OCR Finds "Insufficient Evidence" of Most Title IX Violations Alleged Against Occidental College

The Department of Education's Office for Civil Rights announced yesterday that it had entered into voluntary resolution with Occidental College in Los Angeles, closing the agency's investigation into the high-profile complaint alleging that the college had violated Title IX in its handling of sexual assault.  For the most part, the agency found "insufficient evidence" that Occidental's procedures and practices deviated from the requirements in the Dear Colleague Letter.  In particular, the specific allegations against Occidental that were raised by complainants were all rejected. For example, the agency rejected the charge that Occidental fails to take interim measures to protect complainants while the grievance process is ongoing; the college issues stay-away letters and interim suspensions from college activities, removed respondents from shared living spaces, and also made support and academic services available to complainants.  The agency also found insufficient evidence to support the charge that Occidental did not adequately punish those found responsible for sexual misconduct by providing respondents with the opportunity to complete educational assignments as part of a sanction (in lieu of expulsion). OCR determined that these sanctions were reasonable under the circumstances and that they were completed by the respondents who received them. The agency also determined that respondents who faced multiple, separate charges of sexual assault were appropriately sanctioned, by expulsion in some cases, or with circumstance-appropriate alternatives.  As a final example, complainants alleged that Occidental officials discouraged students from filing formal complaints, but OCR investigators could not substantiate this claim.

OCR's investigation did find that in the 2012-13 school year, Occidental failed to promptly handle a three sexual assault complaints without an adequate justification. The delays in these cases were caused by staffing vacancies and hearing officers who were unavailable. Since that time, however, Occidental has revised its policy to eliminate the hearing panel, created a new process to determine responsibility and sanctions, and has hired Deputy Coordinators. To ensure that these changes address the matter of timeliness going forward, the college and OCR have entered into a resolution agreement that OCR will monitor.

The complaint against Occidental was one of the early in the wave of post-Dear Colleague Letter complaints. It received national attention, in part, because the college was found to have concealed sexual assault statistics in violation of the Clery Act.[*]  In that context, it did not seem unlikely that a college that would suppress evidence of campus rape would also seek to discourage students from filing formal complaints and otherwise minimizing the consequences for those accused and found responsible of sexual assault. The findings that emerge from OCR's investigation, however, tell a different story.

*Update: Since writing this post initially, I learned that the report of these violations was later retracted. Occidental College is being investigated but has not been found responsible for violations of Clery Act.

Roundup of Campus Sexual Assault Cases

Here is a summary of recent judicial decisions in cases alleging institutional liability for sexual assault under Title IX.

A student at the University of California at Santa Barbara was drugged at an off-campus party and then raped by a fellow student.  Three months later, she withdrew from school after being put on academic probation. She sued the institution under Title IX, first challenging its failure to conduct an investigation or disciplinary proceedings and for making statements capable of dissuading her from seeking such recourse. For example, one campus official told that plaintiff that university investigation might interfere with an ongoing criminal one. Confusingly, the court concluded that the university's "delay" does not constitute deliberate indifference giving rise to Title IX liability. Calling it a delay suggests that the university eventually got around to conducting an investigation though it did not. Nevertheless the court interpreted the university's conduct to be possibly negligent, but not clearly unreasonable if it really thought that conducting it own investigation would hamper law enforcement.

The court also rejected the plaintiff's argument that the university's failure to provide her with any housing or academic accommodations was deliberate indifference.  The plaintiff argued that, ""[t]he mere presence on campus, without any restrictions, of the student that sexually assaulted [her]” placed her in a sexually hostile environment" and did not try to help her reduce her courseload so that she could stay academic standing. But the plaintiff's claims fail because did specifically ask for accommodations.  Therefore, the university's failure to offer them, while possibly negligent, was not "deliberately indifferent."

