Elmira Resolution Announced Today

Today the Department of Education's Office for Civil Rights announced a resolution agreement with Elmira College in New York, after finding the college in violation of some of Title IX's requirements governing its sexual assault response. OCR's investigation was prompted by the complaint of a student who reported to campus officials in November of 2013 that she had been sexually assaulted by a fellow student. (Specifically, she reported that he had become"forceful" and she agreed to have sex with him "out of fear.") After investigation, the final investigative report concluded that the respondent committed sexual misconduct, but did not engage in sexual assault, and sanctioned the respondent with a no-contact order. OCR determined that while the college's response was equitable, the fact the it did not start investigating the complainant's November report until February of the following year was not sufficiently "prompt." It rejected the college's argument that such delay was reasonable in light of Thanksgiving break, final exams, winter break, and a one-week illness of the complainant.

Alone this violation may not seem like a big deal, and even OCR noted that the delay did not seem to result in the further harassment of the complainant.  But the agency also pointed out that when it looked at 16 other sexual harassment/misconduct complaints resolved by Elmira between 2012 and 2016, it found some "violation or concern" in all but one of them, "including instances where the college failed to provide prompt and equitable investigations and took insufficient measures to assess and address the impact of harassment and possible hostile environments." In other words, a pattern of getting it not-quite-right.

As a result, OCR and Elmira agreed that Elmira would commit to training for its Title IX coordinator and other staff members who play a role in the grievance process. The college must also review its own investigations that have occurred more recently than OCR's investigation, to ensure that they were conducted in a prompt and equitable manner.

And Princeton makes...

...three. As in the third Ivy League university to suspend a sports team this semester over racist, misogynist, and generally offensive messages among members. It is the fourth team when counting non-Ivy Amherst.

Princeton's swimming and diving team has been banned from competition pending an investigation which will inform administrators' decision over whether to cancel the rest of the season.

Like at Harvard, the comments were about members of the women's team. But other than that we do not know much. Unlike at Amherst, where the comments were revealed via a student publication, the issue came to the attention to the administrators via an anonymous complaint.

It is possible some comments will be leaked. I don't think we really need to know exactly what was said to see that the genie is out of the bottle. These are not going to be isolated incidents.

So while some people wait to see if Princeton officials will cancel the swim team's season, I am waiting to see how these events and the ones that will follow will be framed. Will people make a connection between the athlete culture that produces the athletes who write and disseminate these message and the sexual assault epidemic on college campuses? Will we start to look at "locker room culture" and think about sports beyond football and basketball? All the teams reprimanded/suspended/cancelled have been non-major teams--and at schools that are not considered "big-time college sports" schools. (I am not saying that athletes at these schools do not work as hard or as not as dedicated or that their sports are not important. I am speaking to the larger culture and categorizations of intercollegiate sports.) Will Title IX be used as a remedy or a consideration in these cases? Will we be able to talk about not just gender but race and sexuality and class as we engage in discussions?

So many questions. I suspect more cases will emerge before we start to get at answers.

An end to the Winston saga

In a rather unsurprising move, a settlement has been announced in the case of former Florida State University students Erica Kinsman and Jameis Winston. Kinsman's lawsuit against the former FSU quarterback and current Tampa Bay Buccaneers QB (and Winston's countersuit) has been resolved via an undisclosed settlement. The trial, a goal of which was to hold Winston accountable for raping Kinsman four years ago, was scheduled for April 2017.

No one else held Winston accountable. Local and university police did not investigate properly and the lack of police evidence and interference in the investigative process meant the state attorney general could not effectively prosecute him. FSU also failed to investigate; held a ridiculous student conduct hearing overseen by a former federal judge who had no idea how to run such a hearing; and then found that there was not evidence (over a year later--in violation of Title IX's 6-month time frame) to suggest the sex was not consensual.

As an outsider who closely followed this case, the incompetence, the denial, the misogyny, and overall disregard for student welfare was immensely frustrating. There is little to suggest that FSU has realized the error of its ways or that the culture of Jimbo Fisher's team has changed.

I am not suggesting that the settlement was unwise or that I believe a trial would have produced some desired result. I do think that Winston benefited immensely from the settlement in terms of PR. He has been scandal-free since joining the NFL and Bucs fans seem to love him. A trial that brings up his past might remind (or inform) some people of what he got away with. He learned well from his alma mater that image is everything and paying to make image problems go away is worth it.

As a reminder, Kinsman tells her story in the documentary The Hunting Ground.

On suspending seasons

Yesterday, Amherst College suspended all team activities for the men's cross country team after a student publication revealed social media messages and emails to incoming team members that included racist. misogynist, and homophobic comments.

Last month, Harvard suspended the men's soccer season in the wake of revelations that the team has continued its practice of ranking first-year members of the Harvard women's soccer team in sexually explicit ways.

In a few weeks, the Baylor football team will play in the Motel 6 Cactus Bowl against Boise State despite accusations of sexual assault by 17 women against current and former football players and a clear evidence of cover-ups.

One of these things is not like the others.

Things have been brewing, arguably boiling over, at Baylor for some time, which is why Paul Finebaum, ESPN commentator, expressed outrage last month that the team had not been suspended. Finebaum said on-air that Baylor's football season should have been suspended in light of its many misdeeds (chronicled here--and everywhere). Finebaum was calling for the Big 12 to issue the suspension because neither the NCAA nor the university itself will do so. The NCAA is not planning  anything in response to the cover-up of the sexual assaults and to an institution that does not have control over its athletics program. Baylor hired a law firm to do an external investigation and then failed to make changes and refuses to acknowledge a culture of sexual hostility and athlete privilege.

The two events at Amherst and Harvard have commonalities: introduction of the first-year class into team culture using offensive discourse; elite, private schools; men's "minor sports"; both schools will conduct investigations into the matters.

At Harvard the offense was directed at the women's soccer team; a betrayal of what many of the women felt was a familial (non-sexual) relationship. Since the soccer scandal was revealed, it has come out that similar practices have occurred within the men's cross country team. The initial response was meh. The athletic director said Harvard would handle it internally and by trying to make it less of a media thing--he made it more of a media thing. The additional findings that 1) players were not being "forthcoming" about what was happening and 2) it was still happening forced the AD as well as the university president to make stronger public statements and ultimately cancel the season. Investigations are ongoing.   

At Amherst, it does not appear--at the moment--that the commentary was directed at a female team. A June 2015 list of female students has surfaced that includes pictures and comments about their sexual pasts, including guesses about STD infections. The incidents in question are from 2013-15. Of course, as we saw at Harvard, these things often do not just disappear on their own, even when there is new leadership--as there was at Harvard when they hired a new soccer coach a few years ago.

Also, the cross country season is over. "Team activities" would likely include team banquets or coach-led practices, but it's finals week at Amherst, and I assume there is not much on the docket for the team. So now Amherst must decide how to proceed. Will athletes involved be individually punished? Will the be prevented from running next season? Many cross country runners will also run indoor and outdoor track. Will team members be allowed to compete for their other teams? To its credit, Amherst, under its (not so new anymore) president, has taken issues of sexual assault and harassment more seriously than in the past. The school's response was immediate and the AD and president are seemingly on the same page. I hope this one does just fade away. Investigations are ongoing.

What have we learned? Well male privilege and sexual misconduct are not just the province of football players. This is obvious when taking a broad look at the cases of harassment and assault involving athletes. Baylor gets the most attention because it is a big-time football program. (There is also the issue of adherence to "Christian values" that are the alleged bedrock of the institutional mission; this has received less attention.) So what it looks like is that there is more at stake at Baylor--for the athletes, for the coaches, for the school. I do not agree with this view because what I know for sure is that the stakes are the same for the women who are the victims of these athletes and for potential victims. They are on campuses where sexual violence is a known reality (as it is on most campuses). The crimes and misdemeanors may be different and, at the individual level, the effects on victims may be different (in part because of school response). But all these schools have a climate of sexual hostility and it is manifesting in their athletic departments, among their male-student athletes (and probably at higher levels as well). And this means that students do not feel safe at their schools.



