Court Allows Student's Pregnancy Discrimination Lawsuit to Proceed

A federal court in Florida has refused to dismiss a lawsuit filed by a former student against Northwest Florida State College alleging that the institution's failure to reinstate her after a medical leave necessity by complications due to pregnancy violated her rights under Title IX. In reaching this decision, the court confirmed that indeed, Title IX's private right of action encompasses pregnancy discrimination claims.  The university had disputed this point by arguing that pregnancy discrimination is only covered in the regulations and not expressly mentioned in the statute, a factor that determines whether a plaintiff can file a lawsuit that seeks damages and other remedies for violations of Title IX. Nevertheless, the court concluded that pregnancy discrimination is included in the meaning of sex discrimination as Congress understood it when it enacted Title IX. For example, the court noted that Title IX's sponsor Senator Birch Bayh specifically mentioned pregnancy discrimination when describing the "social evil" Title IX was intended to address.  Additionally, though the regulations cannot themselves give rise to a cause of action, the fact that the Department of Education's predecessor agency interpreted sex discrimination to include pregnancy discrimination when promulgating Title IX's implementing regulations is an interpretation to which the court defers.

The court's sound reasoning in this case reminds me of the Supreme Court's decision in Jackson v. Birmingham School District, which similarly confirmed Title IX's private right of action includes retaliation claims even though retaliation is not expressly mentioned in the statute itself.  In that case as well the Court refused to impose an unduly narrow construction on the meaning of sex discrimination and affirmed Congress's intent to broadly address the issue.

Decision: Conley v. Northwest Florida State College, 2015 WL 7180504 (N.D. Fla. Nov. 12 2015).

Lawsuit Filed Against Michigan State Over Sexual Assault Response

Last week four women filed a lawsuit in federal court against Michigan State University to challenge the institution's response to incidents of sexual assault that they reported while enrolled as students.  Two of the plaintiffs were allegedly assaulted by the same individual associated with Kappa Sigma fraternity, which is also a defendant in their case.  In both of their cases, the university allegedly took an unusually long time to resolve the matters, 285 and 485 days respectively.  The first plaintiff also alleges that the university's response amounted to the "deliberate indifference" required for institutional liability because school officials merely put the assailant on probation after finding him responsible for violating the code of conduct, for trying to dissuade her from filing a complaint to challenge retaliatory harassment, for allowing him to remain in the dorm where they both lived, and for suggesting that she transfer rather than take action to ensure her safety. The second plaintiff alleged that her case was also mishandled when the university officials departed from its stated policy by re-opening the matter after it had been resolved by the disciplinary process and upheld on appeal, and allowing the findings of a second investigation to overturn the decision to discipline the assailant.

The third and fourth plaintiffs' cases stemmed from reports against a different assailant but which also alleged indifference on the part of MSU officials.  In one case, the Title IX Coordinator is alleged to have ignored the plaintiff's hospital records from the sexual assault examination that was conducted on the night of the rape.  The other alleges that her rights were violated by the university's decision to allow her expelled assailant to return to campus for graduation.

Michigan State has recently been cited by the Department of Education's Office for Civil Rights for not responding to sexual assault reports in a prompt and equitable manner, a point that the plaintiffs include in their complaint as well.  Because courts use a different and higher of liability than the agency does, OCR's conclusions do not control the outcome of this lawsuit.  They do, however, add context to the plaintiffs' claims involving similar problems of delay and unfair treatment.

FSU doth protest too much

Tonight CNN will air The Hunting Ground much to the dismay of current and former folks connected to FSU. Dismay that includes the threat of legal action.

Former quarterback Jameis Winston has, through his lawyer, threatened to sue for libel. Winston is still embroiled in legal action. Erica Kinsman, who is part of the documentary about campus sexual assault, has accused Winston of rape and is suing him. Despite Kinsman reporting her rape immediately (she did not know her attacker was Winston when it happened), FSU dragged its heels investigating even when she told administrators months later who it was when she recognized him on the first day of spring classes and was able to put a name to the face.

Due to the significant bumbling of the case and the leaking of information, criminal charges were never filed. An equally problematic student judicial hearing found Winston not responsible. An investigation into FSU's handling of sexual assault is ongoing.

Kinsman talks about her experience as do the other women featured in the documentary. After being run out of FSU because of the backlash against her from football fans, it was Kinsman's first public experience. As I said above, she has since filed civil charges against Winston who is countersuing her.

