Wednesday, March 30, 2016

Courts Address Disciplined Students' Title IX Claims in Two Cases

Federal courts in two separate cases have recently considered university's motions to dismiss claims by students disciplined for sexual assault that challenge the disciplinary process on constitutional and Title IX grounds. Here is a summary of each of those decisions:

In Doe v. University of Cincinnati, two male students who were disciplined (one suspended, the other put on probation and required to write a seven-page paper) for sexual assault in separate matters sued the university, alleging that its disciplinary process violated their constitutional right to due process as well as Title IX. The court granted the university's motion to dismiss both sets of claims.  In its Title IX analysis,the court interpreted the plaintiffs' complaint as alleging bias in favor of complainants (those reporting sexual assault) over respondents (those accused), which is not the same thing as gender bias. Providing interim measures to complainants and structuring a hearing that is sensitive to the complainant's trauma is not necessarily gender bias are moreover requirements of Title IX according to the Department of Education, and as such are hardly persuasive as violations of Title IX. The plaintiffs attempted to connect the alleged procedural disparities to gender bias with statistical evidence that shows only men were ever investigated or disciplined by the university.  But the court reasoned that these statistics are not evidence of bias on the university's part because there are other plausible explanations for this besides bias -- including (one) that the university has only ever received complaints that name male students as perpetrators of sexual assault, and (two) that women are more likely than men to report sexual assault. Nor is the case that males are "invariably found guilty" by the university disciplinary process, as even in the case at hand, one of the plaintiffs was found not responsible of one of the counts against him.

In Marshall v. Indiana University-Purdue University Indianapolis, the plaintiff was expelled and banned from all Indiana University campuses after a hearing found him responsible for sexual assault. The court dismissed his due process and First Amendment claims after finding no support in the law for the idea that the constitution prohibits universities from limiting a disciplined student's right to counsel or interview witnesses in advance or that it requires them to use a standard of proof that is more than "some evidence."  However, the court did not dismiss his Title IX claim, after finding that his allegation of "selective, gender-based enforcement" met the minimum requirements for pleading a complaint. Specifically, he complains that the university failed to even investigate a reported sexual assault that he claims was committed against him by a female student. If proven, that could support a Title IX claim based on selective enforcement. The court was also willing to forgive the omission of details around this allegation, due to the fact that the university "does not deny that it is in sole possession of all information relating to this allegation" and refuses to share with the plaintiff. Accordingly, noted the court, the university "cannot have it both ways" -- withholding information from the plaintiff and simultaneously arguing for dismissal for lack of detailed allegation in the complaint. By allowing the case to proceed to discovery, the plaintiff will be able to access the information that may turn out to prove his allegation of selective enforcement.  When the discovery period closes, the university can put that issue to the test by filing a motion for summary judgment.

Decisions: Doe v. University of Cincinnati, 2016 WL 1161935 (S.D. Ohio Mar. 23, 2016);
Marshall v. IUPUI, 2016 WL 1028362 (S.D. Ind. Mar. 15, 2016).

Tuesday, March 29, 2016

Coach Fired After Dismissing Dating Player From the Team

Last week, news broke that Prairie View A&M University fired its women's basketball coach after she enforced a no-dating policy against two players who were in a relationship with each other.  The players complained to the university that the policy was discriminatory and violated Title IX.  As coach Dawn Brown reportedly has appealed the decision within the university system, she and her agent have also decried it publically as unjust "scapegoating."

Some additional facts about the coach's actions make it less clear that her actions were discriminatory and unlawful.  First, the policy does not single out players from dating each other.  They are also banned from dating coaches, trainers, managers, and other people associated with the program. To be fair, if you isolate the aspect of the policy that addresses players relationships with each other you could conclude that it discriminates based on sexual orientations (since only lesbians would have those relationships).  But the policy as a whole is arguably neutral as to sexual orientation,since a straight player dating a male trainer would be just as vulnerable to dismissal as lesbian teammates dating each other.  To be clear, I can think of better ways to create a policy about intra-team relationships. but a conclusion that this policy discriminates against lesbians is surely no slam dunk.