PS. More on Baylor:

The university received word this week from the Southern Association of Colleges and Schools, an accrediting body, that it would be monitoring Baylor's ability to 1) maintain institutional control over intercollegiate athletics, 2) create a safe and healthy environment for students, and 3) provide adequate student support services.

In other words, while there are a lot of external pressures on Baylor, it continues to do very little. Baylor fans might say that ditching Art Briles was enough. Finebaum, and many others, do not think so. Firing Briles (who is suing the school for libel) was cleaning house. It is was not shoring up the structure of the house. In fact (to continue to metaphor) Baylor brought in a temporary coach, Jim Grobe, who seemed to be predisposed to making things dirty again and further weakening the structure. (Based on comments during his early press conferences and interviews.) The new coaching staff has been named. We shall see what those press conferences bring.

Investigations are over.

PPS. Columbia wrestling
I knew I forgot something! Columbia University (also elite, private) suspended its men's wrestling team ("minor sport") after some members' racist and misogynist texts were discovered. Columbia completed its investigation last month. While the investigation was pending, members were not allowed to compete. The team was still practicing.

The messages were sent in a group message format. Those not participating in the group message were allowed to resume competition. Some members were suspended for the rest of the season. Others were suspended until the start of spring semester.

Notable in this case: former assistant coach Hudson Taylor who founded Athlete Ally, a group that supports LGBT athletes, took some responsibility for the culture that engendered these messages:

"[The actions] are a reflection of our culture and my coaching. I apologize to the Columbia campus, to the alumni, and to my former wrestlers for not doing more to develop them into young men of better character.”

A Roundup of Disciplined-Student Cases

In three separate cases, courts issued rulings this week that address claims by students disciplined for sexual assault that the university's process for administering discipline was biased and/or procedurally unfair. A summary of each is below.

Doe v. Ohio State University.  In this case, Ohio State expelled a male student for having sex with a female student who could not consent due to incapacitation by alcohol. He sued the university and several university officials in federal court. This week, the court granted the university's motion to dismiss the constitutional and Title IX claims against it because state entities like Ohio State enjoy sovereign immunity from suit in federal court.  The sovereign immunity doctrine has an exception for cases where the plaintiff seeks prospective relief, such as reinstatement, but because the plaintiff did not request reinstatement, that exception does not apply.

Additionally, the university officials moved to dismiss the claims against them in their personal capacities on the grounds of qualified immunity.  Under this doctrine, state officials are only liable for violations of constitutional rights that are "clearly established." The court determined the most of the plaintiff's allegations about the deficiency of the process constituted a violation of clear constitutional precedent.  However, the court did not dismiss plaintiff's allegations that the university officials were trained in a biased manner, since if proven, such claims would implicate a clear constitutional right to have one's case decided by an impartial adjudicator.  However, the court cautiously acknowledged that there's a difference between being biased against sexual assault in general, and being predisposed to finding a respondent responsible for sexual assault in a given case. The plaintiff can't satisfy the latter with evidence of the former. However, the court read the plaintiff's allegations as plausible enough to warrant discovery.  The officials would have an opportunity to seek dismissal on summary judgment and have the court determine if the plaintiff has meet that burden of producing evidence in support of the allegations.

Doe v. University of Cincinnati.  Here, a male student was suspended for one year for having sex with a female student without her affirmative consent. He then sued the university in federal court and moved for an injunction that would prevent the suspension from taking effect. The court granted the injunction after agreeing that the plaintiff was likely to prevail on the merits of his argument that the complainant's absence from the hearing deprived him of an opportunity to cross-examine her. While not endorsing a blanket right to cross examination in all student disciplinary hearings, the court did acknowledge the importance of that right in cases like this one where the hearing panel's assessment of parties' credibility was the key factor in its determination. The court also did not insist that when a right to cross examination exists, it must be conducted in person at the hearing. Instead, what made the accuser's absence from the hearing a due process violation in this case was the fact that the respondent did not know in advance that she would be not be present, and thus, was unable to take advantage of other means of cross-examination, such as the submission of written questions that the hearing panel could have posed to complainant in some other way.

Arishi v. Washington State University.  This case stems from Washington State University's decision to expel a doctoral student after he was arrested for child molestation and statutory rape. The student sued in state court to challenge the university's disciplinary procedure as a violation the state statute that imposes procedural requirements on adjudications conducted by state agencies. He argued that he was not allowed a "full hearing" required by Washington's administrative procedure act, which would have provided him the opportunity to cross examine witnesses, present evidence, and be represented by counsel.  The court agreed that state universities are subject to the law and that none of the exceptions warranting an abbreviated hearing apply. The court has ordered the plaintiff's case remanded to Washington State, which must conduct a full hearing if they wish to expel him. According to this news article about the case, the court's decision will mean changes in the disciplinary process not just at Washington State, but 26 other state colleges and universities whose procedures do not constitute full hearings under the state administrative procedures act.

Sex-Segregated Elementary School Violate Title IX, OCR Says

An Idaho elementary school may no longer segregate students by sex after the Department of Education's Office for Civil Rights determined that doing so without evidence-based rationale violated Title IX. OCR's investigation was triggered by the ACLU of Idaho, which filed a complaint against Middleton Heights school district in 2013. The ACLU argued that the elementary school's practice of separating boys and girls from first through sixth grade, including even for some nonacademic subjects, was not tailored to the program's stated objective of closing the gender gaps in reading and math proficiency.  For one reason, the program segregated students for more than just math and reading instruction. But even as it applied to reading and math, the school district's rationale was based upon a faulty premise according to the ACLU, which cited evidence that gender gaps in math and reading at Middleton Heights elementary school had been small or nonexistent prior to the segregation program. Instead, it argued, the school district imposed segregation based on impermissibly "overly broad generalizations" and gender stereotypes, such as that boys benefit from a kinetic classroom environment and girls need calm and quiet. The ACLU's complaint criticized the school district for operating on these assumptions and attributing them to entire genders, rather than making an "individualized assessment" to determine which students benefited from which environment.

The school district actually curtailed its decade-long segregation in June, and reportedly had no plans to reinstate it. To make sure, however, OCR is monitoring the school district until 2020.

UCSD Successfully Appeals Student Discipline Case

This week, the California Court of Appeals overturned a lower court ruling that found in favor of a student, John Doe, who had been suspended from the University of California San Diego for sexual misconduct.  In July of 2015, a superior court judge invalidated the university's suspension after concluding that disciplinary hearing was plagued by prejudicial procedural errors, including limits on his right to cross-examine the complainant and the investigator, as well as insufficient evidence to justify the findings in complainant's favor.

The appellate court disagreed with the lower court's conclusions.  One of the procedural errors that the lower court addressed was the fact that the respondent was not allowed to ask questions directly to the complainant. Instead, the hearing panel asked the questions John Doe had submitted. This was not itself a problem, but the lower court did find fault in the fact that the panel filtered out many of the proposed questions; only asking 9 of the 31 submitted by the respondent. But the appellate court concluded that the rejected questions were unnecessary or repetitive of earlier testimony.  For example, 7 of the rejected questions sought the complainant's admission that she sent certain text messages, which was unnecessary since the text messages themselves were already in evidence. Moreover, Doe did not argue in his appellate briefs how exactly his case was harmed by the hearing panel's exclusion of various questions.

The lower court had also found that that the hearing panel improperly relied on the investigator's report. But, despite John Doe's argument to the contrary, the appellate court recognized that university policies put him on notice of the fact that the report would be used as a factfinding document.  Additionally, though John Doe claimed he was prejudiced by not being able to cross-examine the investigator who wrote the report, the appellate court noted that Doe could have called the investigator as a witness for that purpose, and that he neglected to do so.

The lower court had based its determination of insufficient evidence on its conclusion that the hearing panel should not have relied on the complainant's testimony or the investigator's report, because neither had been scrutinized under cross-examination.  The appellate court, having rejected the alleged procedural errors about cross examination, easily determined that there was sufficient evidence of John Doe's guilt.

