Roundup of School District Sexual Harassment Cases

Here are some updates in Title IX cases involving sexual harassment in schools:

• A federal court ruled that bullying consisting of pulling down another boy's pants, one time in front of a girl, was not harassment "because of sex" for purposes of Title IX. Morgan v. Town of Lexington, 2015 WL 5634463 (D. Mass. Sept. 24, 2015).  

• A principle's arguable knowledge of a volunteer teacher's "inclination to engage in inappropriate relationships with school-age boys," in combination with the school district's lack of effort to limit the teacher's access to its students, precluded summary judgment on Title IX claim. K.S. v. Detroit Public Schools, 2015 WL 5460674 (E.D. Mich. Sept. 16, 2015). 

• School officials' failure to respond to reports of one student's sexual abuse of various other students by doing anything other than documenting the incidents and, in one case, moving the victim to another dorm room, could constitute deliberate indifference for purposes of Title IX.  BPS v. Colo. Sch. for the Deaf and Blind, 2015 WL 5444341 (D. Colo. Sept. 16, 2015).

• Dispute as to whether or not parent had told school officials about sexual misconduct by an adult male special needs student precluded dismissal on summary judgment.  Kauhako v. State of Hawaii Bd. of Educ., 2015 WL 5312359 (D. Ha. Sept. 9, 2015).

• School district's decision to defer to police department's investigation was not deliberately indifferent, where it continued to prevent the perpetrators from returning to school and took other steps to measure and address safety.  Doe v. Bibb County Bd. of Educ., 2015 WL 5063746 (M.D. Ga. Aug. 27, 2015).

• A school cannot be liable under Title IX for a teacher's sexual advances on a student, where school officials acted swiftly and decisively to force the teacher's resignation upon learning of his misconduct.  Doe v. Crown Point Sch. Corp., 2105 WL 5038093 (N.D. Ind. Aug. 26, 2015).

• Title IX claim alleging school district's failure to respond to bullying directed at the plaintiff because of his "effeminate mannerisms and way of speaking" adequately alleged discrimination on the basis of sex. J.R. v. N.Y. City Bd. of Educ., 2015 WL 5007918 (E.D.N.Y. Aug. 23, 2015). 

Student Discplined for Off-Campus Conduct and Tweets Wins Appeal on Narrow Grounds

The Kansas Court of Appeals recently affirmed the decision of a lower court to dismiss a lawsuit by a student disciplined for sexual harassment and other offenseses, but in so doing, side-stepped the contentious questions about Title IX's applicability to off-campus conduct and its conflict with freedom of speech.

In 2013, the University of Kansas expelled Navid Yeasin for threatening and harassing a female classmate he had been dating, who is referred to in the case as "W."  Yeasin and W. had had an altercation off-campus over what Yeasin perceived as W's infidelity. Following this incident, Yeasin used Twitter to post what seem to be reasonably interpreted as harassing and threatening tweets directed at W. After a disciplinary hearing, Yeasin was expelled for the off-campus altercation as well as the tweets, the latter of which violated the University's no-contact order and were found by the hearing panel to constitute sexual harassment: unwelcome and sufficiently severe to have interfered with W's educational opportunities. 

Yeasin sued the university, arguing that the university did not have the authority under Title IX to discipline him for off-campus conduct or for constitutionally protected speech. The lower court, as well as the Court of Appeals, granted relief to Yeasin, but on narrow grounds.  The university's sexual harassment policy by its terms only applied to conduct that occurs on campus or at university-sponsored events.  For this reason, the university had no authority to expel Yeasin. The court did not reach the question of whether Title IX permits a university to discipline a student for off-campus conduct or whether Yeasin's tweets were protected by the First Amendment.

The take-away from this decision is therefore a narrow one: a university's authority to discipline a student for off-campus conduct starts with a clear and valid policy that asserts such jurisdiction.  If Title IX or the Constitution provide outer limits to a university's authority in this regard, those limits can only be tested in a case where a university disciplines a student for off-campus conduct in reliance on its clear and valid policy.

Decision: Yeasin v. University of Kansas, 2015 WL 561617 (Kan. Ct. App. Sept. 25, 2015).

