Monday, January 25, 2016

Settlement in FSU case

Breaking news: FSU will pay Erica Kinsman just under $1million to settle the lawsuit she brought against her former institution in the wake of their mishandling of her rape allegations against former quarterback Jameis Winston.

FSU had dug its heels in deep in the case, making repeated remarks to the media about how they had done everything according to the book, despite glaring evidence to the contrary. So I am somewhat surprised by the settlement--and somewhat not so surprised. A trial would have drawn more attention and potentially turned public opinion against the university which still remains very popular in the eyes of fans and alumni. I believe the evidence that would have been brought out at trial would have made them look horrible. Their initial lack of response to Kinsman and the more-than-a-year-late conduct board hearing which was handled so poorly could not have been overlooked.

In the settlement FSU admits no wrongdoing, though most of us know that $950,000 is a pretty hefty sum for an innocent entity. But this way those who vilified Kinsman, (the harassment she experienced was one of the reasons she withdrew from her dream school) can continue to say that nothing was ever proven and that the university simply had to pay her off or incur even more costs to defend themselves. This narrative is somewhat frustrating. Though there are further legal actions pending against Winston.

FSU is still maintaining that they would have won in a trial. This statement from President John Thrasher is particularly infuriating:
Although we regret we will never be able to tell our full story in court, it is apparent that a trial many months from now would have left FSU fighting over the past rather than looking toward its very bright future. We have decided to instead move forward even though we have full faith that the ultimate outcome of a trial would have been consistent with the previous law enforcement investigations and retired Supreme Court Justice Major Harding’s findings in the student conduct hearing.

I am not going to go back to rehash the student conduct hearing. I will just remind readers that it was somewhat of a comedy of errors--but not funny in the least. Whatever Harding's credentials as a judge, his expertise did not extend to overseeing and judging a student conduct hearing.

FSU was correct about the costs of litigation. Only $250,000 of the settlement is going to Kinsman. The rest covers her legal costs.
CORRECTION: New sources have emerged since this story broke, and I posted that this was breakdown of the settlement. The statement was from FSU. But the division of the settlement is to be determined between Kinsman and her legal team, who say that the $700,000 is what FSU determined legal costs to be but is not reality.

What else has this cost FSU? As part of the settlement,  FSU has committed to five years of of sexual assault awareness, prevention and training programs. Curious. Not sure what will happen after five years. These things are basically required anyway. There will be annual reports discussing these programs in an effort in "increase transparency." The latter has been an issue. One astounding fact that would have been brought up at trial is the statement from the former director of the Victim Advocate Office claiming that of the 113 reports of sexual battery to their office in 2014, the university reported only 9 to the federal government (Clery Act violation). This may be an issue, though, when OCR does its investigation. The university still has to contend with that.

Friday, January 22, 2016

The latest from Iowa

The Iowa Civil Rights Commission has been investigating the 2014 firing of field hockey coach Tracy Griesbaum. The results, issued in early December in a brief report by the commission, clear the path for Griesbaum to file discrimination lawsuit against the university. It is expected she will do so in the next few weeks. The report states that there was a "reasonable possibility" that the coach's dismissal was a result of gender discrimination and that the university has not provided evidence that her dismissal was the result of a combative nature (one of the university's claims for her termination).

In related news, the complaint filed by four current and former field hockey players in the wake of Griesbaum's firing will bring OCR to Iowa City some time this spring. Though the complaint deals specifically with the treatment of female coaches, OCR will assess the entire program and could issue a report on, in addition to coaching, things such as access to facilities and medical care, availability of practice times and equipment, quality of travel and competition. In other words, this visit is not just about whether there is discrimination against female coaches, it will be about whether there is equal treatment in the department. What we have seen is that when there is disorder in one part of the house, there are usually messes elsewhere. The university may be working hard on its defense in the presumed Griesbaum lawsuit, but the athletics department should also be doing an assessment of the overall state of the department and making proactive (in terms of an OCR visit; obviously things should already be in order) moves to demonstrate to OCR that they are committed to achieving equality in the department.