Even if we read the policy as discrimination against lesbians, it's not clear -- at least to me -- that this was the reason she was fired.  For one thing, discriminating against lesbians doesn't necessarily violate the law -- as much as I'd prefer otherwise.  Texas does not prohibit discrimination based on sexual orientation, and Title IX only covers discrimination based on sex. While one lower federal court has so far endorsed a view that sex discrimination under Title IX includes sexual orientation discrimination, this is not a universal interpretation and one that is not binding in other jurisdictions.
So if Prairie View A&M's explanation is that the coach was fired for "violating Title IX" this is (I hate to say) a stretch.

Legal issues aside, the facts suggested by Dawn Brown to the media also raise questions about the university's motive.  She says that the policy was developed in consultation with the Title IX office, and that the Athletic Director was involved in the decision to enforce the policy against the players in question. If this proves true, this surely calls into question any explanation of Brown being fired over the enforcement of the policy.  And as we have learned from other cases involving terminated coaches, when a university's rationale for firing a female coach doesn't ring true, it is sometimes pretext for discrimination.

Monday, March 28, 2016

North Carolina Law Causes Title IX Violation, Lawsuit Says

A lawsuit filed over the weekend presents constitutional and other challenges to North Carolina's new law, HB 2, which prohibits municipalities from including sexual orientation and gender identity in local ordinances banning discrimination and restricting access by transgender individuals to single-sex facilities. Though constitutional arguments are at the heart of the case, the lawsuit also includes a Title IX challenge to the provision of HB 2 that restricts transgender individuals to using the bathroom or locker room that matches the sex designation on their birth certificate, even if this conflicts with their gender identity and expression. Specifically, the lawsuit names the University of North Carolina system as defendant, and includes as a plaintiffs a transgender man who is a student at UNC-Greensboro and another who is an employee at UNC-Chapel Hill.  These plaintiffs argue that the under HB 2, they are prohibited from access to men's restrooms and locker rooms, and UNC violates Title IX as a result.

This argument could provide a federal court with the opportunity to consider the Department of Education's interpretation of Title IX as it pertains to transgender rights in single-sex facilities, and decide how much weight to give the agency's position that excluding a transgender person from gender-consonant usage is a form of sex discrimination that is prohibited under Title IX.  The agency has expressed this position most recently in the settlement of discrimination case against the school district in Palatine, Illinois last fall.  If the court agreed with the agency's interpretation, it could limit HB 2's application to public educational institution due to the conflict with federal law.

It is also possible that the court could agree with the Department of Education's interpretation but still see no conflict between the laws.  While HB 2 is mandatory, Title IX is not.  It only applies to schools that choose to accept federal funding. The case could be resolved in such a way that HB 2 compliance renders North Carolina schools ineligible for federal funding, a ruling that would not affect the legal status of HB 2 directly -- but would certainly generate political pressure for its repeal.

Thursday, March 24, 2016

Recent sexual harassment and assault cases

A few cases of boys behaving badly recently have gained public attention and can be added to the data that suggest a correlation between male homosocial groups/behaviors and sexual violence.

Just a few months after a few upperclass boys on a Tennessee high school basketball team sexually assaulted a first year player, causing extensive damage to his colon and bladder, a high school football team in Pennsylvania has drawn public attention for its No Gay Thursdays. This was a weekly event at Conestoga High School and entailed sexual assault and harassment, apparently of a "gay" nature since it was initiated by and directed towards boys. The press calls it a form of hazing. (My thoughts on sexual assault as hazing can be found at the above link about Tennessee. They haven't changed much.) There seems to be something deeper at work here, though. To institute a day when behavior that would--under other circumstances--be deemed gay is permissible suggests more than a desire to initiate first-year students. This is more than hazing. The no gay/no homo phenomena among high school boys is causing serious damage.

This time that damage included sodomizing a first-year player with a broomstick. Three seniors were charged with the assault, which occurred in October. Unfortunately, the district attorney, Thomas P. Hogan, of Chester County, Pennsylvania has bought into No Gay Thursday as well and would not charge them with sexual assault. They were charged, as juveniles, with assault, unlawful restraint, and terroristic threats because, according to Hogan, "from our perspective, it's a physical assault and not a sex crime."

It is a sex crime. In most sexual assaults the goal of the perpetrator(s) is not sexual pleasure but demonstration of power that is enacted through a sexually charged act. These boys very deliberately chose this form of assault on a day they set aside for just this type of assault. It is undeniable that this is a sex crime. They should be charged with a sex crime.