Lawsuit against Minnesota-Duluth

In a move that everyone knew was coming, three former coaches at the University of Minnesota-Duluth have filed a lawsuit against the university alleging discrimination on seven different counts including gender and sexual orientation. Shannon Miller (hockey), Jen Banford (softball, hockey relations), and Annette Wiles (basketball) have worked together on the lawsuit, which was precipitated by events that began almost a year ago when Miller's contract was not renewed because the university claimed it could no longer afford her. She was, at the time, the highest paid women's hockey coach, but notably paid less the UMD's men's coach.

All three women are gay and the lawsuit alleges that their openness about their sexuality was a key factor in the discrimination they faced. We have not heard about specific incidents of discrimination, rather the coverage has focused on contracts and the timeline of events that lead to the dismissal and/or resignation of each woman. But I suspect more stories that corroborate the women's claims will be made public as the legal challenges proceed. Miller, for example, recounted to the press today that she came to work one day and found that the name tag on her office door had been removed and replaced with the word dyke. She took it down and reported it. The name tag was never replaced and the incident never investigated. She also received anonymous hate mail on department letterhead.

The UMD chancellor has said that--although he has not yet looked over the lawsuit--he is sure that the claims of discrimination against the university will be proven false but that "we can always get better" on diversity issues. Miller's story certainly exemplifies the need to do better and also suggests that the chancellor's comments about no discrimination taking place may be a little overconfident at this point.

The lawsuit is against UMD but it cites athletic director Josh Berlo extensively. Berlo remains the athletic director and the university continues to support him. Miller cites his arrival at UMD in 2013 as a turning point in the culture of the department:
"It's language; it's how they treat you in meetings; it's how they don't meet with you; how they react when you take something forward to them, a complaint. So there was a shift, and it was a really strong shift, and it's the most abrupt and rude treatment I've ever received in my entire life as a professional." 

I find this indictment of Berlo interesting in light of a recent article in the Harvard Business Review titled "Why do so many incompetent men become leaders?" It is certainly relevant to the issue of female coaches and female athletic department administrators, as noted by friend-of-the-blog and activist Pat Griffin.

According to one of the coaches' lawyers--Dan Siegel, who was counsel on the Fresno State cases in which dismissed female coaches won millions in their discrimination lawsuits--the university has not engaged in any conversation about settlement. Right now this appears to be a "digging their heels in" case. Though this case, according to Siegel, is less complicated than the Fresno cases in terms of evidence proving discrimination. It is also notable that both schools are state universities. This means that the burden of either a settlement or award in favor of the plaintiffs will be born by the taxpayers--in one way or another.

I had truly thought that Fresno State would serve as cautionary tale for other institutions. UMD though appears to be on the path to becoming the new (old) Fresno State.

New survey, more stats and facts to ponder about campus sexual assault

The headlines this week in the realm off college sexual assault have been about the UVA resolution and the new survey about the rate of sexual assault on campuses. Regarding the latter, the ones I have seen have looked like this: "1 in 4 college women report being sexually assaulted."

I dislike headlines like this because they are what people remember. They are easy. And they are easy to refute by those who wish to diminish the severity of this problem and/or blame the victims. Because headlines like this are never truly accurate. Because what sound study can be summed up with one statistic? There are always limitations.

This, I realize, is a disconnect between the interests of the media and the interests of researchers and research institutions. It is not likely to change. Headlines will not become more nuanced and reflective of actual findings.

I proceed regardless. I proceed in part because the last study's one remembered statistic is still with us: 1 in 5. It is used in endless articles about the topic, documentaries, conversations among advocates, policymakers, and in political speeches. And again, those who wish to refute those numbers can do so because the study was not perfect. It was small. It surveyed students at 2 universities--large universities, but two--in different geographic regions. It was a web-based survey which yielded a low response rate. It was typical of web surveys but low in comparison to other data collection methods. But the published study says that the results are not generalizable to other universities. One of the researchers, as recently as last year, has said to the media that the 1 in 5 statistic is being used out of context. It has not been recognized for what it was: a foundation. A request for more information. A call for additional research. It was not an ideal study. No study is. But headlines do not say that and neither do--usually--paragraphs one through three. The asterisks come later in these reports.