Lastly, the appellate court reversed the lower court's conclusion that the university's decision to suspend John Doe was an abuse of discretion, especially in light of the fact that the length of the sanction increased with each of John Doe's internal appeals. But the hearing panel, which only recommended suspension for one quarter, was only authorized to do that, recommend.  The Dean, who sanctioned Doe for a one year suspension, always had the ultimate authority to determine the initial sanction. While the Dean departed from the hearing panel's recommendation, the appellate court found that the Dean's sentence was consistent with university policy. The council of provosts, which considered John Doe's appeal of the Dean's sentence, increased the sanction to one year and a quarter. The appellate court found that the council's reasons were related to the content of the appeal, and not, as Doe claimed, punishment for exercising his right to appeal in the first place.

The lower court has been ordered to deny John Doe's petition for mandamus, which would have canceled his suspension. It is not clear to me what that means for Doe himself, given the time that has already passed while his case and appeal were pending.

New Secretary of Education Announced

The President-elect has announced his pick for Secretary of Education: Betsy DeVos, a public school reform advocate and former chair of the Michigan Republican Party.

DeVos currently chairs the board of directors for the American Federation for Children, an advocacy group committed to school choice through means such as vouchers and tax credits.

Though there is little public information I could find on DeVos from which to predict what her appointment would specifically mean for Title IX enforcement, the few clues I did find suggest that she is unlikely to champion the law's aggressive enforcement. In 2006, a Michigan right-wing watch group compiled a report on DeVos and her husband's philanthropy, which targets many conservative religious causes -- including a $50,000 gift to Grove City College, which notoriously refuses to participate in federal financial aid programs so that it will not have to comply with Title IX. (DeVos's own alma mater, Calvin College in Grand Rapids received a requested Title IX exemption in 1985 that permit the seminary program to limit certain internships to male students, consistent with the policy of the Christian Reform Denomination not to ordain women.  However, unlike many other religiously affiliated institutions, Calvin College has not sought exemptions from Title IX's application to LGBT students.)  The same report also indicates that she and her husband have donated to the Institute for Marriage Policy and the Michigan Family Forum -- groups that opposed same-sex marriage. From this it seems reasonable to predict that DeVos will not continue the current administration's push for Title IX's application to LGBT students. Add to that her financial support for pro-life groups and I think it's fair to say the incoming Secretary is no feminist, and would be unlikely to choose one as Assistant Secretary for Civil Rights.

University of Maryland's Title IX Fee

* There is a lot to say about what last week's election of Donald Trump means for Title IX. I am still gathering my thoughts and reading others'. Meanwhile, I continue with my commitment to public scholarship and advocacy of gender equality in education in this forum as I contemplate how else I can best make change.*

Old news: The University of Maryland student senate voted to implement a fee of $34 per student to help fund the school's "understaffed and overworked" Title IX office. As Erin told Inside Higher Ed, this is the first time we have heard of a university using student fees to fund its Title IX Office.

First thing to note is that, though the SGA approved the fee, it was not a done deal; which leads to...

...newer news: the SGA has decided not to devote student fees to the Title IX office. After the national news attention UMD received, the president held a meeting with SGA leaders and said the university would fund the office. It has committed to hire an additional investigator, two professionals in the health care center dedicated to counseling on these issues, and it will hire a firm to evaluate how UMD handles sexual assault reports. 

Apparently the move by the SGA was one intended to pressure the administration to pay more attention to the issue of sexual assault on campus. And it worked. In addition to the news coverage, state legislators started asking questions about why the burden of funding the Title IX office was being put directly on students.

SGA leaders, however, did say that they would reintroduce the idea of the fee if they did not see the university following through.

Initially it appeared that the university really needed the money from the students. But now money has been found in the budget. The people who work in compliance are pleased with the additional funding. It seems that things have tough in the past few years. The Title IX Office does not even have an office--two years after UMD hired its first Title IX coordinator.

A spokesperson for the university had called the vote to fund the office in part through student fees "a show of support for the important mission of the Title IX office."

The better show of support is the university fully funding its Title IX office and its mission; a mission that it is legally required to undertake. Could they have chosen this method of funding? Yes. But as it turned out the ethics and the optics of this route to compliance drew a lot of questions.

The commitment to the "important mission" was already suspect. Two years without an office? That is a nearly impossible and potentially dangerous situation. One, the amount of paperwork and organization is immense. Managing all of that without a permanent home impedes the ability of staff  Two, there are privacy issues involved. A mobile or constantly shifting office compromises privacy And, if there is no permanent home, how do students know where to go? While there are other reporting options--professors, residence hall assistants and directors, counseling and health services--all of those people, as well as students, should know where the Title IX officer is located.

Though there may be other universities in similar situations (underfunded Title IX offices), UMD's situation made national news. We will likely hear more about how the university chooses to demonstrate its institutional support of Title IX. 

Supreme Court Grants Cert in Title IX Transgender Bathroom Case

Yesterday the Supreme Court partially granted the Gloucester school district's petition for certiorari to review the appellate court's decision that a transgender student had the right to use the bathroom according to his gender identity:

As you can see from the order, the Supreme Court's order limited its review to two questions raised by the school district's petition.  There were three questions on which the school district sought review in its cert petition:

By refusing to grant certiorari on question 1, the Supreme Court has confirmed that it will not use this case to overrule the Auer doctrine. Under Auer, courts must defer to an agency's interpretation of its own ambiguous regulations. In the decision below, the Fourth Circuit relied on heavily on Auer in determining that the transgender student plaintiff could access the boys' bathrooms at his high school. This is because the Department of Education, which enforces Title IX, has a regulation about bathrooms (it permits schools to separate bathrooms and certain other facilities by sex) but that regulation is silent about its application to transgender students. The Department has since interpreted that regulation to resolve that ambiguity to require schools to permit transgender students to access bathrooms consistent with their gender identities. As an interpretation of an ambiguous regulation, the Fourth Circuit determined, the court deferred to the agency's position on the matter.  It did not pass judgment on the agency's position; it simply recognized that the agency is the proper body to make that call.

In denying cert on the question of whether Auer deference is proper, the Court has made it considerably harder for the school district to prevail. It will only examine whether the Fourth Circuit properly applied that doctrine in this case.  Notably, most of the school district's arguments that it did not target the fact that the agency's interpretation was contained in a limited-purpose opinion letter and was arguably not meant to have broad application. Since that time. the agency has promulgated a broadly applicable guidance document on this issue. Even if it was improper for the Fourth Circuit to have deferred to that opinion letter, it is not necessarily improper for other courts in future cases to defer to the guidance document.

Additionally, it is worth noting that the Supreme Court presently has only 8 justices. The vacancy left by the death of Justice Scalia will not be filled before this case is argued sometime this winter or spring. I can think of three Justices who are likely to be sympathetic to the school district's arguments.  But they would have to get two more to the join them for the school district to win, because a 4-4 tie leaves the Fourth Circuit's decision in tact.

Finally, for some historical context, the Supreme Court has decided Title IX cases 8 times in its history. In all but one of those cases, it ruled in favor of the party seeking to challenge discrimination and advance civil rights.

Title IX Used to Challenge Anti-Gay Utah Law

This week LGBT rights activists in Utah filed a lawsuit challenging state law that prohibits schools from including instruction on the advocacy of homosexuality in the curriculum, which the state Board of Education has interpreted to apply broadly to "any course or class." The lawsuit also targets provisions of state law that withhold support and recognition from student clubs whose activities involve or express "human sexuality." The lawsuit's primary arguments are that by singling out homosexuality for exclusion from the curriculum, and LGBT groups for the withholding of school support, Utah's laws violate students' constitutional rights under the First and Fourteenth Amendments, including equal protection, free speech and association, and the right to receive information. In addition to the constitutional claims, the lawsuit argues that the anti-gay state laws force local school districts, some of which are defendants, to violate Title IX by foreclosing LGBT students' rights to equal educational opportunities. The lawsuit charges that the state law violates Title IX because it forces school districts to "foster a hostile and censoring environment of silence and non-acceptance for LGBT students" and by "subjecting them to stigma and harassment based on sex, including actual or perceived gender non-conformity, being in a same-sex relationship, or being transgender." The lawsuit also claims that one of the school district defendants violated Title IX by ignoring severe harassment that students directed at one of the plaintiffs in the case, whom they perceived to be gay, a claim that helps illustrate the potential for discrimination in the curriculum to negatively affect school climate in ways that cause tangible injuries to LGBT students.  