No Gay Thursday is not a new event at Conestoga High School, either. Apparently it has been going on for three years and is a well-known secret. Three years. Hogan mentioned that this (sexual) assault is the result of "ignorance, violence, and a lack of supervision." To that I would add a culture of homophobia, male privilege, and silence--all of which are related/overlapping.

The head coach was initially suspended but resigned last week and the rest of the football staff has been fired. The reason provided for the loss of jobs has centered on the lack of staff supervision in the locker room where most of the hazing occurred. I would argue that the adults were also responsible for informing the culture on the team; a culture which should not include hazing of any kind and should also not perpetuate homophobia.

I am so frustrated hearing coaches say--in all of these cases of sexual assault and exploitation--from high schools in Pennsylvania to universities in Kentucky--that they knew nothing. Coaches are notorious micromanagers. They call players the night before games to make sure they are home. They establish and/or enforce training and diet regimens. They intervene when their athletes are performing poorly academically. Maybe they do not know--in some cases--the specifics; but they know what is happening on their teams.

Farther west, at the University of Missouri, a Title IX complaint has been filed within the university over a sexually offensive and threatening email that was sent by a member of a campus fraternity and directed at the women of a sorority. The fraternity and the student have apologized for the email which included the following: “Get your towels ready because it’s about to go down....[W]e get to stick our arrows straight up their tight little asses. Now don’t go be ass hats, go be as social as possible with our new friends.”

Interestingly, not all the news sources are actually posting what was in the letter. I found it here on the student newspaper's website.

The sender, Edward Lowther put the following apology on Twitter: "What I said was unprofessional on every level. I take full responsibility for my actions, and I will take steps to show that what was said in no way defines my morals or the morals of the men of Alpha Gamma Rho."

I don't think unprofessional is the right word here, because there was no professional context. What he said was aggressive and violent and misogynistic and to at least hint at his morals. The theme of today's post seems to be yes, this was wrong, but not wrong in the way you might think it's wrong. The University as well as the Greek community at MU seems to be taking it seriously, however, as they investigate the incident as sexual harassment and more than just unprofessionalism.  

It has not been a good month for Mizzou. Anti-Semitic graffiti was found on campus a few weeks ago. And of course the school is no stranger to Title IX issues.

Finally, a few states over, parents of a University of Kansas rower are suing the university for false advertising and violating the Kansas Consumer Protection Act after their daughter was sexually assaulted in a residence hall by a football player. They were explicitly promised, they said, that the dorms were safe. This was also listed in the school's promotional materials. While that is going forward, the university also conducted an investigation after the student reported her assault a year after it occurred. A student conduct hearing based on the investigation is forthcoming.

While the lawsuit is a slightly differently and certainly unproven tactic, what these parents are really suggesting is that the realities of sexual violence are being hidden by the university. The lawsuit lists at least seven other incidents of sexual assault in the KU residence halls in a year and half period between 2013 and 2014. The parents say that if they had known about these, they would have reconsidered allowing their daughter to attend KU. They admit, however, that they did not check the university's Clery Act report, which actually shows more than the seven incidents cited in the lawsuit. This remains a case about transparency, and it will be interesting to see how a court interprets it.

Friday, March 18, 2016

More trouble at FSU

A "glitch" in the Florida State University student records system, controlled by a third party software company, has resulted in the release of 1600 emails detailing student conduct cases. Some of those are sexual harassment and assault cases which has raised concerns about whether those who complained are now in danger because an accused person could either find who his accuser was and/or the extent and details of an accusation.

The university has apologized but not taken steps beyond that to reassure those who have filed reports in the past that they are safe, according to some of those who have been affected.

If I was a conspiracy theorist, I would question this "glitch" in light of FSU's less-than-stellar record with Title IX issues. Why? Because if students are worried that their reports might not be secure--which clearly they are not--then they will not come forward to report harassment and assault. Lack of reporting is already a problem nationwide. This glitch has institutionalized it at FSU. Fewer reports means that the university does not have to deal with them and they do not have to report them to the federal government, which would make FSU look safer than it actually is. Even though the University took no responsibility for the Jameis Winston situation as they settled the lawsuit brought by Erica Kinsman, evidence about the number of unreported and uninvestigated sexual assaults occurring at FSU certainly raised concerns among potential students and parents who might send their children there.

But I am not conspiracy theorist. And I do not think that FSU administrators are happy about dealing with this situation. [Apparently the Title IX coordinator has been "up all night" addressing the information leak.]