So now we have a new study. The Association of American Universities commissioned a study to look at rates of sexual assault at its member schools. This is where the new 1 in 4 statistic comes from. Here are the asterisks:

• Small sample, low response rate. Only 26 schools participated. The response rate was less than 20%. The report speaks to non-response bias and suggests that the 1 in 4 could be over inflated because those who experienced or were affected by sexual assault could be more likely to fill out a survey about it.
• Definition of sexual assault. As the articles did get to, the definition used by the survey was "broad." That means comparisons among other studies that do not use the same definition or among individual schools may not be possible. (More on why the so-called broad definition is a good thing below.)

Here is what I take from the study:

• The broad definition is good because it accounts for a range of behaviors and actions, which is important to people who have experienced sexual assault. The hierarchy that is created among different acts and between sexual assault and harassment is unproductive and arguably damaging. With the prevalent belief that being penetrated by a penis is the only definition of sexual assault, some victims are left wondering whether digital penetration or forced oral sex counts or that they should get over it because "it could have been worse." Additionally, the study reported the numbers from different categories of assault. The 1 in 4 is inclusive; but that number is broken down in the report. 
• The concern by some students that the study was too explicit in its description of sexual assault is connected to the confusion I speak of above regarding the question of "what counts." It is also concerning because it speaks to how difficult it is to actually talk about and describe what happens in actual sexual assault. And if people find that difficult to do in an anonymous survey....There are clearly implications here about the difficulties of reporting and the need for really good training for those who are handling reports provided by victims.

Before I write what I am going to write, I want to acknowledge that this study is a good thing in that it attempts to discover patterns about what is happening on campuses. There has been critique that the schools that participated do not have to release the findings particular to their campuses. (Some of them have and will.) But the goal of the AAU study was not to condemn or humiliate individual schools, it was to discover the proverbial bigger picture. School themselves should be going beyond quantitative surveys with low response rates and response bias. They should always be in the process of assessing the campus climate.

That being said: does it matter that this number is different from the long-reported 1 in 5?
If you told a young woman that she had a 20% chance of being sexually assaulted versus a 25% chance would it make that much of a difference to her? To her parents? 1 in 4 versus 1 in 5. It is not more or less of an epidemic. It is does not (or should not) provide more justification for training programs in bystander intervention.

Perhaps it matters in the way 1 in 5 mattered: to politicians and activists who cite it as a call to action. Maybe if it matters if 1 in 4 means Congress will appropriate more money to hiring OCR staff or if foundations earmark more money for studies of college sexual assault. But I would imagine that every congressional hearing or meeting where this new study and statistic is cited, there will be  opponents who say that the number of wrong, the study problematic. And that is what I fear. Because that takes attention away from the likely reality for that one woman, in a group of 4 (or 5 or maybe even 6!) of her female peers, who will--statistically speaking--will be sexually assaulted during her time on campus.

OCR Settles with UVA After Investigation Reveals "Mixed Record" of Compliance

On Monday the Department of Education's Office for Civil Rights announced a resolution agreement with the University of Virginia, which had been under investigation for alleged violations of Title IX arising from the university's response to sexual harassment and sexual violence on campus. OCR determined that during the 2011-12 academic year, UVA had a "mixed record" -- sometimes handling cases adequately and other times failing to respond in the prompt and equitable manner required by law.  For example, in one case, the university took nine months to hold a hearing on a reported sexual assault, a delay that included five months between the completion of the investigator's report and the scheduled hearing date.  In that same case, the university was also faulted for failing to look at other responses (besides a disciplinary hearing) that may have been warranted by the situation. In another case, the university did not give the complainant adequate opportunity to defend charges contained in a cross-claim filed by the accused.

OCR's investigation also revealed that in situations where the complainant requested confidentiality or otherwise refused to participate in a disciplinary hearing, the university dropped the matter entirely rather than seeking to ascertain whether other responses might be appropriate in light of the university's obligation to protect all students.  In cases where the university had knowledge of a possible assault occurring in the context of a fraternity, it failed to investigate, it said, because the alleged victim did not wish to file a complaint.  Yet, the university could have still investigated the matter and considered other remedies besides those, like a disciplinary action, that require the complainant's participation.

Additionally, OCR found deficiencies in the university's handling of sexual harassment complaints filed against faculty members, which tended to be only minimally investigated and not well coordinated with the academic departments. 

