Trangsender Student's Title IX Claim in Bathroom Case Is Reinstated By Appellate Court

Today the Fourth Circuit Court of Appeals ruled that a lower court improperly dismissed the claim of a transgender male plaintiff who alleged that the Gloucester, Virginia school district's policy barring him from the boys' restroom violated Title IX. (We earlier blogged about that earlier district court decision here.) Today's decision paves a clear path for a judgment that provides permanent relief to the plaintiff in the form of a permanent injunction against the school's exclusive policy. Additionally, the court reinstated plaintiff's request for a temporary injunction that will allow him to use the boys' bathroom while the case is still pending.

The plaintiff's central argument is that Title IX's ban on sex discrimination includes discrimination that targets transgender students by treating them differently from other members of their affirmed gender. In support of this argument, he pointed to a 2015 opinion letter by the Department of Education that contains this interpretation.  But the district court refused to give weight to this opinion letter because in the judge's view, it conflicted with a provision of the Title IX regulations that permit schools to offer separate bathroom facilities for members of each sex.

The appellate court explained it is a settled matter of administrative law that when an agency's regulation is ambiguous, courts should defer to the agency's own interpretation of that regulation unless that interpretation is plainly erroneous. It held that Title IX's regulation permitting separate bathrooms for each sex is ambiguous with respect to transgender students, as "sex" could be understood to refer to biological sex (the school district's position) or to a broader definition of sex that incorporates gender identity. In light of these multiple plausible interpretations of the regulation, the court reasoned, the district court should defer to the Department of Education's interpretation of that regulation, which would require school to permit transgender students to use the facility that is consistent with their gender identity rather than their birth-assigned sex. Underscoring this conclusion, the appellate court determined that the Department of Education's interpretation was not plainly erroneous because it is consistent with the definition of sex that was prevailing even at the time the regulations were promulgated, a definition that incorporated consideration of various physical, psychological, and social aspects of sex and gender.

The appellate court therefore concluded that the plaintiff's claim should be reinstated.  This means that the case returns to the lower court to continue the litigation process as if it had not been dismissed. The plaintiff can also try again to get a preliminary injunction that would provide immediate access to boys' restroom while the case is pending. Notably, while the plaintiff asked the court of appeals to assign the case to a different lower court judge on remand (as issue we blogged about earlier, here), the appellate court refused to take what it considered to be an "unusual" step.

This decision will likely have an impact outside the context of this plaintiff and the public schools in Gloucester, Virginia.  Most directly, it could affect the political discourse in the wake of a spate of  new state laws targeting transgender individuals' right to use the bathroom consistent with their gender identities. Many have pointed out that these state laws jeopardize the federal funding for public schools and state universities who can no longer comply with Title IX and state law.  Some politicians have pointed to the district court decision that was overturned today as evidence that those state laws and Title IX did not conflict. But today's decision affirms that Title IX means what the Department of Education says it means, and that means, schools that restrict transgender students' bathroom access are not in compliance with Title IX.

Updates on campus sexual assault cases: Baylor & Tennessee

Two weeks ago, a lawsuit was filed against Baylor University by one of the victims of already jailed former student-athlete Tevin Elliot. The victim alleges deliberate indifference on the part of the university. Baylor's problems with athletes committing sexual assault were documented in an Outside the Lines, and through there is no telling what evidence will be brought into the courtroom, the fact that people who work(ed) at Baylor talked about the multiple complaints against Elliot and the denial of services to the victim do not bode well for the university. Also, it is this victim whose case resulted in Elliot's incarceration. I predict a settlement in which Baylor admits no liability and makes a statement about settling to avoid lengthy litigation with its attendant costs. (I wrote about the Baylor situation earlier and that post includes a link to the OTL story.)

 Last week, local police in Waco arrested former Baylor football player, Shawn Oakman and charged him with sexual assault. Oakman is entering the NFL draft this spring and was expected to be a middle round pick; there is no telling how this arrest may impact his draft standing. The police were also seeking to access his cell phone and DNA. The alleged incident occurred in early April according to the victim, a female graduate student at Baylor. So this case is not actually related to the lawsuit against Baylor or the reporting that OTL did. It is, of course, related to the culture of privilege and sexual violence that exists in the football program. Oakman has graduated from Baylor, where he--notably--did not begin his career. He was dismissed from Penn State because of behavior issues, which did not involve--according to reports--sexual assault, but did include assault on a female store clerk. 