Additionally, FSU is still under investigation by OCR. This situation is not going to help present a picture of an institution that has its Title IX house in order.

So it seems that this is just a really awful situation--for victims. Many of us have been waiting a long time for something to happen to FSU that will make it wake up and take notice of what is happening on that campus. But no one wants that moment to come at the expense of students.

Accused Student's Case Against Columbia Dismissed

Last April we blogged about the lawsuit filed by Columbia student Paul Nungesser, who was accused of sexual assault by a fellow student, Emma Sulkowicz.  After a university hearing failed to find Nungesser responsible, Sulkowicz protested by carrying her mattress in public. Nungesser sued the university for damages to his reputation arising from Sulkowicz's protest. He argued that the university was deliberately indifferent to Sulkewicz's harassment of him, and thus liable under Title IX.

As I predicted, the suit against the university was readily dismissed.  In a decision released last week, a federal court judge in New York reasoned that Nungesser could not establish the central requirement for a Title IX claim: discrimination based on sex.  As the court characterized Nungesser's argument, he experienced sex-based harassment because the allegations against him were based on sexual misconduct.  The court called this a "logical fallacy" that, taken to its logical end, would lead to the conclusion that those who commit or are accused of committing sexual assault is a protected class under Title IX. It is clear that when Title IX prohibits discrimination based on sex, it means based on the plaintiff's sex, not based on the act of sex. And it is clear even from Nungesser's own pleadings that Sulkewicz's conduct was motivated not by Nungesser's status as male, but by his conduct towards her -- in her account, that he raped her, in his account, that he rejected her, but either way, both agree that it is conduct and not status that motivated her actions.

Moreover, Nungesser failed to allege any harassing conduct by Sulkewicz or anyone else. He does not claim that Sulkewicz had any contact with him after the hearing, or directed comments towards him, or even used his name in her protest. And even if she had called Nungesser a rapist, it would have been an accusation particular to Nungesser, not a gender-based slur. The court noted that a person who is falsely accused in public has a remedy in tort law.  However, Nungesser's claim is a Title IX claim against the university, not a slander claim against Sulkewicz.

The court also found that Nungesser's allegations did not establish that he had been deprived of educational opportunities, another requirement for Title IX liability to attach.

The court granted leave to Nungesser to file an amended complaint to correct the numerous deficiencies, noting that it is typical for courts to grant such permission. I  don't think (and I don't think the court thinks) that the result would be much different for Nungesser the second time around; if he had better facts to include in his complaint he probably would have used them the first time.

Thursday, March 17, 2016

Department of Education Settles Athletics Complaint Against Erie Community College

On Tuesday the Department of Education's Office for Civil Rights announced that it was entering into a voluntary resolution agreement with Erie Community College after its investigation revealed Title IX violations in the distribution of athletics opportunities.

OCR determined that the college failed to comply with any of the three tests that measure compliance with the Title IX regulation that requires equity in the number of participation opportunities for each sex.  The college failed the first test, proportionality, because the percentage of athletic opportunities for female students was significantly less than the percentage of female students enrolled at the college. OCR looked at data for three years, the worst of which had a gap of more than 20 percentage points as female students approached 50% of enrollment but received less than 30% of athletic opportunities. It would have taken 122 additional female athletic opportunities for Erie to have complied with the proportionality test that year, and the other years that OCR included in its analysis had disparities that were almost as egregious.

 Nor did the college satisfy either of the two alternatives for compliance.  The second test measures a "history and continuing practice" of expanding opportunities for the underrepresented sex,  The most recent women's team to be added was lacrosse, ten years ago.  Yet in 2009-10 and 2010-11, a few years after adding football, the college eliminated three women's teams, along with their male counterparts, for budgetary reasons.  For this reason, the college does not comply with the second test.  The third test requires the college to demonstrate that the interests abilities of the underrepresented sex are fully satisfied even though there is a statistical disparity in opportunities.  The college could not satisfy this test either.  After dropping three women's sports, the women who participated in them remained interested in playing. Moreover, the college has a 'limited mechanism' for gathering information on women's interest, one that falls short of a formal process that women can use to request additional opportunities.

Having found the college did not comply with any one of the possible compliance prongs, OCR and the college entered into an agreement under which the college agrees to survey female students' interest in additional athletic opportunities, as well as assess unmet interest using other information like regional interest and the popularity of certain sports with Erie's competitor schools.  Based on this information, Erie has agreed to add new opportunities for women until the college comes into compliance with either the first or third compliance test.  OCR will monitor the college's compliance.