Illinois Parents Fail to Block Transgender Student's Use of Locker Room; Judge in Texas Reaffirms Nationwide Injunction Against OCR's Transgender Guidance

Federal courts all over the country are hearing challenges to the Department of Education's position that Title IX prohibits educational institutions from discriminating against transgender students and excluding them from single-sex facilities and programs that they seek to access in a manner consistent with their gender identity.  This post will cover two key developments in separate cases that occurred this week. 

In one case, a federal magistrate judge in Illinois rejected efforts of parents to prohibit Township High School District from accommodating a transgender student's right to use the girls' locker room, which is consistent with her female gender identity. The school district developed an inclusive policy pursuant to an agreement with the Department of Education that resolved the agency's finding that excluding the transgender student violated her rights under Title IX. The group of parents sought an injunction against the policy by challenging the Department of Education's guidance document that contains its interpretation of Title IX's application to transgender rights. It also alleged that the school's inclusive locker room policy violated their children's constitutional right to privacy, but failed to convince the magistrate to offer relief on either ground. As a result, the school district's policy that permits the transgender student to use the girls' locker room remains in effect.  

As to the Title IX issues in particular, the magistrate -- whose role is to make a recommendation to the federal district court judge -- determined that the parents did not have the requisite "likelihood of success on the merits" necessary for such an injunction to issue.  The magistrate noted that many courts are adopting broader understanding of sex discrimination as defined by Title IX and other civil rights laws to encompass discrimination targeting transgender individuals. Even the Seventh Circuit, which has jurisdiction over the federal courts in Illinois, may be poised to overrule its very influential 1984 decision that foreclosed Title VII's protection to transgender plaintiffs. (The appellate court very recently vacated a panel decision that declined to overrule that earlier case, signaling the possibility that the full court will do so when it rehears the case en banc.) Thus, the magistrate concluded, it is not apparent that the plaintiffs are likely to prevail on their argument that the Department of Education contravened Title IX when it promulgated the transgender guidance or when it entered into the resolution agreement with the school district that incorporates the agency's interpretation in the guidance. Similarly, it is unlikely to prevail on its argument that the agency should have used notice and comment procedures to promulgate the transgender guidance, since it appears to be an interpretation of existing requirements under Title IX and its regulations, rather than a new obligation.

The magistrate acknowledged the ongoing litigation in Texas that is also challenging the validity of the Department's guidance about Title IX's application to transgender rights.  Like the decision from Ohio that we blogged about recently, the magistrate in this case determined that the Texas federal court judge's issuance of a nationwide injunction against the guidance has any bearing on this case. 

Coincidentally, however, the second decision of note this week pertains to that same injunction. The federal judge in Texas rejected arguments by the Department of Education to narrow the scope of that injunction to apply only in the 13 states that are plaintiffs in the Texas case, and reasserted that the Department of Education is “enjoined from using the Guidelines or asserting the Guidelines carry weight in any litigation initiated following the date of [its August 21, 2016] Order." 

The two decisions this week are certainly in conflict, as the nationwide injunction is premised on the judge's acceptance of the argument that the transgender guidance is most likely not an appropriate interpretation of Title IX, while the decision in Illinois suggests that it likely is. This fundamental inconsistency could be resolved through the process of initials appeals, in the event that the circuit courts eventually agree to consistent answer to this question.  Alternatively, however, any circuit split that develops would increase the likelihood of the Supreme Court tackling this matter once and for all.  

Meanwhile, however, as recent decisions from other district courts have demonstrated, other courts seem skeptical of the power of one federal judge to affect litigation elsewhere. As the Township High School District demonstrates, that injunction is not interrupting enforcement of the guidance in earlier cases. Nor, as evidenced by the recent decisions in Ohio and Wisconsin decision, does it appear to interrupt efforts of transgender students themselves to assert a right to bathroom usage under Title IX. 

OCR Says Wesley College Violated Rights of Student Accused of Sexual Misconduct

Today the Department of Education's Office for Civil Rights announced an agreement with Wesley College in Delaware that resolves certain violations of Title IX that the college has committed in its response to sexual assault cases. The agreement is unique in that it is the first time the agency has resolved a complaint filed by a student who was accused and disciplined for sexual misconduct. The agency agreed with him that the process the school used to adjudicate his case, and ultimately expel him, was not "equitable" as required by Title IX.

In 2015, someone (or someones) planned and broadcast a live stream video of a male student having sex with a female student at a college fraternity house without the female student's knowledge. Witnesses to the live stream named the accused student as one of those who had orchestrated the live stream, along with other members of his fraternity. Based on these reports, the college immediately issued an interim suspension, without undertaking any kind of preliminary investigation, such as interviewing the accused student. This was in direct violation of the college's own policy, which provides accused students with an opportunity to share their side of the story before an interim suspension can issue. This was also one of several aspects of the college's violation of Title IX's requirement of an equitable response, according to OCR.

Next, an investigator prepared a report for the judicial hearing without interviewing the accused student, an additional policy violation.  Relatedly, the college also skipped a preliminary "conference" that was required by college policy, which would have also given the accused student to tell his side of the story.  Meanwhile, the college failed to provide the accused student with accurate information about the hearing process. This misinformation, combined with the fact that the college failed to hold the preliminary conference, caused the student to believe that the judicial hearing that determined his responsibility was actually the preliminary conference. Owing to this confusion, he did not bring witnesses or otherwise prepare a defense to his hearing.  This collection of errors was cited by OCR as an additional examples of inequitable conduct by the college.

The hearing itself was also plagued with errors.  For one, the college had not provided him with an advance copy of the investigator's report and other key evidence, despite being required by its own policy to make such evidence available to both parties. Another error occurred when the accused student was not allowed to hear the testimony of the other students who had been charged.  The testimony of these students, who named him as a participant in the live-stream planning, was the only evidence that supported the board's finding him responsible.  However, the accused student was denied the opportunity to hear or question their testimony. Finally, OCR noted that only six business days had passed between when the accused student received notice of the charge against him and the college's decision to expel him. The college's own policy contemplates a longer time frame that permits respondents with adequate time to prepare to participate in the process.

In addition to finding the process in the accused student's case to be inequitable, OCR examined the records of other adjudications by the college and found evidence that some of these problems are widespread. Specifically, the college appeared to impose interim suspensions without preliminary investigation in other cases as well, and also had a habit of depriving accused students of the opportunity to present witnesses and other evidence.

OCR even found that the college violated the rights of complainants, such as by failing to provide appropriate interim remedies like counseling and academic services, and by failing to provide complainants with written notice of the outcome. The college also failed to provide sufficient notice and dissemination of its policies, information about the Title IX Coordinator, and information about how to report sexual assault.  In this respect, Wesley College hardly looks  a college that is "overcorrecting" the problem of sexual assault. It is not satisfying the Title IX right of the complainant OR the accused.

I am glad to see that OCR is using its enforcement power to ensure that respondents as well as complainants have the right to an equitable process. Such fundamental fairness is of course important to students who are accused.  It's also important to complainants that respondents are treated fairly, since procedural errors introduce the risk that a punishment could be invalidated on appeal. Moreover, I think it's helpful that OCR is clarifying that Title IX is not to blame when institutions deprive accused students of fair investigations and hearing.  Clearly, Title IX does not require such unfair procedures, and in fact, Title IX is violated when they occur.

Disciplined Student Prevails Against Brown on Breach of Contract Claim

Last week a federal judge in Rhode Island concluded a bench trial in a case between a John Doe plaintiff and Brown University who sued the university after he was suspended for sexual misconduct.  The only issue that the trial addressed was whether the university breached its contractual obligation to John Doe in the manner that it conducted the process by which he was found responsible and disciplined. In siding with the plaintiff, the court made clear that it was not concluding anything about the merits of the complaint against Doe.  It also expressed alarm that Brown students had orchestrated an email campaign directed to the judge to criticize his earlier decision that allowed Doe to remain on campus while his case was pending, and hoped that these students would read the decision and be educated about the role of the courts in such matters.