Since the lawsuit against Tennessee was filed in regards to the climate of sexual hostility there which includes incidents of harassment and assault, the main news has been the addition of Peyton Manning to the text of the lawsuit. Manning is not the subject of the lawsuit, but an incident in which he allegedly sexually harassed a female athletic trainer is in the lawsuit as indicative of the university's pattern of deliberate indifference, especially in regards to athletes engaging in sexual assault and harassment. Other former players were also named, but of course Manning's draws a lot of attention to the case. The university wanted his name removed from the lawsuit but a judged ruled last week that that was not going to happen. The university also wanted proceedings to move from Nashville to Knoxville, likely because they believe that if this goes to trial a Knoxville-based jury will be more favorable to their side. The judge said no to that as well.

Tennessee continues to combat the lawsuit in any way it can, which includes the above actions as well as taking issue with several of the eight women who filed the lawsuit earlier this year saying that not all of them have standing.

Sexual Harassment Roundup

Here is a summary of a few recent decisions in cases where the plaintiffs sought to hold educational institutions liable under Title IX for failing to adequately respond to peer harassment and assault.

The Sixth Circuit Court of Appeals upheld a lower courts summary dismissal of a Title IX claim against a Tennessee school district alleging deliberate indifference to pervasive bullying of the plaintiff.  The appellate court affirmed that the deliberate indifference standard "sets a high bar for plaintiffs." Here, school officials respond to individual accounts of bullying by a variety of methods including investigation and discipline, as well as proactive measures like separation and monitoring. The court noted that it is possible for officials to demonstrate deliberate indifference by continuing to rely on the same methods that are proven to be ineffective at eliminating the problem. But according to the court, that is not what happened here. School officials employed a variety of responses that were proportionate to the offense and effective at addressing individual sources of bullying.  There were almost no "repeat offenders" nor were there apparent connections between various bullies who contributed to the problem over time.  Accordingly, the appellate court held that the district court was correct to determine that the school officials' response was not clearly unreasonable as a matter of law.  Decision: Stiles ex rel. D.S. v. Grainger County, 2016 WL 1169099 (6th Cir. Mar. 25, 2016).

A federal court in Virginia dismissed a plaintiff's Title IX claim against Bridgewater College that had alleged the college was deliberately indifferent in its response to her report of sexual assault by a fellow student.  Specifically, she had alleged that the college violated its own policy when it discouraged her from simultaneously reporting the matter to the police, failed to advise her of her rights, didn't allow her to present witnesses, and didn't keep her involved and advised of the disciplinary process. In rejecting this argument the court held that the judicial standard of institutional liability for damages under Title IX is not conclusively satisfied by claims that the college violated its own policy.  Instead, the college must be "deliberately indifferent" to the plaintiff's claim, which is a higher standard. Here, the college promptly conducted an investigation, held a disciplinary hearing, and suspended the respondent--a response that cannot be classified as "indifferent". This case illustrates the difference between the judicial standard for institutional liability where money damages are at stake, and the Department of Education's compliance standard to determine whether a college can continue to receive federal funding. Because the standards are different, the fact that the plaintiff's allegations may have constituted violations of the Department of Education's Dear Colleague Letter did not enter in to the court's analysis. Decision: Faccetti v. Bridgewater College, 2016 WL 1259415 (W.D. Va. Mar. 30, 2016).

In Connecticut, a federal court dismissed a Title IX claim against Torrington School District in a case challenging the school district's response to prolonged bullying of the plaintiff by other students.  The bullying consisted of verbal harassment, much of it by fellow members of the high school football team, as well as an incident of sexual assault.  The court ruled out that the school district could be liable for its response to the sexual assault, which occurred over the summer and off school grounds, because when it was eventually reported to school officials, they responded immediately to the report by separating the plaintiff from the bullies. The court ruled that the rest of the harassment was outside the scope of Title IX because there was no evidence that the bullies were motivated by the plaintiff's gender.  The court rejected the plaintiff's contention that some of the bullies' slurs, like "bitch," "pussy," and "faggot," satisfied this element, a conclusion that was surprising to me, given those words in isolation connote effeminacy and even more so in the context of a football team, where masculinity is rigorously policed.   Decision: Doe v. Torrington Public Schools, 2016 WL 1257819 (D. Conn. Mar. 30, 2016).