Thursday, January 21, 2016

OCR Promises More Transparency for Religious Exemptions

The Department of Education's Office for Civil Rights has promised a U.S. Senator that it will improve the public's access to information about institutions that have applied for and received exemptions from Title IX on religious grounds.  The statute permits religious institutions to seek exemptions from compliance on matters that conflict with religious doctrine. After receiving a letter from Senator Ron Wyden (D-Or) and others expressing concern about the exemption's affect on LGBT students' rights, OCR replied, in relevant part:

I think OCR should go even farther than just making the list of exemptions available on its own website; I think it should require exempt institutions to publish the fact of their exemption on their own publications and marketing materials.  This would be consistent with the agency's current approach to Title IX disclosure more generally, as it  requires every school subject to Title IX to include a nondiscrimination notice "on the recipient’s website, at various locations on campus, and in electronic and printed publications for general distribution" as well as include it "in any bulletins, announcements, publications, catalogs, application forms, or recruitment materials."  As a condition for granting the exemption, OCR should require religious institutions to including information about the exemption as part of these notices.

For additional background, analysis and critique of Title IX's religious exemption, see Amanda Bryk, Title IX Giveth and Title IX Taketh Away: How the Religious Exemption Eviscerates Protection Afforded Transgender Students Under Title IX, 37 Cardozo L. Rev. 751 (2015).

Saturday, January 09, 2016

OCR Criticized for Process Used to Create Dear Colleague Letter

In a "sharply worded missive," two Republican Senators criticized the Department of Education last week for process it used to develop the guidance contained in the 2011 Dear Colleague Letter that clarifies universities' obligations under Title IX to address campus sexual assault.

As I told the reporter from Inside Higher Ed, I believe that it was legal for the Department to consider it guidance exempt from the notice-and-comment procedures that agencies have to follow when they promulgate binding regulations.  The Administrative Procedure Act, which sets those requirements, exempts interpretations of existing regulations from that process, and the Dear Colleague Letter qualifies as an interpretation of Title IX's regulatory requirement that institutions provide a "prompt and equitable" response to reports of sexual violence.
 “The letter takes those words -- ‘prompt and equitable response’ -- and gives them a specific meaning,” [I] said. “The department already had the enforcement authority to bring enforcement action against an institution for violating Title IX, because that regulation did go through notice and comment in the 1970s. The department could have chosen to exercise that option for the guidance, as well, but that takes a lot of time. All the letter does is say to colleges, ‘You’re not getting the message, so we’re going to tell you in advance what the compliance standard is, so if you want to avoid an enforcement action, this is how you do it.’ It's important to get that message out there as quickly as possible.” 
But the advantage of expediency comes with a tradeoff, which is that guidance documents issued without notice-and-comment procedures can more easily be revoked by a subsequent administration. For example, a controversial 2005 guidance document that permitted institutions to use interest surveys to with Title IX's requirement to provide equitable opportunities in athletics was revoked in 2010 by the current administration.  Because the 2005 guidance did not use notice-and-comment procedures, neither did the 2010 revocation.  As I told IHE, "That's the trade-off. Easy come, easy go.”

Friday, January 08, 2016

Assault at Tennessee High School Basketball Tourney

The season is over for a Tennessee high school basketball team that has been at the center of significant media attention after three upperclassmen sent a younger student to the hospital with injuries to his colon and bladder that required surgery.

The three perpetrators have been arrested and charged (as juveniles) with aggravated rape  and assault and kicked off the Ooltewah High School basketball team. The team played four games since returning from the tournament. Then, on Wednesday, the district superintendent, Rick Smith, announced that the remainder of the season would be cancelled. This is what he said:
"This decision is not a reflection upon the coaching staff. Indeed, law enforcement officials have to date found no evidence any adult acted improperly. Likewise, this decision is not meant to punish the boys on the team who are innocent of any wrongdoing and simply want to play high school sports."

So why cancel the season if everything is just fine?  Smith said something about the integrity of the investigation. But it looks like a PR move as more details are uncovered.

Many of us have read the horrid details of the injuries, caused by a pool cue, that happened in December during a high school basketball tournament. The Ooltewah team was staying in cabins near the tournament site. This is where the assault occurred. Though only one person ended up in the hospital, other first-year players were also assaulted in what was initially called a hazing incident.

First, any news source that continues to refer to this incident as hazing is doing harm and minimizing the severity not just of this incident but of the culture that continues to perpetuate the idea that male and team bonding via hazing is harmless ritual. This was assault. It was always assault. It did not start out as hazing and turn into rape. It was a planned sexual assault.

An attorney for the school district has said that part of the school's investigation will include a look at the anti-hazing policy and whether it is being effectively communicated to students. The problem is that hazing is so much more complicated than most of those involved know.

The reason the term hazing exists is because it applies to a specific situation--one in which people act against others with the intention of providing an initiation or bonding ritual. Hazing includes actions that are meant to create an in-group and out-group. One suffers through the ritual/tradition/assault to prove loyalty and thus gain entry. To prove the group itself is special, the "tradition" continues, though the entry requirements often have little to do with the group's goals or function.