This decision seems to me to set the bar for deliberate indifference unduly high.  The university is alleged to have done literally nothing in response to the plaintiff's report of sexual assault. Doing nothing ought to at least create the possibility of a deliberate indifference finding by a jury. Additionally, this case starkly illustrates the difference between judicial and administrative standards for Title IX liability. So much of what the plaintiff alleges directly contravenes the Department of Education's requirements in the Dear Colleague Letter.  But as the court itself (correctly) reminds, violations of Title IX regulations do not necessarily give rise to liability for damages because the standards courts used for that purpose is a much stricter, deliberate indifference standard.

Moore v. Regents of the Univ. of California, 2016 WL 2961984 (N.D. Cal. May 23, 2016)

The University of Tennessee is being sued by a group of plaintiffs who allege that while they were students, they were sexually assaulted by male student athletes on the basketball and football teams.  They claim that the university is liable for the sexual assaults that athletes committed against them because the university's indifference to a known pattern of sexual misconduct by athletes put them at risk of being assaulted as well.  Additionally, they claim that the university is liable under Title IX for mishandling their own reports of sexual assault, and one plaintiff alleges that she was retaliated against for participating in the investigation of one of the other plaintiff's assaults.  Last month, the federal court in Tennessee substantially denied the university's motion to dismiss these claims. The court was not persuaded by the university's argument that the plaintiffs did not allege that the university had actual notice of past sexual misconduct by their assailants in particular. Here the university is not alleged to have ignored a general risk that some students will harass some students, which would not, of course, be actionable.  Instead, the complaint alleges that the university  was "put on notice of a specific and concrete pattern of an 'inordinate' number of sexual assault allegations against members of specific teams within the UT Athletic Department and also allege that such a pattern may be directly related to the culture within the Athletic Department." This is an adequate allegation of notice and deliberate indifference, according to the court. In fact, it goes beyond "indifference" and alleges that the university's own actions in facilitating a culture of sexual assault are to blame for their assaults, which is a basis for potential liability in itself.

Doe v. University of Tennessee, 2016 WL 2595795 (M.D. Tenn. May 3, 2016).

In 1999, the plaintiff was a freshman at Oregon State when she was drugged and raped at a party in an off-campus apartment that was connected to members of the football team.  The plaintiff later learned that her assailant was not a student, but the cousin of a football player named Calvin Carlyle, who was visiting from out of town. Fifteen years later, the plaintiff discovered that Carlyle himself had raped another female student in the same apartment one year prior to her own rape, and that he had merely been suspended from one game as a result. The plaintiff then sued Oregon State, alleging that the university was liable for her rape committed by the cousin because it had been deliberate indifferent to the first rape committed by Carlyle. The court dismissed this claim, however, noting that the plaintiff's assailant (the cousin) was not a student and that the assault did not take place on campus. Given both of those factors, the university did not have power over the situation and cannot therefore be liable.  The plaintiff also alleged that the university was deliberately indifferent to her own reported rape, but this claim was barred by the statute of limitations, which in Oregon is two years.

Samuelson v. Oregon State University, 2016 WL 727162 (D. Or. Feb. 22, 2016). 

Sexual Assault by Student Is Not Automatically a Title IX Issue

As the public continues to decry the six-month sentence for convicted rapist Brock Turner, I get the sense that many are wondering about possible Title IX implications for this case. From what I've read, there are none. The university has pointed out in a public statement that it conducted a prompt investigation that resulted in Turner's being banned from campus, "the harshest sanction that a university can impose on a student."  The university also noted that it provided counseling services to the victim, who was not a Stanford student, once it learned her identity.  

I don't take a position on whether students have appropriately criticized Stanford's statement as cold and unsympathetic, or whether the university should extend an apology to the victim and increase resources for sexual assault prevention.  All I suggest here is that, if what Stanford says is true, there is nothing in the public record to suggest that more is required of the university under Title IX. Universities are not vicariously liable for the misconduct of their students. In the case of sexual violence and sexual harassment, they required to engage in a prompt and equitable response when it learns that such misconduct has occurred, and that appears to be what Stanford has done in this case.