As for the breach of contract claim itself, the court first acknowledged that the Student Handbook, including the Code of Conduct, form the basis of a contract between a student and the university. In this case, the conduct for which Doe was suspended occurred in 2014, so his case should have been governed by the policy and process contained in the 2014-15 version of the Code of Conduct.  Brown has subsequently updated its policy to provide a definition for consent, which was absent from the 2014-15 policy, but it applied the newly-codified definition of consent when it adjudicated Doe's case.  The new definition clarified that that consent could not be obtained through "manipulation," and the charge in Doe's case was that he had manipulated another student to have sex. (In fact, he had admitted to such "manipulation" in an incriminating text message.)

Brown argued that the consent definition merely "codified community standards" of consent, and therefore did not materially change the 2014-15 Code. But the court determined that a reasonable student would not have expected in 2014-15 that sexual activity to which another had been manipulated to consent violated the Code of Conduct. The Court acknowledged that this case was a "close call" and that the problem it acknowledges is limited only to those cases that occurred prior to the change of definition.  As such, it is not an indictment on Brown's sexual assault response or, for that matter, on Title IX.

Though the court invalidated Brown's decision to suspend Doe, it acknowledged the university's right to hold another hearing using the 2014-15 Code. Presumably, this would mean instructing the panel to apply a common sense/ common understanding of consent, as they had done prior to the Code's incorporation of a specific definition.  It is possible that under such a definition, the "manipulation" in question negates consent, but hearing panel could decide otherwise.

Throwback Thursday, aka Updates

UCLA settled a lawsuit last month with two graduate students who alleged that administrators discouraged them from filing a formal complaint against a professor who sexually harassed and assaulted them. The settlement includes a financial settlement, part cash as well as a year-long dissertation fellowship to one of the plaintiffs. The situation for the history professor they accused of unwanted sexual advances has been in flux since the women initiated their complaint in 2013. He was suspended without pay for a quarter and resigned his position as director of the Center for Near Eastern Studies. He resumed teaching, but is not teaching this fall. He is scheduled to teach in the spring. He is not allowed to use his history department office during the week. His office hours are being held in a library on campus and he is being required to keep the door open while meeting with students. He is not allowed to have contact with one of the plaintiffs. (It seems the other has graduated.) He has to pay the UCLA Board of Regents $3,000.

The saga at Baylor continues, probably because they keep doing ALL THE WRONG THINGS. Granted they cannot control the behaviors of the people they have fired who continue to talk to the media. Though I am curious as to why Art Briles sat down with ESPN whose reporters have not been kind to the school if the many, many segments on Outside the Lines are any indication. The way Briles and former President Ken Starr have proceeded since their release is an interesting study in voice and silence. Sexual assault is a very silencing experience and only a few of the women who have joined the lawsuit against Baylor have spoken about their experiences. Some have asked to speak personally with Briles who said he has been prevented from doing so under terms of his release (his very lucrative release). So he cannot speak to them but he can speak publicly--about some things--the things he wants to talk about; the things he thinks will rehab his image and get him another coaching job next year.

Starr seems to be trying to help his friend, Briles, on this quest. He said in a room full of reporters in Texas that Briles was "honorable" and "unfairly criticized." He also said, in reference to the sexual assaults (apparently there is no gag order on him) that it was not a problem with the culture of Baylor or Baylor football. He was called out by a reporter who thought it hypocritical that Starr could address a culture of alcohol abuse on his campus but not sexual assault. And still these men get public platforms. The good(ish) news? Well all the talking is not helping public image. I have seen stories from sports journalists warning schools that might in the market for a new football coach to avoid Briles.

And now the Title IX coordinator has resigned. Patty Crawford, at Baylor since late 2014, said she was being prevented from implementing the changes outlined in the Pepper Hamilton report--the one Baylor itself commissioned when news of the sexual assaults became public. Crawford's resignation, her filing of a Title IX complaint with OCR, and her stories about how Baylor continues to violate the law suggest what many of us suspected: that report was a PR move. Who are they going to get to do that job? How are they going to explain themselves when OCR heads to Waco? Oh never mind. They promoted from within--of course:
               On Monday, Baylor said it had filled Crawford's post by promoting senior deputy                 coordinator Kristan Tucker, whom interim president David Garland called "a capable and experienced Title IX professional." (from ESPN article linked above)

It also appears that a Title IX investigator, one of two employees charged with investigating Title IX violations on campus, is no longer at the school. Whether she resigned or was fired is unknown.

On the same day that Crawford resigned, two more women joined the lawsuit against Baylor. That brings the total to eight. Only one of the eight women was raped by an athlete. The culture of sexual assault--that does not exist, according to Starr--is not confined to athletics.

The watered down California bill about LGBT discrimination at private colleges has passed. Governor Jerry Brown signed the bill which requires private schools to publicly post their gender and sexuality policies and to note any Title IX exemptions they receive from the Department of Education. The bill was originally written to prevent these schools from discriminating against LGBT students, but the outcry from religious schools and groups resulted in the compromise bill signed last week.

Coach Wins $3.35 Million Jury Verdict for Retaliation

Last week we blogged about the trial between San Diego State University and its former women's basketball coach Beth Burns.  Burns was suing on the grounds that she was wrongfully fired from her job and for reasons that involved retaliation for her complaints about gender inequality that affected her team.

By way of update to that earlier post, we learned this week that the jury did not accept the university's argument that Burns was fired for legitimate reasons, and awarded her $3.35 million in damages.

Though we haven't had one on the blog in the last couple of years, this case is part of a broader trend over the last 10 or so years or so, where retaliation proves a successful litigation strategy for coaches who are terminated or face other reprisals on the job. It also seems to be a trend that when coaches win retaliation claims, they win big.

Another Court Requires School to Accommodate Transgender Student's Bathroom Use

On the heels of a similar post from last week, another federal district court has enjoined a school district's policy of banning transgender students from using the bathroom that matches their gender identity.  An elementary school student in Ohio, a transgender girl, will be able to use the girls' bathroom while she litigates her permanent right to access gender-appropriate facilities under Title IX. Similar to last week's ruling, this court recognized the plaintiff's likely success on the merits of her claim as well as irreparable harm in delaying the remedy of a court order.

Simultaneously, the court in this case considered and denied the school district's motion to enjoin the Department of Education's enforcement of its interpretation that Title IX covers discrimination against transgender student. In this regard, the court's opinion contrasts with a federal district court decision last month that granted the state of Texas's motion to enjoin Title IX's enforcement.  Notably, the court in the current case was not deterred by the purported "nationwide" scope of the Texas injunction:

Because Ohio was not a party to the Texas litigation, and because this litigation was initiated before the Texas court issued its preliminary injunction, the injunction does not apply here. This is also consistent with the Supreme Court’s admonition that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” 

The court in the Ohio case conducted a thorough analysis of Title IX's enforcement mechanisms before determining that it does not have jurisdiction to conduct pre-enforcement review of the Department of Education's policy. Title IX expressly provides educational institutions with the ability to appeal to the federal courts after the agency orders withdrawal of their federal funding for violations of Title IX.  The court determined the availability of post-enforcement judicial review precludes earlier review.  The court drew parallels between Title IX's statutory provisions governing enforcement actions and judicial review to the analogous provisions in another statute (the Mine Act) that Supreme Court concluded similarly precluded pre-enforcement judicial review, while distinguishing it from another statute (the Clean Air Act) in which the Supreme Court permitted pre-enforcement judicial review.

We now have two district courts with competing positions on whether the Department of Education's transgender policy is vulnerable to injunction. Showdown!

Title IX Retaliation Case Heads to Jury

This week, jurors in San Diego will decide if San Diego State University committed unlawful retaliation when it fired women's basketball coach Beth Burns in 2013.  At the time, Burns was a veteran head coach with a long success record and who had just posted a record number of season wins.  She was also just nine months in to a 5 year renewed contract, and was making well over 200,000 a year.  Her past performance evaluations praised her for running a solid program and doing an "excellent job."