FSU's president John Thrasher has come out and said CNN is being irresponsible by airing the documentary. He is comparing the documentary to the now discredited story in Rolling Stone about a rape at University of Virginia saying it does not live up to journalistic standards. The comparison is bordering on hyperbolic. These women all came forward to talk on film about their experiences at schools all over the country. The documentary highlights the cultures at colleges that have resulted in the epidemic that is campus sexual assault. And it reports, using these women's stories, on how their institutions did not address what happened to them. The film also includes interviews with employees in student life and campus police. Filmmakers contend they make space for administrators from FSU to comment on film, but Thrasher denies that assertion. 

Thrasher is bandwagoning with professors at Harvard Law who also are contesting the presentation of the story of a former law student who was assaulted and saying the documentary contains inaccuracies and inconsistencies. I was not a fact checker for the film, so I cannot speak to those accusations. But I am pretty surprised that administrators and professors from schools that have ongoing and very public problems with race and gender are throwing stones at this film rather than addressing the many issues on their respective campuses. Right now it looks like they are too preoccupied with a PR campaign.

Also, this movie is--relatively speaking--old. It debuted at Sundance last year and was released in theatres shortly thereafter. I saw it in April at my local theatre. Where was the outcry then? CNN is getting heat for airing the movie but I did not see much protest when it came out last spring. (There was some protest at FSU among the devout fan base and calls that Kinsman is a liar.)

There are, last I saw, 177 open investigations at the Office of Civil Rights that will examine the practices and policies surrounding campus sexual assault at just under 150 colleges and universities (some schools have multiple complaints pending). That fact is not in dispute. It is not an exaggeration to call this problem an epidemic. All those open cases as well as the ones that have been closed, have stories attached to them. We have heard of some of the more visible ones--the stories of protest, of mattress-carrying, of activism--there are so many more. More than this documentary can hold--more than any documentary can hold.

OCR Title IX Roundup

Here are links for a few recent stories about administrative enforcement of Title IX:

The Department of Education's Office for Civil Rights has entered into an agreement with Mercer County Community College in New Jersey that will require the college to revise its grievance procedure to comply with Title IX requirements and review all sexual harassment and sexual assault complaints filed in the last academic year to determine whether those requirements were satisfied. The college's grievance procedure must be revised on a number of matters such as identifying its application to all matters of sex discrimination including sexual harassment and sexual violence, clarifying the process for filing a complaint, establishing a prompt time frame for resolution, endorsing a preponderance evidence standard of proof, and providing similar procedural rights for the complainant and respondent.

OCR has reportedly opened three investigations at universities in the state of Texas in the past year, including a broadly-focused one at Texas A&M that will consider a male student's complaint that the university's disciplinary process violates male respondents' rights.  The complainant in that case was suspended for seven months after a disciplinary hearing found that he had violated university policy by forcing a female student to have oral sex with him.  Though OCR investigations into issues related to sexual assault typically focus on the rights of the complainant, it is not unprecedented for OCR to investigate respondent's rights as it is doing here, as demonstrated by an ongoing investigation at Brandeis.

A student at the University of Wisconsin-Whitewater filed a Title IX complaint with the Department of Education's Office for Civil Rights alleging that the Dean of Students did not adequately respond to a sexual assault she reported; specifically, in that the Dean failed to interview witnesses to the incident or accept the student's police report or medical records from the incident.  She also alleges that it was three months before her assailant was removed from her classes. 