This resolution agreement should serve as a reminder to all institutions that despite OCR's increased focus on Title IX's application to sexual assault, it is still enforcing Title IX's requirements for athletics.  It also reminds community colleges that they have the same compliance obligations as four year colleges.

Tuesday, March 15, 2016

Recent transgender policy cases

[I have been putting this post together for a few weeks now so some of the information is not that new, but still important to consider in the overall landscape of trans rights in education. I will post again soon about additional stories that are more recent.]

I am stealing this line from Ed Mazza's HuffPo piece about genital inspections as a prerequisite for public bathroom use. (see end of post for more on this):
"It may be a New Year, but the same old battle over bathrooms is starting all over again."

So here we go:
South Dakota considered legislation  that would prevent transgender students from using bathrooms and locker rooms in accordance with their gender. This is despite the fact that the government has already made clear its stance on this issue when it recently intervened in the case of young girl in Illinois who was prevented from using the girls' locker room.The state's House of Representatives approved the bill by a wide margin (58-10). The bill's author specifically discussed the so-called incursion of the federal government into schools: "The federal government is now telling our schools that these students must have full, unrestricted access to restrooms, locker rooms and shower rooms," Deutsch said. "This means our schools must allow biologic boys and girls to use the same facilities together regardless of biologic sex." Another proponent of the bill said the "movement of transgenderism" is "endorsing confusion in the lives of little kids for whom we're responsible." The bill moves to the senate and then, if passed, to the governor's desk. Though he has not read it, he said it seems like a good idea. If it gets that far, I see lawsuits.

Another issue in Oregon. It was in Oregon, at George Fox University, where the issue of religious colleges receiving Title IX exemptions first drew media attention (though the requests had begun before that).  This time a high school is debating whether a transgender student can use the boys' bathroom. Like in South Dakota, everyone knows about what happened in Illinois, and opponents do not seem to care. At a school board meeting in December, in which this issue was not on the agenda but had gained enough local attention that parents flocked to the meeting, many people had things to say. Earlier in the fall, a letter had been sent home explaining that a trans student would begin to use the boys' locker room for gym class.

We have not been writing about every case of transgender discrimination in K-12, and this one has--seemingly--only just begun. I give it attention here because it was one of the saddest stories I had read in quite a while. Other cases such as that of Nicole Maines or Gavin Grimm or Jayce (the George Fox student) included testimony from their parents, who all stood/are standing behind their children. The paths to this place were different among the parents, but they all got there. The child at the center of this latest controversy does not have that support. Elliot Yoder's mother has not quite gotten there. This is not to say that she will not, but this fight is happening now. And Yoder walked to the front of that meeting hall by himself after standing in the back of the room listening to people talk about him. They invoked the usual: religious freedom (it's a public school) and fears about sexual assault and spying by students pretending to be something they are not. They added some threats of violence. And then Yoder walked to the front of the meeting hall, after hearing members of his own family and some of his friends support his exclusion from the boys' bathroom, and explained his situation.

This is why we need education and legislation about transgender student rights. Because I imagine there are many more students in Yoder's situation--ones who do not have family or local support--who cannot bring themselves to speak out in front of a crowd of people who are, for all intents and purposes, against them. When clear laws and policies are in place and supported vehemently by the administration, then these students can begin to exercise their rights even if they do not have a lot of people in their corner.

In Texas, school superintendents have voted that student athletes must compete according to the sex listed on their birth certificates. The University Interscholastic League, which governs school sports in Texas, had this policy informally but punted a final decision to the superintendents' association. The overwhelming vote in favor a birth certificate policy puts the state in line with only six others.

On a happier note for transgender athletes, but one that has nothing to do with Title IX, the International Olympic Committee has changed its policy regarding the conditions under which transgender athletes can participate. The major change from the previous policy is that participants do not have to undergo sex reassignment surgery. As many critics of former iterations of the policy have noted, surgery is not a performance enhancer and often recovery from surgery can impede an athlete's training. MTF individuals will have to be able to prove they have sustained a specified testosterone level for at least a year. FTM athletes can compete without restriction. This means, I presume, that there will be an exception made for exogenous testosterone. I find this curious given how concerned the IOC has been about testosterone levels.         