Sexual assault has the potential to constitute a crime, a civil rights violation, and sometimes both. Often a reminder of sexual assault's dual character is required in the situations where there is no criminal liability for sexual assault. When cases like that are up for discussion, I find myself pointing out that the absence of criminal penalties doesn't mean that Title IX is automatically off the table. But that reminder works in the reverse, as well: just because there is criminal liability doesn't automatically mean implications for Title IX. 

Teachers' Sexual Misconduct at Issue in Recent Cases

In the last month or so federal courts have made decisions in several cases in which sexual misconduct by teacher and coaches have given rise to Title IX litigation. Here is a summary.

A federal court in Pennsylvania refused to dismiss Title IX claims stemming from a music teacher's ongoing sexual assault of a student that began when she was in middle school and extended into high school. The male teacher had intercourse and engaged in other acts of sexual assault with the female student on multiple occasions and the student had gotten pregnant as a result. Twice the student reported the teacher's misconduct to another teacher.  School officials claimed they did not ever hear about the first report, but they did get the second.  Rather than investigating, however, they allegedly pressured the victim to rescind her claims against the music teacher. (Eventually the teacher plead guilty in a criminal proceeding.)  Especially when factoring in earlier complaints that this same teacher had harassed other female students, the court agreed that she had satisfactorily alleged notice and deliberate indifference, the key elements for institutional liability under Title IX. K.E. v. Dover Area Sch. Dist., 2016 WL 2897614 (M.D. Pa. May 18, 2016).

Also in Pennsylvania, a school district prevailed at summary judgment on claims that it violated Title IX by failing to protect a student from sexual abuse by her coach. In this case, school officials found out about the ongoing misconduct when the coach was arrested by police. There was no evidence suggesting that they knew about what was happening and failed to intervene. The coach had been dismissed from another school for sexual misconduct, but on inquiry from the defendant's athletic director, the coach's prior employer said that his dismissal was due to "excessive texting" of a student, which did not put the defendant on actual notice that the coach posed an imminent sexual threat to his players. Nace v. Pennridge Sch. Dist., 2016 WL 2609789 (E.D. Pa. May 6, 2016).

A female student on the predominantly-male wrestling team sued her Pennsylvania school district for failing to respond to her allegations of sexual harassment by the coach. The court disagreed with the plaintiff's characterization of the coach's behavior as sexual harassment and dismissed the claim. Specifically, the court acknowledged that the coach was "vulgar and inappropriate" -- he told the plaintiff and another female wrestler that they had to "be the boy" and ought to wear strap-ons. He teased other male wrestlers on the team that the plaintiff is the only girl he would ever touch or have on top of him. But, the court determined, this harassment was not sufficiently pervasive because the plaintiff alleged only about 10 sexually-tinged comments over 2-3 years.  Also, because the coach acted this way towards all the wrestlers on the team, he was not singling out the plaintiff because of sex.  Moeck v. Pleasant Valley Sch. Dist., 2016 WL 1553440 (M.D. Pa. Apr. 15, 2016).

Other states besides Pennsylvania contributed cases to this collection. A federal court in Georgia determined that the plaintiff had not sufficiently alleged that the school district was on notice of a teacher's sexual misconduct, and dismissed her case accordingly. The very day that the student's stepfather reported evidence of the teacher's misconduct to school officials, the district commenced an investigation. By the end of the day, the teacher had resigned and was facing criminal charges. Nothing in the plaintiff's complaint suggested that the school district had missed earlier opportunities to intervene, the court concluded. Specifically, the court rejected the plaintiff's argument that the school district was on notice because it knew that the teacher had been fired from an earlier job for sexual harassment. According to the court, this knowledge did not put officials on notice that the teacher posed an imminent threat to this particular student. Though the court did acknowledge past misconduct can in some cases provide notice of an imminent threat against a new victim, there must be a stronger pattern of past misconduct than what was alleged here. S.W. v. Clayton County Public Schools, 2016 WL 2755607 (M.D. Ga. May 12, 2016).