Round-up: Gender and locker room/bathroom policies

• Counsel for a Virginia high school student seeking an injunction against and rescinding of the Gloucester County school board's bathroom policy that requires transgender students to use separate, private bathrooms has asked the appellate court to reconsider the dismissal of the Title IX claim in the case. As we wrote about over the summer, the judge in this case made comments from the bench that gave the impression that he had already made up his mind in this case as well as providing a lengthy non-sequitur, and not allowing experts from the justice department to testify. The ACLU lawyers representing student Gavin Grimm, a high school junior, want Judge Doumar to consider Title IX when ruling about the school board's policy. An equal protection claim stills exists, but Doumar's rants about transgender as a mental disorder make me wonder how long that one will persist and/or what kind of fair hearing can result. Apparently Grimm's lawyers are concerned as well. It appears that, in addition to the Title IX appeal, Grimm's lawyers are asking for a new judge to be appointed to the case. They cite his suspicions around modern science and gender identity and his repeated use of the term mental disorder in describing people who are transgender.  
• Erin recently wrote about OCR's order that an Illinois School District allow a transgender student use all the facilities (restrooms, locker rooms) in accordance with her gender of identity. This piece offers more of the back story of that situation, with more information coming from the girl's mother and her daughter's experiences. 
• Another personal story of a transgender child's school experience has become a book. Nicole Maines who, with her family and a team of GLAD lawyers and advocates, successfully challenged restrictions on her bathroom use, is the subject of a book by journalist Amy Ellis Nutt. Parents, Wayne and Kelly Maines, and Nutt were on Fresh Air last month talking about their family and the book. 
• Nebraska, one of the 14 states with no policy regarding the participation of transgender children in interscholastic sports (according to Trans* Athlete), is raising the issue. The Nebraska School Activities Association continues to work towards a policy and it has many voices whispering in its ears--including parochial schools which want participation to be based on gender listed on a birth certificate. As in other states where this issue is being discussed by state activities boards, conservative Christian groups have been quite vocal in their opposition to transgender students using restroom and locker room facilities in accordance with their gender of identity. The Nebraska Catholic Conference and Nebraska Family Alliance say the gender by birth certificate is the best policy for all students and believe that more liberal policies are the result of fear of litigation. Those making decisions are right to be afraid of litigation should they institute such a policy. Cases across the country--never mind the federal government's weighing in on the issue--affirm that students should be allowed to use single-sex facilities in accordance with their gender of identity. While this seems to be about sports, it is really about locker rooms. The groups in opposition are far more concerned with where children are changing clothes and peeing and less about where they are playing soccer. This has been evident in cases in Minnesota and Montana where "family values" groups have taken out ads and used various scare tactics invoking molestation and sexual assault to prevent transgender children from using bathrooms and locker rooms based on gender identity. 
• Some of the same Catholic groups are none too happy with new Health and Human Service proposal that would prohibit discrimination in the delivery of health care services to transgender patients. This is basically, from what I read, a Title IX-esque approach to sex discrimination that explicitly protects against discrimination faced by transgender individuals. But, as noted above, these groups are not happy with the government's interpretation of sex discrimination to include gender, an interpretation of Title IX that has allowed transgender children to enter bathrooms, for example, based on their gender of identity. They see the Obama administration's support of Title IX's application to transgender people as dangerously contagious now that HHS has adopted a similar interpretation.
• In New York state, a parent concerned that a transgender boy has been using the boys' locker room called the Alliance Defending Freedom, the Christian advocacy group that is raising concerns about the HHS policy. The group sent a letter to the school in Leroy, New York stating that it is misinterpreting Title IX because  " Title IX specifically authorizes schools to maintain separate facilities." Not exactly. The student in question is not named, but apparently is doing fine--as are most other students. Apparently there is a welcoming attitude in Genesee County.

Two Sexual Assault/Harassment Cases Withstand Motions to Dismiss

In two separate cases, courts recently rejected universities' efforts to dismiss Title IX lawsuits early in the litigation:

First, a federal court in Virginia refused to dismiss a Title IX lawsuit (which we earlier blogged about here) against James Madison University to challenge the university's response to reports by the plaintiff that she had been sexually assaulted by fellow students on a spring break trip to Florida, who then posted a video of the incident. The court agreed that the plaintiff's allegation that the university's response was deliberately indifferent because it refused to address the video unless the plaintiff filed a formal complaint was a sufficient basis for liability.  Waiting for a student to file formal complaint to take any action might be an appropriate response in circumstances where the allegations are vague or uncertain, but here, there was no such uncertainty due to the video evidence. Additionally, the plaintiff's harassment was ongoing as long as the video was still being disseminated.  For these reasons, a jury could view the university's failure to take action about the video without a formal complaint as deliberate indifference.  Having so determined, the court did not need to consider whether the university's decision to punish the assailants with "expulsion upon graduation" was also an example of deliberate indifference. But I suspect this issue will be relevant as the litigation in this case continues. Of note, OCR is also investigating possible Title IX violations arising out of this same matter.  Butters v. James Madison University, 2015 WL 6825420 (W.D. Va. Nov. 6 2015).