Though the IOC will apply these rules to Olympic participants, the new policy serves only as a recommendation to other international federations. In other words, governing bodies in any sport can implement their own rules.

And to end on a smh moment: a Virginia state delegate in the House of Representatives has proposed genital inspections before people go into public bathrooms, including students going into school bathrooms. It may be wrong to even mention this, but genital inspections do not reveal sex. Ask the International Olympic Committee circa 1960. This is, of course, beside the point. What the senator is trying to do is to prevent transpeople from using the bathrooms in accordance with their lived gender. The measure calls for a $50 fine for anyone using a bathroom not in accordance with anatomical sex. The fine can be issued by any law enforcement officer. So in an age where fears of pedophilia abound, there is a proposal calling for adults to inspect children's genitals. Again, pointing out all the problems with this proposal is an exercise in futility. The point is that it is being proposed to shame and out transpeople.

[Don't forget: Virginia is the state where Gavin Grimm is fighting for his right to use the boys' bathroom at Gloucester High School. He has received the support of the Obama administration in his case. The Federal Court of Appeals heard Grimm's case last week. ]

I would like to think that Mark Cole's proposal is a publicity stunt--an attempt at media attention. But I doubt it. It is a response to a perceived threat that people like Cole find so outrageous and it inspires outrageous responses. My fear is that measures that are perceived as slightly less outrageous, such as the bill in Houston will be seen as legitimate in comparison.

Monday, March 14, 2016

Settlement at North Florida

Title IX news out of Florida late last week: a $1.25 million settlement in favor a dismissed female basketball coach.This case flew completely under the radar. News of the substantial settlement was the first we had heard of coach Mary Tappmeyer's claims of discrimination against the University of North Florida and only because friends-of-the-blog emailed us the press release. Since we have yet to write about it, here is the synopsis of Tappmayer's case:

She was dismissed from her position a year ago (March 2015). Her contract, which had been set to expire at that time, was not renewed. She had been the only women's basketball head coach in the program's history, which began in 1991. She alleged that the university fired her as retaliation for complaining about the inequitable conditions for female student athletes and made claims of sex discrimination as well. The university said she had a losing record and that every complaint about discrimination that Tappmeyer brought forward was investigated. These investigation never found that the coach's claims had any merit. Complaints included: academic exceptions (to university  admissions requirements) for male basketball recruits but not female, a larger operating budget--including travel--on the men's side, and disparities in training, office, and locker room facilities.  She got paid less, but claims the university held her to higher performance standards. Her lawsuit also included allegations that administrators spoke badly of her and her all-female coaching staff to student athletes, athletic department employees and donors and that they impeded her ability to coach and recruit.

So why is this case significant? One, it is a large settlement. This hints at the possibility that the university thought it would not have done better in court, though the statement from the university president stated that they settled to avoid extensive legal fees. And it is a large settlement for a case that got very little national attention and was underway for less than a year. Did the university just throw some money at this to make it go away quickly and quietly? Possibly. More on that theory later.

The second reason why this case deserves some additional analysis is because it shares characteristics with other cases we have seen. Tappmeyer did not report her allegations to the Title IX coordinator because she feared for her job. She went to the president's office instead where she was assured her position was safe. In other words, she knew that complaining within the department was dangerous for her. This is reminiscent of another Florida institution, Florida Gulf Coast University, where a group of female coaches anonymously sought help from outside the university to file a Title IX complaint about the inequitable treatment.  

Sex discrimination rarely stands alone. In allegations about the culture of the department, some of which did not make it into Tappmeyer's lawsuit, she noted that Athletics Director Lee Moon engaged in racist and homophobic behavior. He did not want LGBT or black athletes recruited. Regarding the latter he was alleged to have said that audiences will not come out for an all-black team and encouraged coaches to recruit from the midwest. He wanted teams with female head coaches to have male assistants on staff, presumably to challenge the idea that the team was coached by lesbians. There are no people of color in head coaching positions on the men's side. Tappmeyer's replacement is a black man; he is the only Black person in a head coaching position.

Single axis discrimination is rare. We saw this at Penn State with the case of former women's basketball coach Rene Portland. The lawsuit by a dismissed player (which also ended in a settlement--terms undisclosed) alleged race, gender, sexual orientation discrimination. Penn State also used the internal investigation method and found no evidence of the race or gender discrimination. There is a lack of understanding about intersectional discrimination, which is part of the reason why allegations are not proven. But it exists and it contributes to the hostile climate in athletics departments.