In this last case, the student did not claim that the school district was liable for the teacher's misconduct, but instead, for retaliating against him for having been involved in a sexual relationship with the teacher.  The court quickly dismissed this claim, noting that it failed to allege many required elements of retaliation. For one, the student himself did not engage in the requisite protected conduct by reporting the teacher's abuse; instead, school officials discovered it based on reports of other students. Additionally, there was no basis for concluding that the disciplinary action that the student later faced for chewing tobacco and other offenses were in any way related to his relationship to the teacher.  Gordon v. Traverse City Public Schools, 2016 WL 1566721 (W.D. Mich. Apr. 19, 2019).

New WSF Report Examines Gender Inequality in Coaching

Last week the Women's Sports Foundation issued a new report that examines gender inequality in the coaching profession. The report's authors surveyed over 2500 current and former coaches about their experiences and perceptions of the athletic departments in which they work, and revealed some surprising and some not-so-surprising results.

For example of of a not-so-surprising result, a significant minority of female head coaches (32%) perceive that men's teams other than football receive greater resources than women's teams. While football is certainly included in the Title IX analysis, separating it out for purposes of a survey paints an even more compelling picture of gender inequality. Yet, sadly, a third of female coaches also believed that they would put their jobs at risk if they spoke up about gender inequality.

The report also garnered data about how coaches view the equality in the terms of employment. A majority of coaches (male and female) agreed that it was easier for male coaches to get hired for high-level jobs, be awarded a multi-year contract, and successfully negotiate a raise.  Meanwhile more than 40% of female coaches reported that they had experienced gender discrimination in the workplace and a third perceived that administrators favored male coaches. Notably, the report also included some interesting comments about "reverse discrimination" -- the perception that being male is disadvantageous in the athletic department workplace. In fact, 40% of male coaches, compared to only 12% of female coaches, believed that they had not gotten a coaching job because of their gender. This is an interesting pair of statistics that I think says something about gender and entitlement. Women are unlikely to believe they were ever turned down for a coaching job because of their gender despite constituting only about 20% of college head coaches. One explanation for this is that they are not going after jobs in men's sports because they do not feel entitled to those jobs the way that men feel entitled to the coaching jobs in women's sports.

On the other hand, men have nearly all of the coaching jobs in men's sports and even a majority of the coaching jobs in women's sports, yet a significant percent of them still perceive that gender disadvantaged them in the hiring process. They made comments on the survey like, “I’m a white male and I can’t get the job because they have to hire a female or a minority. This is not right. The best candidate should be hired regardless of race or gender.” And, “I would do much better off professionally if I was a minority, handicapped, homosexual." They argue that "much less qualified" women "with less experience" are being hired instead of them.

Based on comments like these, one imagines the college coaching market flooded with applications from optimistic, overconfident women who are seeking jobs beyond their reach (and then managing to get hired for those jobs, no less.). There are a lot of gender stereotypes that pertain to hiring, but women being overconfident in their job applications is definitely not one of them.  I also have to wonder how many of these respondents are defining "experience" in a self-serving way, like assuming they receive equal "credit" for having a background in baseball instead of softball, or men's hockey instead of women's (despite the men's and women's sports having different rules).

Not surprisingly, therefore, the recommendations section of the report focuses primarily on the barriers to leadership that female coaches are confronting. For example, the report recommended that athletic departments conduct open searches by hiring committees to fill high-level vacancies, including head coach positions.  Departments should also have and follow policies that ensure job duties, evaluations, salaries, and other aspects of employment are handled without regard to gender. I also thought these two recommendations, aimed primarily at the NCAA, were particularly strong:

• National athletic governance associations should require member institutions to undertake a periodic certification program or other third-party peer review of the operation, processes and policies of its member institution athletic programs to ensure compliance with legal requirements and best practices, including the employment and compensation of coaches.

• National and conference athletic governance organizations should require that member institution athletic programs must establish policies that require a minimum number of qualified minority applicants to participate in finalist inperson interview pool for all coaching positions.