The use of the term hazing does not mean that the actions are somehow more acceptable because they do not occur between strangers or seemingly have no higher purpose. Being force fed alcohol is not ok in any situation. Being sexually assaulted is never ok. The use of the term hazing in the popular discourse has had the effect of desensitizing us to the violence that all hazing entails. An incident like this makes people take notice, but many are quick to talk about how unique this incident is because of its extreme violence, thus making room for some acceptable versions of hazing/assault.

One, this is not so unique. A quick look at the literature on hazing will reveal many stories of so-called extreme hazing. Two, we have no idea how often rape, assault and other forms of violence that do not result in hospital visits occur. The culture of silence is strong. Once an individual has endured the assault and gained entry to the group, he is less likely to threaten that position by telling others what happened.

Hazing has been happening on the Ooltewah boys' basketball team for a while I would guess. The perpetrators did not just invent this. They were probably hazed themselves--which is not an excuse. This bring me back to anti-hazing education. Yes, it is important. It is important to send the message that team bonding and acceptance should not be achieved through physical assault. I wonder though if this will be the message. Because this situation will require more than a few (or more likely one based on what I know about training sessions implemented in the wake of a scandal) sessions in which administrators say "don't haze." Because most people--even teenage boys--know that sexually assaulting someone with a pool stick is not acceptable behavior. This was not bonding. This was about power, which is true of all hazing.

Saying "do not haze" will not stop hazing. Whatever culture exists that allowed this to continue needs to be addressed. Something is happening at that school. I am not sure what an investigation will uncover, but I am sure lawsuits and maybe even a Title IX complaint are forthcoming. I have some questions.

When the hazing tradition of being "beaten in" to the team was reported to the coach, an allegation made by the parent of another victim, was it really enough for him to say "stop bullying"? Who is training coaches and administrators about these issues? How were these boys not supervised in the basement of a cabin on a road trip--especially after the coaching staff knew "bullying" was occurring?

Also, I am wondering who thought it was acceptable to send the boy back after his initial hospital visit (he returned later in the night to receive surgery when his condition worsened), to the place where he had been raped. And why did no one there do anything about it at that moment? The discussion has been about the physical injuries this boy suffered, but the psychological damage caused by hazing is just as significant. Sending him back to the cabin where he had been assaulted is unthinkable.

Wednesday, January 06, 2016

Tennessee Athletics Staff Settle Retaliation Suit for $750,000 + Fees

Three former members of the University of Tennessee Athletics Department staff have settled a lawsuit, ongoing since 2012, that challenged pay disparities between their positions that worked with female athletes and those doing the equivalent job for male athletes.  They had also alleged that athletic department officials retaliated against them when they complained about pay discrimination.

Under the terms of the settlement, the university will pay each of the three plaintiffs -- former associate director of sports medicine, Jenny Moshak, and two former strength coaches Heather Mason and Collin Schlosser -- a combined total of $750,000, and will also cover the plaintiffs' attorneys fees, which are estimated to add to another quarter-million to price tag of the settlement.

This case is a good reminder of the various ways that sex discrimination can manifest in athletics. On the one hand, paying the trainers and coaches who work with female athletes less than those who work with male athletes reflects a devaluation of women's athletics, which affects not just women, but men like Schlosser who work in women's athletics as well. On the other hand, the plaintiffs' had alleged that the existence of a "testosterone wall" that kept women from being considered for the more lucrative staff positions working with male athletes.  So women were additionally disadvantaged in that way as well.

Notably, this lawsuit was not the only one that alleged sex discrimination in Tennessee athletics back in 2012.  The other case, filed by the former Lady Vols media director who alleged she was squeezed out because of her sex when the University merged its men's and women's athletics department, had already settled in 2014 for $320,000.