Another similarity: discernible patterns. In addition to the racist comments and inequitable treatment, the UNF athletics department had a practice of firing female coaches and replacing them with male coaches, a la University of Iowa. Sometimes athletics directors who are in charge when the discrimination occurs are themselves fired often as a measure to demonstrate that the university is taking the claims seriously and attempting to change the offensive and discriminatory culture. Not at UNF where Moon remains in his position and supported by the administration.

This is also happening at Iowa where the university is standing solidly behind AD Gary Barta who, in addition to having his contract renewed, has just won an award for being the best athletic director!! Though the lawsuits are not yet settled at Iowa and it remains to be seen what happens to Barta, the announcement that the National Athletic Collegiate Directors Association chose him for the Under Armour Athletic Director of the Year Award was startling, to say the least. I realize that this is an aside. Perhaps it deserves its own post, but it certainly speaks to the culture that female coaches are dealing with not just at their institutions but at the national level. NACDA thinks that someone who is at the center of several lawsuits and a federal investigation about gender equity is the best athletic director in the country. I might worry about what is happening everywhere else, if I did not know that this award is the epitome of an old white boys club, let's look out for one another mentality. For a more thorough analysis of situation see this post. While Barta's recognition certainly seems to contradict some of NACDA's own criteria, Under Armour's involvement may be the thing that engenders more outrage about this situation. After all, UA is working very hard to win female athletes and fitness fans away from Nike. The signing of Giselle Bundchen, Lindsay Vonn,  and Misty Copeland along with others to star in "inspiring" ad campaigns in the past two years reflects these efforts. Being connected to this award recipient is a major faux pas for this company at this time. Consumers should let them know that.

Back to Tappmeyer's case and one final point. We like to think that lawsuits and settlements will change attitudes and cultures. While this is possible and we have seen it happen, it is not always a guarantee. I do not see change happening at UNF. Their reliance on internal investigations (versus outside consultants), their support of Moon, and the outright denial of Tappmeyer's claims alongside the roundabout blaming of her for costing them money suggest that things will move along as they always have. Tappmeyer challenged the culture she encountered, but she could not change it. Maintaining the culture of male and white privilege and power cost UNF $125 million. I think that they are happy to pay that to continue on with business as usual.

Friday, March 11, 2016

Sixth Circuit Affirms Verdict Against Wayne State in Pregnancy Discrimination Case

A federal court of appeal affirmed an $850,000 verdict that Wayne State University was ordered to pay to a social work masters student after it failed to address pregnancy discrimination she was subjected to while participating in a school-sponsored internship at the Salvation Army.  Plaintiff Tina Varlesi's internship supervisor made discriminatory remarks about her pregnancy and gave her a negative performance evaluation that lead to her receiving a failing grade that obstructed her graduation from Wayne State's social work program. Varlesi alleged not only direct discrimination on the basis of her pregnancy, but also retaliation for having complained about her supervisor's conduct to university officials.

In appealing the verdict, Wayne State challenged the award as excessive, as well as some evidentiary rulings by the lower court.  The appellate court said that the lower court had not abused its discretion in these matters.  Wayne State also complained about instructions that were given to the jury, including an argument that it was insufficient to instruct the jury to find for the plaintiff on her retaliation claim if they found that the institution took adverse action because she complained about pregnancy discrimination. Even though a recent Supreme Court decision held that under Title VII, a retaliation plaintiff must prove that retaliation was the employer's sole motive (as opposed to a substantial motive, mixed with other considerations), the court ruled that the word "because" in this instruction complied with that requirement, even if we assumed -- which the court did not -- that Title VII caselaw applies to Title IX on issues of retaliation where the statutes are markedly different.

More broadly, the case confirms Title IX's application to discrimination based on pregnancy, as well as the responsibility of educational institutions to address sex discrimination when it occurs in the context of an internship that is part of an academic program.

Monday, March 07, 2016

Field hockey coach files lawsuit & other Iowa updates

The long awaited lawsuit against the University of Iowa was filed today by former field hockey coach Tracy Griesbaum. As expected, the complaint alleges a department culture of discrimination against women and points places responsibility on current Athletics Director Gary Barta who has been in the position since 2006. (Barta's contract was just extended--see below.) Griesbaum is asking for her job back and that measures be taken to change the culture of the department.

