Dear Colleague Letter Addresses Single-Sex "Voluntary Youth Service Organizations"

Yesterday the Department of Education's Office for Civil Rights released a Dear Colleague Letter aimed at clarifying the relationship that Title IX-covered educational institutions may have with outside organizations that discriminate in their membership on the basis of sex.  Title IX regulations prohibit schools from offering "substantial assistance" to most organizations that engage in the kinds of discrimination that schools themselves would be prohibited from engaging in under Title IX.  Substantial assistance means things like allowing the organization to use school facilities that are not otherwise open to the public, or providing financial support, staff, or other assistance.

However, as the letter explains, Title IX expressly exempts "voluntary youth service organizations" that have "traditionally limited membership to "persons of one sex and persons of less than nineteen years of age." 20 U.S.C. 1681(a)(6). The statute names the YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls as examples of these exempt organizations. I think additional examples that could fit this criteria include Girls Inc., Boys and Girls Clubs, as well as other organizations that are targeting opportunities to boys or girls of a particular race and ethnicity, such as 100 Black Men of America.

This means that schools may offer "substantial assistance" to these organizations without jeopardizing Title IX compliance and, as a result, federal funding.  However, the letter clarifies, in addition to meeting the statutory criteria of being aimed at youth and having a tradition of single sex membership, the organization must provide students with actual opportunities to do public service. Moreover, the letter clarifies that the only discrimination tolerated by such organizations is discrimination in membership. A school cannot provide assistance to organizations that commit other violations of Title IX, such as sexual or gender-based harassment. Moreover, a school must ensure comparable opportunities for boys and girls.

Title IX Covers Sexual Orientation Discrimination, Court in Pepperdine Case Rules

Two female athletes are suing Pepperdine University over discrimination they experienced as athletes on the basketball team. They allege that the head coach and other athletic department employees singled them out for unfair treatment because they suspected that the plaintiffs were lesbians and in a relationship with each other, and when they complained about mistreatment, they were forced off the team and lost their scholarships. The athletes sued the university under Title IX and other state laws. And while their case was initially dismissed, the athletes received permission to amend their complaint, and when they did, Pepperdine again moved to dismiss. This time, however, the court denied the university's motion, which means that the plaintiffs can continue to litigate the case and begin preparing for trial.

The court's decision is significant for how it treated Pepperdine's argument that the plaintiffs cannot sustain a claim under Title IX because the statute does not cover discrimination on the basis of sexual orientation. Specifically, the court refused to consider sexual orientation discrimination a separate category of discrimination, but rather, viewed it as a subset of sex discrimination. The court reached this conclusion in two separate ways --  first, by viewing sexual orientation discrimination as a type of gender stereotype discrimination, and second by considering it a matter of  "straightforward" sex discrimination.     

The gender stereotype theory of sex discrimination comes from a 1989 Supreme Court decision, Price Waterhouse v. Hopkins, which applied Title VII's ban on a sex discrimination to a case involving an employer's discrimination against female employee for not behaving sufficiently feminine in the office. Since then, courts have accepted that sex discrimination statutes like Title VII and Title IX protect gays and lesbians (and others) from discrimination when the discrimination against them is not directed at their sexual orientation per se, but at how they dress or publicly express themselves (a woman who dresses too masculine, for example). But courts have rarely extended this idea to its logical end and concluded that that all sexual orientation discrimination is sex discrimination because heterosexuality is a gender stereotype. Notably, however, the decision in this case does exactly that. The court determined that the plaintiffs stated a cause of action under Title IX because they alleged that the coaches and others targeted them for mistreatment because of their perception that the plaintiffs' dating and relationship choices did not conform to feminine stereotypes. ("If the women’s basketball staff in this case had a negative view of lesbians based on lesbians’ perceived failure to conform to the staff’s views of acceptable female behavior, actions taken on the basis of these negative biases would constitute gender stereotype discrimination."). This part of the decision is groundbreaking in its recognition that same-sex sexual orientation is itself a form a gender nonconformity that is protected under Title IX, a conclusion that renders Title IX applicable to all claims of sexual orientation discrimination by gay and lesbian plaintiffs.  