Oregon High School Softball Team Sues District Over Unequal Facilities

School officials in Lake Oswego, Oregon, allegedly told the high school girls' softball team that they would have to win a state championship before the school would upgrade their facilities to match the level of quality that the boys' baseball team receives.  In a lawsuit challenging this disparity in treatment under Title IX, the softball player-plaintiffs strike back, pointing out the unfairness of holding them to such a high standard while refusing to improve the level of support for the team.

In the lawsuit, the softball players allege that their facilities at a nearby junior high school consist of a dirt field with poor drainage that often requires them to cancel games due to poor conditions.  They also lack designated locker room and basic amenities like water fountains.  Meanwhile the boys' baseball team plays in a stadium at the high school that is decked out with artificial turf, locker rooms, pitching machines, an enclosed batting area, a press box, sound systems, water fountains, and well-maintained bathrooms.

The school district claims that improvements to the softball field are being made, though if this is their only defense, that would not be enough to dismiss a Title IX challenge. Title IX requires that schools provide equal treatment to their boys' and girls' athletics programs overall.  It is not necessary to treat all sports equally or provide similar treatment to the boys and girls teams in the same (or similar) sport. Theoretically, a school court argue that (for example) a world-class swimming facility for the girls, if it had one, swim team offsets the similar level of luxury that the boys' baseball team enjoys.  However, intra-sport or similar-sport comparisons usually end up being good indicators of overall disparity in support for the boys and girls programs in the aggregate. 

Title IX Aside, Disciplined Students Prevail in Two Recent Decisions

In two recent decisions, students who had been disciplined for sexual assault prevailed in some way (one outright, one by defeating the university's motion to dismiss) in their claims challenging the disciplinary process used by the university.  As I describe each of them in some detail, you will notice that neither decision involves a Title IX claim. But both belong on the Title IX Blog, for two reasons.  First, the fact that plaintiffs prevailed on claims other than Title IX (i.e., a claim that the school's procedures or procedural violations resulted from bias against men) supports my suspicion that Title IX claims are for the most part misplaced in disciplined student cases -- there are better source of law to address the fairness of university's procedures that don't add the unnecessary distraction of a reverse-discrimination argument. Second, with one caveat, the examples of procedures that the judges in these cases found were or could possibly be deemed unfair are not procedures required by Title IX as spelled out in the Department of Education's Dear Colleague Letter (the caveat being the judge's discussion of the preponderance of evidence standard in the Brandeis case, discussed below).  Bottom line is that it is possible for universities to comply with Title IX and provide a fair process to students disciplined for sexual assault, and nothing in these recent decisions changes that.

Doe v. George Mason University

In this case, a federal court ruled in favor of the plaintiff's motion for summary judgment, a rare outcome in which the plaintiff wins without trial. The plaintiff is a former student who was expelled for sexual assault of a female classmate, his ex-girlfriend, with whom he had had a BDSM relationship. She reported to university officials that he had been sexually abusive and a hearing was held.  The panel initially found him not responsible, based on his defense that both parties had agreed to rough sex and the designation of a safe word to withdraw consent. On appeal, however, an assistant dean of students reversed the panel's determination and the plaintiff was expelled, and the plaintiff sued, eventually moving for the fore-mentioned summary judgment.  

The court agreed that the uncontroverted facts established a violation of his constitutional right to due process.  The Assistant Dean who served as the decisionmaker on appeal did not explain the factual basis for reversing the panel, but during the discovery phase of litigation, the plaintiff discovered that the conduct he was being punished for was something outside the scope of the notice of the charges against him.  Notice of the charges is a fundamental component of due process, since only a person who is on notice of the charges can adequately prepare to defend himself at a hearing.   Another due process violation occurred during the appeal process when the Assistant Dean held separate, closed meetings with the individual members of the disciplinary panel, the complainant, and the respondent, without informing the respondent about the content of those meetings that could have provided him an opportunity to respond. Moreover, evidence in the record that the Assistant Dean had "made up his mind so definitively that nothing plaintiff might have said [in the appeal process] could have altered his decision" is a rare example of decisionmaker bias severe enough to warrant a due process violation on its own.  

