity is a form of discrimination because of sex.  The Department of Justice and the Department of Education's Office for Civil Rights have endorsed this view as well, as evidence by the fact that they have brought enforcement actions against school districts in support of transgender students challenging their exclusion from sex-specific spaces (see also) and also filed briefs in support of students raising those arguments in court. Additionally, OCR's most recent guidance document about sexual violence also contained the sentence, "Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation."

Unless or until the administration's more expansive definition of sex discrimination catches on with the judicial branch, educational institutions may have to contend with two standards for Title IX compliance: one that the courts apply in lawsuits brought by individual plaintiffs, and one that the government applies in its own enforcement actions. A school that excludes transgender students from sex-specific activities and facilities that accord with their gender identities may have less to fear from a student-initiated lawsuit, but could still be on the hook with OCR.  Such inconsistencies are not unheard of in the Title IX context.  For example, courts premise institutional liability for sexual harassment on a finding of deliberate indifference, while OCR has imposed a stricter and more specific standard.  As a practical matter, that means universities like Pittsburgh can continue to restrict transgender students single-sex spaces with little concern for injunctions or damages imposed by the court, but potentially risk being forced to change their policies in the context of an enforcement action by OCR. 

Decision: Johnston v. University of Pittsburgh, 2015 WL 1497753 (W.D. Pa. Mar. 31, 2015).

What Winston's drafting means

Florida State University quarterback Jameis Winston was the first pick in this year's NFL draft held last week. He won't have to go very far; as expected the Tampa Bay Buccaneers got him (they had the first pick).

I have seen a few commentaries on Winston's "off-field" troubles, though generally felt that the mainstream sport media talked around what they were calling "character issues" in the weeks leading up to last night's announcement. What utterly shocked me was a regional sports show in which the commentator noted that some of Winston's teammates, including roommate Ronald Darby, who also declared for the draft this year, might cause some teams to pause because of their off-field issues. There were no specifics provided (admittedly I did not linger on the channel so perhaps I missed them.) But I do know that Darby was in the cab with Erica Kinsman, Winston, and their third roommate. He was in the apartment while Winston assaulted her. According to Kinsman's accounts of the night one of the two roommates came into the bedroom and told Winston that he should stop. Darby was called into front of the school judicial board long before Winston. He was cleared of wrongdoing while roommate Chris Casher, was punished for taking video of the encounter. (It was deleted.) Darby may have other incidents in addition to being associated with this night (though it seems people care little about it); the point is that the commentator mentioned off-field actions as a potential deterrent to his selections by certain teams.

Despite the troubles Winston has gotten into during his brief time at FSU, however, and the pending civil lawsuit against him by Kinsman, his draft stock never fell. Let us recall a year ago when Michael Sam's draft stock plummeted after he announced he was gay. (See Cyd Zeigler's take on this one year later.)  Because in the NFL hierarchy being gay is a bigger distraction than being sued for assault.

Let's also recall Notre Dame alum, Manti Te'o who was drafted two years ago. He was picked in the second round but his stock fell too after a never-quite-explained story emerged about a dead girlfriend whom he had never met and, it turns out, never existed. This situation was described as a "character issue" and one that teams might have some issues with. Some of us thought teams were reading it as Te'o trying to cover his homosexuality. This has never been confirmed, but it certainly was a rumor and rumors abound at draft time and they affect how teams feel about these "off-field issues."

So non-normative sexuality related off-field issues = falling stock. Heterosexual sexual assault (and evidence of other misogynistic practices) = first round pick. The organizational memory of the NFL seems to be very short. I fear that Winston will remind them very soon of the need to more deeply address the culture of misogyny and homophobia in the organization.

And a final note on that deleted picture of Winston celebrating his first round pick (at home allegedly so he could be with his family) with a plate of crab legs. I know the context; the crabs were a gift from Deadliest Catch star Keith Colburn. Fine, eat and enjoy the crabs. Don't post a picture to social media with them though. And don't be surprised when there is negative reaction by both your new employer (the Bucs deny pressuring Winston to remove the photo, however) and the public. The crabs are a symbol: of ignorance, entitlement, and arrogance. Those all seem like pretty big character issues to me. 

OCR's Latest Report to the President, the Secretary of Education, and Congress

This week the Department of Education's Office for Civil Rights released its latest biannual report to the President, Secretary of Education, and Congress summarizing its work in fiscal years 2013 and 2014.  The report addressed OCR's efforts to enforce not only Title IX, but also Title VI (race and national origin discrimination), the Rehabilitation Act (disability discrimination) and other civil rights laws applicable to education.  According to the report, the agency received almost 20,000 complaints in that two-year period, 27% of which addressed sex discrimination. In contrast, disability discrimination takes up almost half of OCR's docket.

Athletics. Complaints about athletics constitute the overwhelming majority of the agency's Title IX-related work, notwithstanding the rising number of sexual assault and harassment complaints that we've seen in recent years.

OCR does not break down its data on athletics complaints to tell us how many came from college versus K-12, but it is probably the case that a vast majority of these complaints challenged athletic disparities at the high school level.  Nor does OCR provide an easy way to compare this data over time.  However, for some context, it is worth noting that the OCR's last report covered a four year period of time (2009-2012) and reported half as many athletics complaints (1,264). The current report provides a number of examples of athletics-related enforcement, including a resolution agreement that it reached with Southeastern Louisiana University in 2014, in which the university agreed to do a better job assessing interests and abilities under prong three and provide women's teams with access to facilities of comparable quality to their men's teams.  It also noted several resolutions with public school districts such as Indianapolis Public Schools. Unfortunately, the report did not provide any insight into OCR's handling of "mass complaints" filed against multiple school districts in a single state, which probably constitute a vast majority of the OCR's 3,609 figure.

Sexual Violence. OCR reported to have resolved 90 complaints involving sexual violence at the K-12 and college level during 2013-14. 25 of those resolutions were by voluntary resolution agreement, which is the agency's preferred way of handling findings of noncompliance.  While most of the illustrative examples OCR describes involve colleges and universities (Tufts and Montana, for example), the agency also took enforcement action against at least one K-12 school district for its failure to prevent and respond to sexual violence and harassment.  

LGBT Discrimination. OCR's report described having resolved two cases, one against a California school district, and another against an unnamed college, in ways that ensured transgender students' rights to be protected from harassment and be allowed to access facilities according to their gender identities.  To my knowledge, this is the first time OCR's report has described Title IX enforcement of this nature. The agency also described more generally a resolution agreement that required a charter school to conduct "age-appropriate student education on sexual harassment and non-conformity with gender stereotypes." 

OCR also briefly noted Title IX enforcement efforts related to pregnancy discrimination and retaliation claims.