The court also provided a second reason why the plaintiffs' case is actionable under Title IX, separate from the gender nonconformity theory. According to the court, "If Plaintiffs had been males dating females, instead of females dating females, they would not have been subjected to the alleged different treatment. Plaintiffs have stated a straightforward claim of sex discrimination."  This second rationale supports the same groundbreaking conclusion that all sexual orientation discrimination is a form of sex discrimination under Title IX.  

Last July, the Equal Employment Opportunity Commission, the agency that enforces Title VII, made a similar ruling about the relationship between sexual orientation discrimination and sex discrimination. The court in this case cited that decision favorably. These two decisions together are perhaps a sign of early momentum towards an interpretation of sex discrimination laws that would make the need for separate laws prohibiting discrimination based on sexual orientation unnecessary.

Decision: Videckis v. Pepperdine Univ., 2015 WL 8769974 (C.D. Cal. Dec. 14, 2015). 

Court Refuses to Dismiss One Sexual Assault Victim's Title IX Claim Against Berkeley, Tentatively Dismisses Two Others

The University of California Regents moved to dismiss claims filed by three students who alleged that UC Berkeley's delayed and insufficient response to their reports of sexual assault violated Title IX.  The court denied the motion with respect to one student's claims, allowing her case to proceed to the next stage of litigation. The motion was granted with respect to the other two students, but they were granted permission to amend their complaints to attempt to overcome the insufficient pleading that lead to the dismissal.

In all three matters, the court decided that the university could only be liable, if at all, for harm to the plaintiff that occurred after the reported incidents of sexual assault, not for the sexual assault itself. This is because institutional liability under Title IX requires that university officials have actual notice in advance of the risk of sexual violence, and in none of the three cases did the plaintiffs allege that the university knew beforehand that the assailant in question posed a threat. Yet, the university could still potentially be liable for harm suffered by the plaintiff caused by the university's failure to adequately respond to their reports of sexual assault. For this to occur, the plaintiff must first allege that they university's response amounted to deliberate indifference. Also, though the plaintiff need not allege that such indifference caused them to be re-victimized, they do need to allege that the university's response impaired their education opportunities in some way, such as by leaving them vulnerable to further harassment or assault.

The first of the three plaintiffs reported to university officials that she was sexually assaulted by a fellow student on a club trip. She alleges in her complaint that the university did not contact her about her complaint for over 8 months and did not discipline the student with anything other than probation despite having found him responsible. However, she did not allege that the university's failure to discipline the student rendered her vulnerability to further harassment. For this reason, the court dismissed her claim, but, as noted above, will allow her to amend the complaint. The court helpfully identified  allegations that would be sufficient, including claims that she was made uncomfortable by subsequent encounters with the assailant, or that she had to alter her behavior out of fear of running into him.

The court also determined that the second plaintiff's complaint failed, but for a different reason. This plaintiff claimed that the university was deliberately indifferent in its response to learning of her report that she was raped by another student but did not include details to establish the purportedly insufficient length of time taken by the university to respond to her complaint. She too may amend her complaint to include these details.

The third plaintiff alleged that she was sexually assaulted several times while working as an assistant to a graduate student conducting research in Alaska. The perpetrator was someone affiliated with the research center that hosts a university-affiliated academic program. Moreover, he is someone who regularly guest lectures on campus. The plaintiff alleged that she reported the incidents to the university officials who failed to undertake any kind of investigation or other response. As a result, she was forced to drop those classes in which she might encounter him as a guest lecturer. The court deemed these allegations sufficient to state claim of Title IX liability, so the university's motion to dismiss was denied. The case will now proceed to the discovery phase of litigation, in which the plaintiff will have the opportunity to gather evidence needed to prove the allegations contained in her complaint.

Karasek v. Regents of the University of California, 2015 WL 8527338 (N.D. Cal. Dec. 11, 2015).

Round-up: Aftermath of the Hunting Ground airing

Amid criticisms of the film and the television station, with threats of lawsuits, CNN aired The Hunting Ground the weekend before American Thanksgiving. Here is what happened afterwards:

A report came out from the American Association of University Women that 91% of colleges and universities reported no sexual assaults in 2014. I find that number both incredulous and sadly not at all surprising. Earlier this year another study's results were released showing that one out of four college women surveyed reported being assaulted. So even with problematic studies, even with underreporting, there is no way that nine out of ten schools received no reports of sexual assault in 2014. There is missing data, as the Washington Post reports, because some schools missed the October 1 deadline to report their numbers about crimes on campus and there might be a delay in data entry at the Department of Education. Regardless, reports of zero sexual assaults should not fool anyone. It is more likely an indication that a school does not have the correct policies, procedures and training in place. As the article notes:
"a school that reports no or few sexual assaults isn’t necessarily a safe haven for students. In fact, a higher number of reported assaults can mean the assault investigation system is operating effectively."