Having prevailed on the merits of his due process claim, the court agreed that he should be reinstated at least for now.  The court emphasized that due process is not focused on the result of a hearing, but the means used to reach it.  It is possible, the court acknowledged, that the plaintiff may in fact deserve to be expelled. The only issue this opinion decides is that the process the university engaged in to reach that decision was constitutionally flawed.  Yet, the court refrained from immediately ordering that the university correct its procedural errors by holding a new hearing.  Instead, the court decided to invite the parties to brief the matter of remedy prior to a final decision on that issue.

Doe v. Brandeis University

In the second case, a federal judge in Massachusetts denied Brandeis University's motion to dismiss breach of contract claims filed by a student disciplined for sexual assault. Unlike George Mason University discussed above, Brandeis is a private university and therefore is not subject to the Constitution's due process clause. However, the judge determined that private universities implicitly agree as a matter of contract to treat students with "basic fairness," including procedural fairness similar to due process.

Like in the case described above, the court focused on the university's failure to provide the disciplined student with sufficient notice of the charges against him, which, like the case above, arose out of conduct over the course of a long-term relationship between the plaintiff and his ex-boyfriend. Given the span of time in question, the university's failure to provide notice made it particularly difficult for the plaintiff to surmise and thus defend against the precise misconduct that was under scrutiny.  Additionally, Brandeis allegedly denied the plaintiff the right to counsel, prohibited him from having any opportunity -- not even through an intermediary -- to cross-examine the complainant, and similarly prohibited his access to the investigator's report as well as the statements of witnesses and other evidence against him, which similarly impaired his ability to defend himself. The judge also expressed concern that Brandeis's process permitted the same official who investigated the complainant against the plaintiff also served as "prosecutor, judge, and jury" while simultaneously restricting the plaintiff's right to appeal that decision.  And he additionally noted that the university's use of preponderance of evidence standard was "particularly troublesome in light of the elimination of other basic rights of the accused."  This part of the decision is notable because the preponderance standard is something that the Department of Education has required as a matter of Title IX compliance.  However, the judge does not isolate the preponderance standard as an independent grounds for concluding that Brandeis's process may lack basic fairness, so I don't read this decision as prohibiting universities from using it.

Additionally, the judge concluded that "basic fairness" extends to the substance of decision as well as the procedure that it was reached.  In this case, the university is alleged to have applied "novel notions of consent, sexual harassment, and physical harm" that are "at odds with traditional and legal and cultural norms and definitions."  The judge agreed that this allegation could also constitute a breach of contractual right to basic fairness.  For example, it does not appear that the investigator scrutinized the charges of sexual misconduct that the complainant alleged occurred prior to the onset of their long-term relationship.  While the judge noted that it is possible for someone to enter into a long-term relationship with someone who has abused them, the investigator apparently did not even consider other possibilities, such as that the complainant's memory of those events were clouded by his feelings for the plaintiff arising from the breakup, or by his subsequent alcohol abuse, or by the "suggestive effect" of sexual assault training he later received.

The judge also criticized the investigator for not taking into account that some of the sexual conduct that the plaintiff was punished for occurred in the context of a long-term relationship, which affects the way partners convey consent. For example, one of the grounds for sexual misconduct was the plaintiff having kissed the complainant in his sleep.  The judge criticized the investigator for automatically concluding that the plaintiff had not obtained consent on the grounds that sleep is incapacitation, without taking into account the reality that couples in long-term relationships tend to rely more on implicit than explicit means of establishing consent.

Having prevailed over the university's motion to dismiss, the plaintiff will now be able to continue the litigation to its next phase, discovery, after which it is possible that the case could be resolved by summary judgment, or alternatively, proceed to trial.  Of course, settlement is always a possibility in any case, and defendants are sometimes more willing to settle after losing a motion to dismiss.

Doe v. Rectors and Visitors of George Mason University, (E.D. Va. Feb 25, 2016).