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.