 This seems to be playing out at Brown University, which recently revised its sexual assault policies. The number of reported assaults has increased. According to administrators, the new process--spurred by a complaint about the handling of a student's accusations and the punishment levied against the assailant and an OCR investigation--has made it easier for victims to report and move through the hearing process.

Down in Tallahassee, Florida Florida State administrators, lead by President John Thrasher, continue to defend themselves against allegations of mishandling sexual assault complaints and are working very hard to keep their secrets secret--with limited success. Days after Thrasher chastised The Hunting Ground, the university was forced to release transcripts (by a judge and requested by NYT) of depositions in Erica Kinsman's lawsuit. The former head of the victim advocacy program provided some numbers. The "good" news is that FSU did--unlike 90% of American colleges and universities--report sexual assault in 2014; nine incidents, according to Melissa Ashton who was in charge of the program at the time. But she also said that 113 incidents were reported to her office. Ashton was in her position for nine years and, according to her testimony, there were 40 football players reported for sexual assault or intimate partner violence. Only one of those 40 were found responsible she said noting that many women would not pursue cases against football players because they were afraid of the repercussions. Part of FSU's response was a basic shrugging of the shoulders, noting that there was nothing the university could do if the victim would not report outside of the victim advocacy program. There was nothing about trying to change the culture of fear and intimidation.  

The other deposition some were interested in was that of head football coach Jimbo Fisher. He reported that he was not aware of FSU's sexual assault policies and thought that Title IX was about equality in men's and women's sports. The line of questioning was trying to determine what Fisher, and his superiors, knew about the accusations against Winston, when, and what they did about them. Ashton noted that whether there was even a staff member at FSU who dealt with Title IX issues during that time is in doubt. This does not excuse FSU or Fisher and his superiors from reporting the allegations, in part because not having a Title IX coordinator is a Title IX violation.

This case is not scheduled for trial until September 2016. That provided Thrasher with an abundance of time to keep praising and defending FSU.

PS: I looked for news about Winston was planning in the wake of CNN's airing of the documentary. No word on the lawsuit he was threatening.

Illinois School District Settles With OCR in Locker Room Case

The school district in Palatine, Illinois has agreed to a settlement with the Department of Education that will resolve the agency's findings made last month that the high school's exclusion of a transgender student from girls' locker room violates Title IX. Specifically, the school district has agreed to allow the student in question, who identifies as female, to change in the the girls' locker with the other girls, on the condition that she use private changing stations located within the locker room. The district must also install privacy curtains and provide additional accommodations for any student who desire enhanced privacy.

The Department of Education notes that this case is the first time it has found discrimination against a transgender student to violate Title IX. Notably, however, it is not requiring the school district to adopt a general policy of inclusion but merely to provide access to this particular student who had already agreed to (and in fact, requested) the opportunity to use a private changing station within the girls locker room. It appears to me that the agency was giving up the opportunity to compel a broader remedy for the sake of compromise; yet despite the settlement's narrow focus (and that fact that no settlement would have jeopardized the school district's federal funding) the school district's decision to endorse the agreement was reportedly not an easy one. The fact that a three-hour meeting was required to endorse the settlement unfortunately demonstrates considerable resistance to transgender inclusion. It was heartening, however, to read that many students supported the deal.

Duluth Coaches and Students File Title IX Complaint

A group of four former student athletes, one current student athlete, and three former coaches have filed a complaint with the Department of Education's Office for Civil Rights challenging widespread sex discrimination within the athletic department at the University of Minnesota-Duluth. The former coaches -- Shannon Miller, Jen Banford, and Annette Wiles -- are also plaintiffs in a lawsuit against the university challenging sex- and sexual orientation- discrimination that resulted in the termination or forced resignation of their jobs.  But the OCR complaint alleges even more widespread sex discrimination that affects students and coaches alike.