Regarding the latter, the complaint cites the retaliation against female coaches who asked for improvements in conditions for female student-athletes, the firing of female coaches and replacement with male coaches, and different standards for male and female coaches in regards to behavior with athletes and win-loss records. The University released a statement supporting Barta in response to the filing.

Iowa settled a lawsuit brought by a former assistant track and field coach earlier this year. Mike Scott was a volunteer in the program and applied for a paid position with the program multiple times (there were several failed searches). He had a temporary contract, but ultimately lost the position to a woman. In his lawsuit Scott stated that the was told that the department wanted a woman to fill the position. The final search did indeed yield a female coach. It seems like this insistence on a female coach was an attempt to counter the ongoing allegations against female coaches that existed before Griesbaum's lawsuit. Scott received $200,000.

In other somewhat related Iowa news:
The faculty expressed their concern with the ways things are operating within Iowa's administration. The controversial process and selection of the new president, J. Bruce Herrald, a businessman with no experience in academic administration, already had faculty and other Iowa community members concerned. So recent moves by the administration, including the reappointment of Barta draw criticism all around and a public letter from the university's chapter of the AAUP.

Regarding Barta's reappointment, they noted that--according to AAUP philosophies of university governance--faculty are responsible for the welfare of students, including student athletes, Regarding the latter, there is a committee comprised of faculty members who look at and address issues in the athletics department and make recommendations. The Presidential Committee on Athletics also participate in job searches for staff members who work with student athletes.The PCA was not part of the decision to extend Barta's contract. From the letter:

Despite these directives that faculty be involved in important decisions involving student athletes, early this year your office extended the contract of Athletics Director Barta for an additional five years. There was no consultation with the PCA. This happened in a year in which — though there was impressive success on the playing fields — significant concerns were raised regarding gender equity in athletics. The university now faces investigation by the U.S. Department of Education in response to student athletes’ complaints.



Thursday, March 03, 2016

Disciplined Student's Title IX Claim Survives Cornell's Motion to Dismiss

Last week, a federal district court in New York denied part of Cornell's motion to dismiss a lawsuit against the university filed by a student whom it had conditionally expelled for sexual assault.  Like the decision against Brown that we blogged about last week, the ruling allows the plaintiff to continue to litigate his "erroneous outcome" claim against the university.

To proceed on a Title IX/erroneous outcome claim, the plaintiff must plead: (1) "facts sufficient to cast some doubt on the accuracy of the result of the disciplinary proceeding"; and (2) "particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding." The plaintiff's complaint against Cornell contained several allegations that satisfy the first requirement, including that investigators ignored exculpatory statements of several eyewitnesses and ultimately produced a biased report. Apparently, Cornell's disciplinary hearing process provides little opportunity for a respondent to challenge the findings in the investigators report, so the claim that the report was deficient calls the proceeding's outcome into question.

As for the required allegations of gender bias, the court found the plaintiff's complaint sufficient based on the "totality of the circumstances" described in the plaintiff's complaint, including that:
Jane Doe was treated more favorably than Plaintiff, that the investigators seemingly slanted the Investigative Report against Plaintiff, a drastic change in position of one investigator in the closing weeks of the investigation, and the possibility that male respondents in sexual assault cases are invariably found guilty at Cornell.  
Cornell pointed out that the "men are invariably found guilty" allegation has been rejected by other courts as a "conclusory" allegation that lacks the requisite specificity to satisfy the pleading standard. But the court rejected that argument, pointing out that reading it together with the other allegations of bias turns it into an allegation that is sufficiently specific:
Further, unlike in Doe v. Columbia where a similar “invariable treatment” allegation was rejected as “wholly conclusory,” see Doe v. Columbia, 101 F. Supp. 3d at 369, Plaintiff alleges that anti-male bias was exhibited by the differential treatment he and Doe received during the administrative process, by the on[e]-sided manner that the investigation was conducted, and by the outcome determinative style that the Investigative Report was drafted.
Notably, then, this court appears to view the "differential treatment" and problems with the report as allegations of gender bias, in contrast to the position taken by others courts that allegations of bias against respondents is not the same as bias against men.

Besides the erroneous outcome claim, the plaintiff's selective enforcement claim was dismissed for lack of allegation that women are treated more favorably when they are in the position of respondent. The court also permitted the plaintiff the opportunity to clarify his breach of contract claim and possibly continue to litigate that as well.