Monday, January 04, 2016

Everyone's talking about waivers

Since Erin wrote about Christian-identified colleges asking for Title IX exemptions, the topic has been getting a great deal of attention in the media. As a reminder, these waivers do not permit complete exemption from Title IX and every school can craft its request however it pleases, but waivers can (and have) be(en) used to: expel transgender students and unmarried women who get pregnant, deny transgender persons access to single gender spaces such as bathrooms, locker rooms, and housing, deny married housing to same-sex couples (students, faculty, and staff)

  • The issue of federally sanctioned discrimination against LGBT students in America's institutions of higher learning has US lawmakers taking notice. A group of senators, including Bernie Sanders, Al Franken, Tammy Baldwin, and Barbara Boxer, have asked Secretary of Education for "greater transparency" in the waiver process. They want, at the very least, a public list of the schools that have asked for and received waivers stressing the need for an informed choice by students and parents.
  • The Human Rights Campaign (HRC) has seconded that motion (or maybe firsted?--not sure who made their announcement first). The group issued a report asking for a list and that the Department of Education keep (publicly available) statistics about the number of requests and waivers granted. HRC's report included some of these statistics, which document the rapid rise in requests from one in 2012 to over 40 in 2015. About 2 dozen requests are still being considered by the Department of Education, but it has yet to deny a school a waiver.
  • As Erin noted in her original post, there is a list of these schools. But it is being kept and published by an LGBT publication, The Column, out of Minnesota. The Column got the list via FOIA requests and what they have done with the information is very impressive because it is more than just a list of the schools. It has an interactive map, similar to the one HuffPo has been keeping on schools under investigation for Title IX violations regarding the handling of sexual assault. It may be the best source for now if one is interested in knowing which schools have made and/or been granted waivers and what they are requesting.
  • Response by conservative Christian groups to the request for lists has used phrases like blacklisting, public shaming, religious freedom, and stifling diversity. Some groups, like the Southern Baptist Convention and the Christian Legal Society, have been providing training and advice to schools seeking waivers, which is why many of the ones filed in the past year are nearly identical. All of these are available at the link to The Column's piece.

Sunday, January 03, 2016

Baylor settles with sexual assault victim

Baylor University has made an undisclosed settlement with a student who was raped by a former football player. Sadly, this is no longer an unusual situation. We have not been writing about all the lawsuits and complaints filed, in part because we do not hear about all of them. This Baylor case just came to my attention with the news of the settlement. I write about it for two main reasons. One, it involves a transfer athlete who was dismissed from his previous institution most likely for reasons related to violence against women. Second, the settlement comes after a successful criminal conviction of the athlete for sexual assault.

The latter: football player (he never played a game, actually, but was on the roster), Sam Ukwuachu, was found guilty of sexual assault in August. Sexual assault convictions are difficult to get. None of the articles I have seen detail what evidence was put forth that was so compelling, but apparently it was not good enough for Baylor which, after its own investigation, chose not to discipline Ukwuachu. The school's investigation consisted of 4 interviews: victim, accused, and a friend of each. Though the victim went to the hospital after the attack, which occurred in October of 2013, had a rape kit done and spoke to the police, none of this evidence was considered by the investigative team. The investigation was so controversial that the defense was not allowed to reference it during trial. 

Though criminal charges were still pending, a member of the Baylor coaching staff said they expected Ukwuachu to play in 2015 and patted themselves on the back for handling everything so well.

Head coach Art Briles said the same month his player was convicted: “We’ve sat back and waited for it all to take shape and see what the outcome is. So, I like the way we’ve handled it as a university, an athletic department and a football program.”

Baylor will still undergo an OCR investigation for its handling of sexual assault complaints. 
In short, the school's investigation, which requires a lower burden of proof, found Ukwuachu not responsible. A criminal court, where so may rape cases do not even make it because prosecutors do not feel they can convince a jury beyond a reasonable doubt given the evidence and testimony, found him guilty. 

Even in reporting the conviction and now the settlement, the media focus remains on what Baylor knew about Ukwuachu's past. Originally recruited and attending Boise State, Ukwuachu was dismissed from that team and left Boise in May 2013--to attend Baylor. Briles says the former BSU coach Chris Petersen did not mention the allegations of domestic violence against the player which involved a romantic partner. Petersen claims that he did indeed discuss these things. Boise State issued an official statement saying that Ukwuachu's dismissal had nothing to do with violence against any women. Adding to the allegations, innuendos, and incomplete stories is the fact that former Florida head coach would "not touch" the player because of the rumors about his behavior. Interestingly, the SEC, which Florida is a part, will not admit student-athlete transfers with records of violence--though this rule was not in place at the time.

The question that remains for me is who will investigate these he-said, he-saids and who in the administration, including the athletic department, knew what--and when. Will OCR look into it when they go to campus for their investigation? Does the NCAA care anything at all about this pattern of passing players with records from one institution to another? The policy around transfer athletes should be part of a school's sexual assault policies and procedures. Keeping athletics as tuns on their own bottoms has proven to be harmful, and it is time to stop viewing them, their leaders, and their student-athletes as distant and/or distinct entities.