In the second case, UCLA failed to convince a federal court to dismiss a case filed by a female graduate student who alleged the university failed to adequately respond to reports of sexual harassment by a male professor.  UCLA argued that the student was not subject to any further harassment after she had complained about the professor (the plaintiff disputed this).  However, court noted, the plaintiff is not required to show further harassment as a way of demonstrating the university's deliberate indifference. "The Court agrees with plaintiffs that placing undue emphasis on whether further harassment actually occurred to gauge the responsiveness of an educational institution would penalize a sexual harassment victim who takes steps to avoid the offending environment in which she may again encounter the harasser." Takla v. Regents of the Univ. of California, 2015 WL 6755190 (C.D. Cal. Nov. 2, 2015).

Former Iowa Athletics Administrator Files Retaliation Suit

Jane Meyer, a former senior associate athletic director, sued the University of Iowa last week, alleging that she was demoted in retaliation for complaining about the termination of the field hockey coach in 2014.  The coach, Tracy Griesbaum, is Meyer's partner.  As we have noted already on the blog, Griesbaum was fired last year after some of her players complained that she was verbally abusive, but Griesbaum and her supporters say that her termination reflects a double standard that punishes female coaches for behavior that is tolerated and even expected in men's sports. The Office for Civil Rights is currently investigating whether Griesbaum's termination violates Title IX.

Meyer, meanwhile, who had worked in Iowa's athletics department since 2001,was transferred out of the department and reassigned to a job in facilities the very day after she presented the Athletic Director with a written complaint challenging the discrimination against female coaches and other women in the department.  The university claims that her transfer was necessary to avoid a conflict that Meyer would have in the event that Griesbaum sued the Athletic Department (which hasn't happened yet).   

In addition to challenging the alleged retaliatory demotion, Meyer's lawsuit also alleges that she was the victim of sex discrimination while she worked for the department when she was passed over for promotion to deputy director despite her qualifications for the job.  She also alleges that she was paid substantially less than male administrators with comparable jobs.   

Meyer's lawsuit was filed in state court. Notably, Iowa's employment discrimination law expressly covers discrimination on the basis of sexual orientation.  Meyer reportedly seeks reinstatement to her former position, back pay to account for sex discrimination related to her salary, and an external review of the department's demotion and hiring decisions.

Banning Transgender Girl from Girls' Locker Room Violates Title IX, OCR Says

At the close of its investigation of Township High School District 211 in Illinois, the Department of Education's Office for Civil Rights concluded yesterday that the district's exclusion of a transgender girl from the girls' locker room facilities at the high school violates Title IX. 

The student in question was assigned a male sex at birth but has identified as female from a young age and in middle school began a public transition to female with her parents' support. The school district has been supportive of her in many ways; OCR notes that the high school records identify her as female, that the staff and classmates use her preferred name and female pronouns, and that she has access to girls' restrooms and plays on girls' athletics teams. Yet for the last two years, district administrators have prohibited her from changing in the various girls' locker rooms in the building, even though the student is willing and in fact prefers a private space (a restroom stall) within the girls' locker room. Instead, administrators offered to make available a separate changing area that is adjacent to the girls locker room. The student objected to this arrangement on the grounds that being relegated to an adjacent area actually draws more attention to the fact she is singled out for exclusion.  She instead changes in another area made available, which is a locked single-stall restroom elsewhere in the building. As a result of its inconvenient location and the fact that she must find a staff member to unlock it for her, the student has been late to physical education class a number of times, and is sometimes unable to access uniforms needed for class.  She has also been excluded from informal camaraderie with her teammates that sometimes occurs in the girls' athletics locker room (which is different from the P.E. locker room) prior to practice.  She was also excluded from the pool locker room. 

OCR's conclusion in this case is that excluding the transgender student from the girls' locker room impairs her educational opportunities and does so on the basis of sex in violation of Title IX.  It noted that the school could remedy this violation and protect the privacy interests of its students at the same time by installing privacy curtains in the various locker rooms -- something that it had indeed already done in the girls' P.E. locker room. Such privacy enhancements would serve the interests of all students, including the transgender student in question, who has expressed a willingness and preference for using them, as well as any other student who would feel uncomfortable changing in front of other girls. The agency has given the school district 30 days to reach a voluntary agreement along these lines, in lieu of bringing a formal enforcement action. 

This is not the first time OCR has expressed an opinion on transgender students' gender-consonant usage of single-sex facilities.  In resolution agreements with other school districts, the agency has taken the position that transgender students should be treated in accordance with their gender identity, including when it comes to bathrooms and restrooms.  This case is unique, however, for its particular focus on locker rooms and the extensive treatment of that issue.