Allegations in the complaint include the following:

• women's ice hockey team has a smaller operating budget (by over $270K) than its male counterpart
• women's softball team was forced to have tryouts in order to pad the number of female athletes reported for gender equity purposes, then the department made the coach cut those extra players for budgetary reasons 
• some female athletes were fraudulently reported as participants in multiple sports
• men's basketball team is allowed to carry redshirt players, while the women's team is not
• the department has terminated female coaches, depriving female athletes the opportunity to receive coaching of high quality
• the department provides men's teams coach with resources like vehicles, a restaurant expense account, and support staff, that are not provided to the women's coaches on equal terms. 
• the men's basketball team has a locker room five times larger and of superior quality than the locker room for women's team
• the men's hockey team is provided with resources like snacks, meals, travel funds to tournaments that were not provided in equal measure to the women's team. 
• the women's basketball team had fewer games and travel opportunities than the men's team; the women's team had to fundraise for travel and the men were not
• men's teams had bigger budgets for recruiting, more equipment and uniforms, and medical equipment denied to women's teams
• female athletes have fewer opportunities for scholarships, such as funding to enroll in special May term, J-term, and summer semesters that male athletes receive
• the department does less promotion for female teams than its male counterparts, among other examples, it tweeted about men's hockey 309 times compared to 69 tweets about women's hockey

OCR will now consider whether to open an investigation (it likely will).  If the allegations are validated, it is very hard to imagine how they could not constitute violations of Title IX. While it is not necessarily a violation to have a disparity in treatment between men's and women's teams in the same sport, it is a violation when the athletic department's pattern is to select the women's team for inferior treatment all or most of the time.

Article Identifies Religious Institutions Exempt from Title IX

Title IX permits religious institutions to claim an exemption for matters where Title IX's compliance conflicts with religious doctrine. In the wake of Department of Education's increasing tendency to apply Title IX to discrimination against LGBT individuals, religious institutions have increasing utilized the provision to opt out of the law's nondiscrimination mandate.  While a couple of examples had been made public, it's been difficult to find a complete list of which institutions are opting out of Title IX on religious grounds. 

Until now. Earlier this week, a news service called The Column published a complete list of religious institutions claiming exemption under Title IX, 27 of which have been approved by the Department o Education thus far. The article also exposes what appears to be a concerted effort by religious schools to utilize the exemption for the purpose of exclude LGBT students. For example, Baptist church leaders in Texas passed a resolution denouncing transgender individuals so that affiliated education institutions would have evidence of a doctrinal conflict to use in their Title IX exemption applications. The Christian Legal Society has provided training and model language for religious institutions to use in support of their applications.

Transgender individuals seem to be the primary target for exempt institutions, who cite in their applications (which are helpfully appended to the article) religious beliefs about the immutability of sex. They have been granted exemptions from regulations governing admissions (although, private undergraduate institutions already do not have to comply with Title IX's application to admissions) and regulations that could be interpreted to allow transgender individuals access to sex-segregated facilities and athletics programs in accordance with their gender identities. In addition to transgender students, another targeted group appears to be unmarried and pregnant students, as many religious institutions have received exemption from the requirement under Title IX to not discriminate on the basis of pregnancy, such as by expelling pregnant students or denying them certain accommodations. 

As the article notes, the exemption operates to allow $130 million annually in federal funding to support institutions that discriminate in ways that are otherwise prohibited under law, an idea that many find objectionable.  It is also troubling that information about the exemption is difficult to find. Students or employees who are subject to discrimination at these institutions may be surprised to find out that they are not legally protected, and might have made different choices about where to enroll or accept a job if they had known.  For this reason, I am going to type out the entire list of institutions who have received or are claiming such exemptions, to increase the likelihood that this information can be discovered by those searching for information about the school. The list is provided after the jump.

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. 

Advocates Urge Government to Clarify Title IX's Application to Social Media Sites Like Yik Yak

The Chronicle of Higher Education reported yesterday on recent efforts to clarify Title IX's application to sexual and other forms of harassment perpetrated by anonymous users of social media sites like Yik Yak.  A letter to the Department of Education signed by over 70 advocacy groups presented research and examples to illustrate the problem of social media harassment, where the anonymity of such fora allows users to post comments that range from rude to hostile, including actual threats of bodily harm, without any accountability. The advocates call on the Department of Education to issue guidance that specifically addresses schools' and universities' legal obligation to address harassment that occurs on such forums.