OCR noted, however, that the sexual assault policy UVA adopted earlier this year is the first one that the agency has found to fully comply with the Title IX since the 2014 guidelines were issued. As such, the university is not obligated to make policy changes going forward.  However, it has agreed to go back and look at cases decided under the old policy in other recent years to see whether they were handled properly.  For any handled improperly, the university should provide "appropriate remedies that may still be available to the complainants .. and remedies that may be necessary to address the climate of the larger university community." The university also agreed to provide OCR with documentation of its response to sexual harassment and sexual violence complaints for the next two years. 

Professor's Title IX Claim Against Northwestern Dismissed

A federal court in Illinois recently gave two reasons for dismissing Professor Peter Ludlow's Title IX claims against Northwestern University, arising from its decision to investigate charges by a graduate student that Ludlow had had nonconsensual sex with her during a period of time in which they were dating (the court's characterization).

First, the court determined that Ludlow was actually challenging an adverse employment action, and, as such, his Title IX claim was preempted by Title VII, the federal employment discrimination statute. The issue of Title VII preemption is not handled consistently by the courts, but there is precedent in the Seventh Circuit -- binding on the federal courts in Illinois -- that withholds Title IX remedies in cases where employees allege sex discrimination by their employer, reasoning that Congress intended the mechanisms of Title VII enforcement (which include first seeking relief from the EEOC) to apply instead.

Second, the court reasoned that even if the Title IX claims were not preempted, Ludlow had not alleged facts that suggest that the university's response in investigating the graduate student's claim had anything to do with his male sex, but instead, because the charge against him was rape. As the court put it, "That Ludlow is male is a conclusion without any link to the investigation itself and his statement that Northwestern 'needed to believe the victim' does not sustain the inference that Northwestern took the genders of the victim and accused into account."  Nor could Ludlow sustain a sex discrimination claim by arguing that men are more often burdened rather than helped by victim-friendly procedures, since there is no private right of action for disparate impact claims under Title IX.  In this way the court's decision is very similar to the majority of Title IX decisions in disciplined-student cases, such as the case against Columbia which is cited a number of times in the opinion.

After dismissing Ludlow's Title IX claim, the federal court determined that it had no basis for exercising supplemental jurisdiction over his state law claims, and subsequently dismissed those as well.

Ludlow v. Northwestern Univ., 2015 WL 5116867 (N.D. Ill. Aug. 28, 2015).

Michigan State's Grievance Procedure Violated Title IX

Today the Department of Education's Office for Civil Rights released the findings and conclusions of its investigation into two students' complaints that Michigan State University mishandled their complaints of sexual assault and related harassment and retaliation.  OCR determined that deficiencies in Michigan State's grievance procedure violated Title IX, as did its failure to notify students of the identity and role its Title IX Coordinator. Specifically, OCR found that even though it had notice of the alleged assault on the first student, Michigan State waited weeks before commencing an investigation because its policies at the time did not permit the university to go forward until the alleged victim filed a formal complaint. OCR determined that once the University initiated the investigation, it provided a thorough, impartial and equitable response. In the second student's case, it took the University a year from the time of report to resolve the matter, a time frame that OCR determined did not satisfy the requirement for a "prompt" resolution. 

In addition to reviewing the two complainant's cases, OCR also review three years worth of files documenting the university's response to sexual harassment and assault.  There it found more instances of delayed resolution, as well as possible failure on the university's part to notify the complainants of the final outcomes in their cases and their rights to appeal.  In one file, OCR made the "troubling" finding that the University waited until multiple sexual harassment complaints were filed to take action against a counselor who was reported to have harassed students who were seeking support for having been sexually assaulted.  In another case, the University wrongly dismissed a claim of co-worker sexual harassment because it was not sufficiently severe, despite having found credible the complaining employee's description of how the harassment had negatively affected the work environment.  There were other, similar examples of the University's inadequate handling of employee harassment. 

In response to OCR's findings, Michigan State has agreed to a number of corrective measures, including revising inadequate policies, improving notice of the Title IX Coordinator, improving staff training as well as training for students and student-athletes in particular, developing a Memorandum of Understanding with local law enforcement, and offering to address any harm students who reported sexual harassment or assault incurred as a result of the university's delay in processing their complaints.