So why was she fired?  That is what the jury will have to decide after today's closing arguments summarize a month-long trial's worth of testimony. At the time Burns was fired, university officials cited as "sole cause" for her termination an incident in which she slapped her assistant coach's knees with a clipboard as they watched a game from the sidelines. At trial, however, witnesses for the university testified that Burns had a long history of treating her colleagues and employees with anger and disrespect.

Burns, on the other hand, testified that she was fired because she blew the whistle on unequal treatment for the women's athletics, including her team.  Reportedly, a key piece of evidence in her case is an email between the (then) athletic director and a former university vice present that describes Burns as "driving us crazy w complaining."

Other questions raised a trial include: Why did the former athletic director destroy the notes of a key meeting about Burns with a university vice president? What did the president mean when he brought up Bobby Knight (former Indiana coach famous for his temper) in his testimony?  Was Burns sabotaged by a member of her own staff who was working in cohorts with an associated athletic director to create a biased record of the coach's behavior? And of course, the question of whether the the university can credibly claim that Burns was fired for "misconduct" begs the question, was her conduct in fact a departure from athletics-cultural norms?  (As one witness testified, "What most people call yelling, we (in athletics) call communication.”)

The jury is expected to receive the case on Tuesday, and will take however long it needs to render its verdict, to which nine of twelve jurors must agree.

Note: This is not the first retaliation case we've blogged about against San Diego State. In 2007, the university was sued by a former women's swim coach. She alleged that she was fired for complaining about gender inequality and sexual harassment. The university claimed that she was fired for poor performance, though, remarkably, the athletic department had closed the pool for seven years, making it difficult to produce a winning record!  Eventually the university settled for $1.45 million dollars.

High School Must Permit Transgender Student's Use of Boys' Bathroom While Litigation Proceeds

A transgender student in Kenosha, Wisconsin, has won a temporary injunction against the school district that will permit him to use the boys' bathroom in accordance with his gender identity while a court decides the merits of his claim that exclusion violates his rights under Title IX and the U.S. Constitution.  Because the plaintiff's birth-assigned sex is female, his high school had been insisting that he either use the girls' restroom or an out-of-the-way single-user facility. Additionally, the school made headlines last spring when they reportedly announced a policy that transgender students would have to wear green wristbands to help school officials determine any bathroom infractions.  (It is not clear to me whether this policy actually took affect.)

Earlier this week, the court denied the school district's motion to dismiss the plaintiff's case, which allows the case to proceed to the next stage of litigation, and eventually a judgment on the merits or a trial. Then, it granted the plaintiff's motion for a preliminary injunction, which grants him access to the boys' bathroom while his case is pending. The legal standard for a temporary injunction requires the court to decide that the plaintiff is likely to win on the merits, as well as that he will face irreparable harm if the relief he requests is delayed.  On the second point, the judge reportedly considered experts' testimony about the psychological harm that transgender individuals experience when their gender identity is denied.  

Last year a transgender student in Virginia won a court order that permitted him to use the bathroom according to his gender identity, but the Supreme Court issued a stay that delays the effective date of that order while it reviews the case.  Notably, however, the Supreme Court's stay did not involve a preliminary injunction and addressed a case that was further along in litigation than the Wisconsin case. So the issuance of a stay in that case does not necessarily dictate a similar outcome here.

UNH's Million Dollar Scoreboard

As an alumna of the University of New Hampshire, as a scholar of sports, as an educator and advocate for education, I am disappointed in the university's choice to spend $1 million of a $4 million donation to a scoreboard for the new football stadium.

The gift is from the estate of Robert Morin, an alum and employee of the school who spent his 50-year career as a library cataloger. People were shocked that Morin had accumulated such an amount throughout his life and then that he left it all to the university. It gave many of us those warm, fuzzy feelings about our alma mater or respective alma maters.

Morin only restricted $100,000 of the donation--earmarked for the library--so UNH technically did not violate any restrictions on the money, though many, myself included, believe they violated the spirit of the donation. Another million lost in the football arms race. Wasted by an institution trying to be something it is not--a big-time football school.

I have complicated feelings about the morality of football, especially college football, in an era of academic and recruiting scandals and a moment when we must acknowledge the trauma of the sport, and the disproportionate effect of that trauma on poor men and black and brown men. But I am not inherently opposed to some of the money going to the football program. I am opposed to it going to a scoreboard which, in the age of planned obsolescence, will be out of date in 5? 10? years. Use it to endow a scholarship for a player who wants to go grad school maybe. For tutoring or other academic enrichment opportunities if you want to use the money in athletics. Pay it forward; make it meaningful.

In addition to the fact that this spending seems neither fiscally nor morally responsible, it may have Title IX repercussions. I have not seen the scoreboard nor have I seen the athletic department's budget this year, so I cannot say for sure, but if that scoreboard can only be used for football, it is benefiting only male athletes. Even if it can be used for other sports, it still likely benefits more men than women. So I am wondering if the university has earmarked $1 million that will go towards increasing the quality of the experience of 120ish female student athletes. New turf for the field hockey team? Chartered flights for the soccer team?

Yes, because Morin did not earmark most of the money, the university could spend it in athletics. But spending money in athletics comes with its own set of rules--including compliance with a federal law.

Frostburg State Agrees to Title IX Compliance

Today the Department of Education's Office for Civil Rights announced an agreement with Frostburg State University in Maryland that will obligate the university to address violations of Title IX revealed by an OCR investigation of 40 incidents of sexual harassment and sexual assault that the university had a responsibility to address.

In a press release, OCR summarized some of the university's violations as follows:

Required reporting by mandatory reporters that were not made even though they had notice of an alleged rape. 

Reported off-campus incidents and incidents involving non-student victims or perpetrators that were not investigated or were not fully investigated. 

Repeated violations of a no contact order that were not properly addressed and adequate steps to safeguard the victim were not taken. 

Sufficient interim measures that were not provided to victims. 

Requests for confidentiality that were not balanced against the need to keep the community safe. 

Title IX investigations that were not launched due to an improper reliance upon local or campus police investigations and reports.

In addition, the university resolved a complaint informally that should have gone through a formal hearing process, and took 10 months to resolve another. In one case, the university failed to conduct its own independent investigation of a matter that it instead referred to local law enforcement.  And while recent revisions to the university's policy for addressing sexual harassment and sexual violence complaints addressed most of the earlier shortcomings, some deficiencies remain.

In the agreement, the university agrees to bring its policies into compliance, conduct additional training, reimburse two complainants for the cost of counseling and academic services that the university should have provided, address identified failures to conduct adequate investigations, provide written notice of remedial services, and provide written notice of the outcome of the complaint investigation to the parties, conduct its own retrospective review of sexual harassment complaints to determine whether the investigation was prompt and equitable, and enhance its outreach and climate assessment efforts.

·   

In the wake of Brock Turner's release...

There was a protest outside of the country jail in California last week when former Standford student-athlete Brock Turner was released after serving 3 months of his 6-month sentence for sexually assaulting an unconscious woman on campus. That protest centered largely on the judge responsible for the lenient sentence who protesters are trying to get removed from the bench. These types of actions have been occurring since Turner's sentencing.

The protests have moved east, but they look a little different. Outside of the Turner family home in Dayton, Ohio where Turner will be on probation and have to register as a sex offender, which news reports say he has yet to do, are armed protesters. Armed with guns. There are signs as well calling for Turner's (and other rapists' ) castration.

Where to begin?

First, as I have noted previously, this is not a Title IX case. It is, however, a case of a violent athlete and the privilege conferred by being an athlete (and, in Turner's case, a white, class-privileged athlete). It is relevant because athlete privilege often affects how Title IX procedures are carried out (or not). Also, given reports about Turner's behavior coming from female members of the swim team, there was probably a Title IX case in there if someone had chosen to pursue it.