The Department of Education already insists that harassment that utilizes technology such as cell phones and the Internet as actionable as long as it rises to the level of a hostile environment.  According to its 2010 guidance, "Harassment creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by the school."

The advocates' letter presented numerous examples of harassment on Yik Yak that rises to this level.  Yet, they argue, many schools have taken the position that there is nothing they can do to address harassment that occurs in this form due to the anonymity of the postings.  They also suggest that the Department of Education address schools' concerns about students' constitutional rights to free speech, by clarifying when online harassment crosses the line from protected to nonprotected conduct, and affirming schools' obligations to address the latter.  The letter contained specific suggestions for the Department of Education to consider including in such guidance, including responses like:

• investigating all reports of online harassment, whether or not perpetrators are “anonymous”;
• initiating campus disciplinary proceedings against individuals engaging in online harassment;
• geo-fencing of anonymous social media applications that are used to threaten, intimidate, or harass students; 
• barring the use of campus wi-fi to view or post to these applications; 
• prompt reporting of anonymous online threats of physical and sexual violence to police and the social media application, as appropriate; 
• monitoring social media applications to ensure immediate response to online harassment and intimidation; providing counseling and appropriate accommodations for targets of online harassment and intimidation and others affected by it; and
• conducting mandatory training or intervention programs for students, faculty, and staff, including Title IX Coordinators and other appropriate administrators, on the use of these social media applications to engage in harassment and intimidation. 

I have no basis for predicting whether or not the Department of Education will respond to the advocates' suggestion and issue the guidance that they request.  But I can say that even in the absence of such guidance, the agency could still take the position that a school or university's indifference to Yik Yak harassment violates Title IX, which is already defined to require a response to actionable harassment  that occurs in cyberspace. So even if the Department does not formally endorse them, schools and universities should consider utilizing recommendations like these in appropriate circumstances. From a compliance standpoint, doing nothing is probably already a risky course of action.

Sexual harassment roundup

Here is a roundup of some recent judicial decisions in Title IX cases alleging institutional liability for sexual harassment. 

A cheerleading coach's teasing of a female student's "saggy boobs" was inappropriate but not sufficiently severe to constitute sexual harassment within the meaning of Title IX.  Nor was the school district deliberately indifferent to the student's complaint, as school officials investigated the matter, suspended the coach for two weeks, and reprimanded her.  Doe v. Georgetown County Sch. Dist., 2015 WL 5923610 (D.S.C. Oct. 9, 2015).

A school district was not liable to a female student for sexual assault by a male student in the same special education program. School officials were not alleged to have notice of any past instances of sexual the male student's sexual misconduct, except one incident in which he had asked a female classmate if he could touch her (and did not, apparently, touch her). Even if this incident could be found to have put school officials on notice that he was a sexual threat to other students, school officials did not respond to that incident with deliberate indifference but instead subjected the student to enhanced supervision and separated him from female student he had propositioned.  Swanger v. Warrior Run Sch. Dist., 2015 WL 5830068 (M.D. Pa. Sept. 30, 2015).

Pervasive bullying that included keying the word "cunt" into a female classmate's car, but that otherwise involved no reference to sex or gender, did not constitute harassment "because of sex" for purposes of Title IX. Hankey v. Town of Concord-Carlisle, 2015 WL 5737136 (D. Mass. Sept. 30, 2015).

A federal judge in Ohio refused to dismiss a Title IX claim against a vocational college after determining material facts were in dispute that could, if proven, give rise to liability for sexual abuse of a student by a culinary arts instructor. The plaintiff, who claims she was seduced by the instructor into a sexual relationship, alleged that the college had notice of the instructor's bad boundaries, including inappropriate comments and touching.  However, a trial is warranted to determine precisely how much of the instructor's earlier bad behavior had been reported, and, consequently, whether the college's response -- which included investigating the instructor and subjecting him to some monitoring, but not removing him from the classroom or limiting his contact with students -- was tantamount to indifference.  Doe v. Springfield-Clark Career Technology Center, 2015 WL 5729327 (S.D. Ohio Sept. 30, 2015).