What I am more interested in regarding these protests is the violence of them. The threat of personal harm, all extralegal, is disgusting. Turner did something horrible and disgusting; so did the judge that handed down the 6-month sentence. Protesters with large guns and signs suggesting that Turner should be raped or castrated do not make any of it any less disgusting. They do not right the wrongs.

Are the protesters suggesting that vigilante justice is more fair than the system to which Turner was subjected? I know there have been a lot of superhero movies this summer, but the romanticization of vigilantism is just that, romanticized. And it is without context--especially historical context that includes its use against racial, ethnic, and sexual minorities. Vigilantes have used guns and castration and rape to keep people in their place when they thought the law was not doing enough or that these extralegal actions could serve as a warning.

So why these actions?

It goes beyond vigilantism. These protests and the symbols and words being used are a means of reifying a masculinity that is still violent and still sexually violent. In other words, it is not questioning the level of violence in our society, it is suggesting that certain forms of violence are more acceptable than others. Castration is sexual violence. The rape of men is sexual violence. Guns are symbols and weapons of violence. And they are all about the power of men. What these protesters are suggesting is that their form of violence, encouraged by state-sanctioned gun use in the form of Ohio's open carry law, is real masculinity. Turner's form of violence--sexually assaulting an unconscious woman--is not a proper display of masculinity. Slinging a semi-automatic across your body and standing watch outside the home of a convicted rapist is an acceptable use of violence, based on these displays.

This is also about class and class-based masculinity. To some people, including those standing outside his house, Turner is not doing masculinity in an acceptable way. His class privilege, his sport (swimming), and the nature of his crime all contribute to the perception that Turner is not the right type of masculine. Hegemonic masculinity, how it is created and embedded in society, is on display on that sidewalk.

Amid all this violent masculinity, where is the concern about the woman who was raped? About women who are and will be victims of sexual violence? Where is the challenge to rape culture and to the culture of violence more generally? It is missing. It is all missing from that protest, which is sadly ironic but very much proof that this is not about the sexual violence perpetrated against women.

There are no apologies to be made for Brock Turner, and he has already been granted too much leniency. His enactment of violence and the protesters' enactment of violence are both tied to violent masculinity, and violent masculinity is at the heart of rape culture.

Updates

University of Florida:
The student hearing of football player Antonio Callaway went as predicted. The outside arbiter found him not guilty of sexual misconduct.The victim, protesting the use of arbiter who is an alum and contributes money to the football program, boycotted the hearing.
It is unclear whether the victim plans  to take any additional action. Callaway is in action this Saturday against our local team, the University of Massachusetts. Interestingly, five of his teammates are not. They have been benched for various offenses including shooting BB guns in the residence halls and fighting during practice. Team culture...
One important clarification about this case. The media I read prior to my initial posting implied that using an outside arbiter (something I suggested might need review as a legitimate procedure for handling cases), was a common practice at UF. In fact, it is not. This was the first time UF had gone this route. This is eerily similar to Erika Kinsman's case at Florida State where a retired judge was brought in to conduct Jameis Winston's hearing and found him not responsible for sexual misconduct.

Kent State
The plaintiff who filed a lawsuit against the school in February 2016 alleging the school violated Title IX in the handling of her report of rape by her softball coach's son, has a filed a second lawsuit. This one is related to the university's failure to provide documents, including personnel records and student reviews of the softball coach, needed for the case. A judge has ordered this lawsuit to mediation. KSU has said the records requests from the plaintiff lack merit and specificity. It seems they are going down the dig-in-our-heels route.


California bill:
The bill initially proposed by state legislator Ricardo Lara has been amended after intense backlash from conservative religious organizations and schools. The initial attempt by Lara was to prevent these schools from discriminating against LGBT students by denying them exemptions. He changed the bill to mandate that religious colleges with exemptions reveal that fact (to whom or how is unclear based on media coverage) and that they report to the state when a student is expelled for violations of morality codes.
The bill and the ensuing controversy was mentioned in a recent Atlantic piece about the ongoing tensions between religious institutions, LGBT discrimination, and government funding of education.

The transfers issue:
Indiana State University took one day to dismiss from its football team a transfer from after they became aware of his alleged involvement in a sexual assault when he was at the University of Kansas. Though I remain suspect about the exchange of information that occurs in the transfer process, it does seem like ISU acted quickly. Perhaps it was just because a civil lawsuit against the player has been announced and ISU does not want to get caught up in the whole thing. In short, the decision was not very proactive, but it also was not as reactive (i.e., let's wait to see what happens) as we have seen in other situations.

Federal Court Enjoins North Carolina's HB 2 as applied to UNC

Yesterday a federal court in North Carolina issued an injunction that will prevent the state's "bathroom bill" from taking effect at the University of North Carolina.

By way of background, earlier this year, North Carolina legislature passed HB 2, which preempts local ordinances banning discrimination on the basis of sexual orientation and gender identity, and also restricts occupancy of multi-user bathrooms that are located in state agencies and public schools according to the user's "biological sex" as indicated by their birth certificate. Transgender plaintiffs challenged HB 2 as a violation of their constitutional rights, as well as a conflict with Title IX.  As part of the lawsuit, which names the University of North Carolina as one of the defendants, they successfully sought to immediately enjoin the bathroom restriction at UNC so that they can continue to use the bathroom that matches their gender identity while the lawsuit proceeds.

The standard for a preliminary injunction requires a plaintiff to demonstrate likely success on the merits as well as irreparable harm if the injunction is denied. Applying this standard, the court determined that the plaintiffs will likely succeed in their argument that UNC's enforcement of HB 2 violates Title IX.  The court applied G.G. v. Gloucester School District, the Fourth Circuit decision that confirmed a transgender boy's right under Title IX to use the boy's bathroom.  The federal courts in North Carolina are also in the Fourth Circuit, so the Gloucester case is binding precedent -- even though the remedy is temporarily on hold, for now, pending Supreme Court review.

In contrast, the court determined that plaintiffs' constitutional claims raised a novel application of the Equal Protection Clause, thus precluding the "clear showing" of likely success on the merits that is necessarily for a preliminary injunction. But the plaintiff's likely success under Title IX, combined with its conclusion that transgender students at UNC will suffer irreparable harm -- no place to use the bathroom -- satisfied the requirements for injunctive relief.

As a result, North Carolina state law does not prohibit UNC from accommodating the transgender plaintiffs' gender-consonant bathroom use.  If UNC refused such accommodations, however, the federal government is presently enjoined from enforcing such an interpretation of Title IX as a result of last weekend's decision from the federal court in Texas.  I read these conflicting injunctions to effectively permit UNC to choose for itself -- for now --  whether to accommodate transgender students, without a threat of either state or federal penalties for either choice it might make.

Federal Court Enjoins Title IX Transgender Guidance

This week, a federal court in Texas issued a preliminary injunction that bars the Department of Education from enforcing the interpretation of Title IX that is contained in its May 2016 guidance regarding transgender students. In that guidance, the DoE affirmed that discrimination on the basis of sex includes discrimination on the basis of gender identity and transgender status, and that as a result, institutions receiving federal funding must permit transgender students to access sex-specific facilities and programs that correspond to their gender identities rather than their birth-assigned sex.

The state of Texas is the lead plaintiff in a lawsuit that is challenging the DoE's interpretation. Yesterday, the federal district court granted the plaintiff's motion for a preliminary injunction, which means that while litigation is pending, the Department cannot insist that school districts and universities refrain from discriminating against transgender students, or revoke the federal funding from those who do.  The standard that the courts use to determine if a preliminary injunction is appropriate primarily considers whether the plaintiffs are likely to prevail on the merits, and that the balance of harm tips in their favor.  In addition, the court had to address several threshold issues regarding the justiciability of the case including the standing of the plaintiffs and the ripeness of the claim.

Substantive invalidity.  One key issue on which the court thinks the plaintiffs will likely prevail is their argument that existing regulation does not support the agency's position contained in the guidance.  The court disagreed with the agency's position that the regulatory ban on "sex" discrimination, subject to exceptions for sex-segregated facilities like bathrooms and dormitories, includes discriminating against transgender individuals by denying them access to facilities that are consistent with their gender identities. According to the court, "[i]t cannot be disputed that the plain meaning of the term sex as used in § 106.33 when it was enacted by DoE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth."

I think that even if conceded, that argument misses the point. It is possible to view transgender exclusion as sex-based treatment in the sense that a transgender individual's [anatomical, birth-assigned] sex is being viewed in relation to their gender identity.  Individuals whose sex and gender identities align can use the bathroom that matches their gender identity, while individuals whose sex do not align cannot the bathroom that matches their gender identity. Sex, even in its "plain meaning" attributed by the court, is still a factor being taken into account. An interpretation that this manner of discrimination is already prohibited by the regulations is therefore a permissible one for the agency to make.

Procedural invalidity. The court also concluded that the plaintiffs will likely prevail on its argument that the DoE should have used statutorily prescribed notice and comment procedures. When an agency promulgates a binding regulation, it must publish the rule in essentially draft form, get public input, and address the public's comments in the final version of the rule. However, when an agency issues sub-regulatory guidance that merely clarifies or interprets an existing regulation, it may legally bypass the notice-and-comment procedural requirements.

The court disputed DoE's classification of the guidance as an interpretive rule, concluding that it "de facto regulation" that should have gone through notice and comment, a conclusion that turns on the court's sense that the guidance was meant to be binding and not discretionary. But a key characteristic of an interpretive rule is whether, without it, the agency would have the legal basis on which to bring an enforcement action to the same effect. Here, existing regulations prohibit treating individuals differently on the basis of sex, subject to the exception for sex-segregated facilities like bathrooms and dormitories. Even if the guidance had never been published, the DoE could have advanced this position in the context of an enforcement action. In fact, it did that very thing.  I think the court missed an opportunity to discuss an important characteristic of an interpretive rule, the fact of an already-existing basis for enforcement. 

Ripeness. One other thing that surprised me about the court's opinion was the standard that it used to determine that the case was ripe. Here, the plaintiffs are asking the court to throw out the Department's guidance before it has been enforced against any funding recipient. According to a Supreme Court decision called Abbott Labs, such pre-enforcement review is only appropriate when the questions raised by the case are fit for review and that withholding of review creates a hardship for the plaintiff.  But notwithstanding this two-part test, the Texas court seems only concerned about fitness and not about hardship. In Abbott Labs, the drug manufacturer-plaintiffs challenging a USDA labeling requirement satisfied the hardship requirement because there were high costs associated both with compliance and with non-compliance. Are the schools in Texas and other plaintiff states in a similar double bind?  The cost of compliance is just to let transgender kids use the bathroom that matches their gender identity.  The percentage of students who are transgender is exceedingly small, maybe 1% or less.  For schools that do have transgender students in their population, it is possible to comply with the guidance without incurring any cost at all, which could not be said for the drug manufacturers in Abbott Labs.  Even the cost of non-compliance is distinguishable from that in Abbott Labs, where the Court was not only concerned with the possibility of incurring fines for mislabeled drugs, but also the particular cost to a drug manufacturer's reputation that come from being subject to an enforcement action.  This extra consideration should be necessary, since the penalties that result from the enforcement action itself are always ripe for review. And it doesn't seem to be present here.  In light of the court's omission of a key component of the ripeness test, I am guessing this issue will be an important one on appeal.

Florida accuser tries new tactic

The student conduct hearing process for Title IX cases at colleges and universities can be, among other things: fraught, painful, confusing, offensive, ineffective, and biased.

At the University of Florida, one student accuser is attempting to address the latter: bias. She  refused to take part in the conduct hearing for two football players she has accused of sexual assault and attempted sexual assault her because the man adjudicating the case is a football booster.

The woman did not report the assault to university or local police, instead choosing to use the student judicial process. Florida appoints adjudicators for Title IX cases. John Clune, the Colorado-based attorney who has handled many Title IX sexual assault cases (he is Erica Kinsman's lawyer), is representing the woman. He made the statement on behalf of his client: "the fact that UF has hired a football booster to adjudicate a sexual assault charge against one of the team’s own football players is a fundamentally skewed process in which [the complainant] refuses to participate."

Bias in the processes of both the school's judicial process and the legal system is rampant in Title IX cases. We saw it in Kinsman's case and it was a major theme in Jon Krakauer's book about sexual assault at the University of Montana. 

Read more here: http://www.miamiherald.com/sports/college/sec/university-of-florida/article94006377.html#storylink=cpy

The players were suspended from the team for violating the student code of conduct. They were barred from campus but remained enrolled and took online classes. One player is planning to transfer (apparently as part of a deal, which included an apology), the other is remaining at the school and fighting the accusations and, as of last week, was practicing with the team (though he has not been officially reinstated).

It is unclear what will come of the boycott, but the action itself is important. It is an opportunity to really examine and potentially challenge the ways in which schools are adjudicating Title IX cases. It may also be an opportunity to assess the role and training of outside adjudicators. While the adjudicator in Kinsman's case against Jameis Winston, a former Supreme Court judge in Florida, was deemed acceptable by both sides, it was clear from the transcripts that he did know the student judicial process. A UF spokesperson said adjudicators are well-trained but apparently not vetted for bias the belief being that the training will somehow eliminate bias.

Schools need to do better. This is not news. But it seems as if schools that want to demonstrate attempts to change the climate of the campus should at least start at the judicial hearing process.

Law Professors Publish Support for DCL's Preponderance Standard

Over ninety law professors* have signed on to a white paper that defends the Department of Education's 2011 Dear Colleague Letter and its clarification that universities must use the preponderance of evidence standard when deciding sexual assault cases.  Under the preponderance standard, decisionmakers should find a respondent responsible for misconduct if the balance of evidence tips in that direction even slightly.  The agency felt the need to clarify Title IX's requirement of a preponderance standard after it had adjudicated cases against institutions that been requiring "clear and convincing" evidence of the respondent's guilt, a standard the tips the balance in favor of the accused, and the "beyond a reasonable doubt" standard, which tips it even more.

As this article notes, the recent white paper stands in contrast to other position papers like that of FIRE and the AAUP, which have criticized the preponderance standard out of concern for the rights of accused students. The white paper's authors argue that the preponderance standard is consistent with other applications of civil rights laws, and that there is no justification for a standard that would make it harder to address sexual harassment than other types of harassment and discrimination. Additionally, the white paper points out that the preponderance of evidence standard applies to lawsuits filed by students who have been disciplined for sexual assault. In a world where universities could use a higher standard such as clear and convincing to adjudicate sexual assault cases, but students who are disciplined could challenge the result based on the lower preponderance standard, there would be little incentive for universities to impose discipline on students accused of sexual assault.

Moreover, the white paper authors point out, the more defendant-protective standards of evidence that apply in criminal proceedings are used as a check against government abuse of power.  In contrast to government, which has the power to use criminal proceedings to potentially deprive citizens of their life, liberty, and property, a university's power is limited to expelling a student from school. Attempts to analogize to the criminal standard improperly "conflate" university discipline and criminal justice system, which have very different objectives.


*myself included -EB

Another Religious Exemption Withdrawn

Another university (see this earlier post) has formally distanced itself from an earlier request for a religious exemption under Title IX. The Chronicle of Higher Education reports that Loyola University of New Orleans has written to the Department of Education to ensure that the agency no longer considers it among the institutions that have historically or recently exercised their statutory right to opt out of Title IX provisions that conflict with religious tenets.

In Loyola's exemption request, which it filed in 1986, the institution affirmed that regulatory obligations to include "termination of pregnancy or recovery therefrom" in its student health insurance plans conflicted with its Catholic tenets opposed to abortion. Today, however, the institution no longer offers a student health insurance plan, so the exemption is no longer necessary.

As the Chronicle's article points out, there was no legal reason for the institution to formally disclaim an exemption that only pertains to an obsolete program. Thus, the purpose of the letter seems to be entirely a matter of public relations. As religious institutions have lately rushed to claim exemptions that would permit them to discriminate against LGBT students, the list of religiously-exempt institutions has acquired a certain degree of notoriety. Loyola, like Pepperdine, looks to be going out of its way to distance itself from the other institutions on the list.