A university was not deliberately indifferent to a graduate student's report of sexual harassment by a professor, having responded to the student's complaint by conducting an investigation, changing her work assignment and office location, and supervising future meetings between the student and professor.  The student was, however, allowed to continue to litigate her Title VII hostile environment claim, because Title VII does not use a deliberate indifferent standard.  The fact that the professor was the student's supervisor puts the burden on the university to prove to a jury that they exercised "reasonable care" to prevent/address the harassment and that (by quitting just one week after filing her complaint) the complainant herself unreasonably failed to avail herself of preventive or corrective measures adopted by the university. Jenkins v. University of Minnesota, 2015 WL 5521746 (D. Minn. Sept. 18, 2015).

Two More Disciplined Student Suits Dismissed

We've been carefully tracking the efforts of students who are disciplined for sexual assault to use Title IX and other law to challenge their university's disciplinary hearing process and result. Here are two more cases to add to the file.

In the first case, a male student was expelled from the University of Missouri after a disciplinary hearing found him responsible for "nonconsensual sexual contact" and other violations of the code of conduct.  Prior to the hearing, the student fired the attorney he had initially hired to assist him in the process, and the university accommodated his first request to postpone the hearing to allow him to seek a replacement. But the university denied the student's second request, made on the day of the hearing, to postpone yet again.  The student then opted not to participate in the hearing.

The student sued the university, alleging that it had discriminated against him on the basis of sex in violation of Title IX, but the court dismissed this claim after determining he had "unquestionably failed" to allege any facts that suggested gender bias on the part of university officials. His argument appeared to have been that the complainant in his case (and complainants in general), are treated more favorably than he was (and respondents in general). Yet, in addition to vagueness, this argument failed for not being targeted at sex discrimination. As the court noted, "[e]ven if the University treated the female student more favorably than the Plaintiff, during the disciplinary process, 'the mere fact that Plaintiff is male and [the alleged victim] is female does not suggest that the disparate treatment was because of Plaintiff's sex.'"  Nor is "demonstrating that a university official is biased in favor of the alleged victims of sexual assault claims, and against the alleged perpetrators... the equivalent of demonstrating bias against male students." The court also dismissed the plaintiff's due process claim, noting that the plaintiff "was afforded adequate procedural rights by Defendants by way of notice of the charges, identification of the violations charged, and an opportunity to present his case even though he refused to participate."  All other claims in the plaintiffs' complaint were similarly dismissed.

In the second case, a male student was accused of rape by a female classmate at Augustana University in South Dakota.  The university suspended him while it conducted its investigation and hearing process.  The student asked the university to postpone its hearing until the criminal charges he was also facing had been resolved, but the university refused. So the student sued, seeking a preliminary injunction that would force the university to wait to pursue disciplinary action.  But last week the federal court in South Dakota refused to grant the injunction after determining that the plaintiff did not have a "likelihood of success on the merits," which is the key inquiry in  preliminary injunction cases.  The court predicted that his Title IX claims would fail because the plaintiff did not allege an erroneous outcome, as his claims lacked both an "outcome" (because the hearing hasn't happened yet) and specific allegations of gender bias. Like the case discussed above, the court refused to consider arguments about favoritism to complainants as tantamount to discrimination because of sex.  And while the plaintiff alleged that the university's procedures "in practice" only apply to males, the court read this as a disparate impact claim which is not actionable under Title IX. 

The court also predicted that the plaintiff would lose on the merits of his due process claim, because Augustana University is private and not a state actor, as well as his breach of contract claim.  Related to his contract theory, the plaintiff alleged that the university breached its obligation of "good faith and fair dealing" by imposing on him the dilemma that he faces: participate in the disciplinary hearing (and possibly incriminate himself in ways that could be used against him in the criminal matter) or not participate in the disciplinary hearing (and forego the opportunity to defend himself).  The court acknowledged the dilemma, but did not find it to be bad faith on the university's part. As the court has denied the motion for injunction, the plaintiff will now have to choose between participating in the hearing and avoiding the risk of incriminating himself.

Salau v. Denton,  2015 WL 5885641 (W.D. Mo. Oct. 8, 2015).
Tsuruta v. Augustana University, 2015  WL 5838602 (D.S.D. Oct. 7, 2015). 

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.