Major failure at Oregon

I have a healthy suspicion of mass firings as a cure-all for problems with intercollegiate athletes who commit sexual violence (see for example, Baylor). Firings do not automatically change culture (see Penn State and the vehemence with which students protested the firing of Joe Paterno).

In the case of University of Oregon, however, a house cleaning was in order after a 2014 report of sexual assault by several basketball players, one of whom had transferred to UO after being kicked out of Providence College for alleged participation in a gang rape. Despite the allegations by an undergraduate female, the players were not suspended from the team until after the post-season; a move that drew considerable criticism. We blogged about it several times including when there was a settlement that ended the lawsuit brought by the victim against the university; a lawsuit that included head men's basketball coach, Dana Altman.

Altman and others at the university including the Title IX coordinator and the president are now implicated in the case involving basketball player Kavell Bigby-Williams who was under investigation for forcible sexual assault ALL OF LAST SEASON.  

Last season was Williams's first. He transferred from a junior college, Gillette College, in Wyoming. His former school, which he was visiting right before moving permanently to Eugene in the summer of 2016, is where the assault took place. Allegations include non-consensual sex with a female student. One of the Gillette police investigators attempted to speak with Bigby-Williams and when she was not successful she contacted a detective with UO police who also tried to interview Bigby-Williams until she received a call from the lawyer representing the athlete; the lawyer is based on Wyoming and is Bigby-Williams's former assistant coach. 

Oregon's Title IX coordinator was alerted but she never reported the investigation and allegations to the director of student conduct and community standards per UO's own published policies and procedures--revised after the 2014 allegations. A team should have convened to assess the situation and determine if emergency action needed to be taken to protect members of the campus community based on the evidence available. Some administrators contest that this does not always takes place, while others says there was not enough information about the allegations in Wyoming to move forward. This was not true because the Wyoming police had sent police reports to the school. Nevertheless UO never conducted its own investigation into Bigby-Williams who continued to play on the team and make the coach who recruited him very happy.

Altman claims he did not know about the exact allegations and others at UO corroborate his story by saying they shielded him from knowledge of the exact nature of the allegations because there was not going to be an investigation.

The logic is dizzying--and the "defense" is likely not true. The student journalist who was covering the story requested the coach's (publicly paid for) cell phone records. The university took over 100 days to produce them and charged the student almost $500 for the records which revealed a series of calls between Altman and the deputy Title IX coordinator and Altman and Bigby-Williams's former head coach--all within 48 hours of the school's notification of the assault investigation.

Here is the recap: a current UO basketball player was accused of rape at another school. Oregon was notified of the allegations and was sent extensive police records. They did not follow their own procedures when they failed to do an immediate assessment and subsequent investigation. They have apparently lied about who knew what when. And, in general, they have continued to behave badly. President Michael Schill was asked about his awareness of the situation by student journalists in the early fall. He said he didn't know anything and then got snippy--and highly unprofessional--with them: "In any event, I can’t comment on an individual student. What if I was asked by another reporter about you being obnoxious? Would you want me to tell them that?"

Oh yea, and the athletics department is currently facing sanctions from the NCAA over program violations--which they are contesting. They self-reported the violations* in men's and women's basketball as well as track and field. But they are disputing the severity of the infractions (NCAA has a four category violation hierarchy). Athletics Director Rob Mullens said of the coaches involved: "they have the highest ethical standards on and off the court, and each acknowledges the infractions that took place within their programs."

That he can say that just weeks after the Bigby-Williams situation came to light is gratingly hypocritical as are his pat-ourselves-on-the-back references to the monitoring program that found the violations and the compliance training that will be done in light of the violations.

Where is the program monitoring the character, behavior, and potential issues with recruits and athletes currently on campus? Where is the accountability for administrators who are not only not doing their jobs, but breaking the law?

I initially thought this was a complicated situation what with two sets of campus police and two sets of administrators. But it is not complicated. Oregon had a duty to investigate once it was informed that one of its students had been accused of rape. They did not. At least a handful of people have apparently lied at various stages to the Oregon community and certainly to the public if not to each other.

Yet, no one seems in danger of losing his/her job.**

Maybe that's because the Ducks are currently first in the Pac-12 despite all these "distractions."

It's not complicated at all.





* Also noted for the record, the university in 1981 had a violation deemed "lack of institutional control" over several programs, including men's basketball.

**  If I had to speculate, the Title IX coordinator and deputy coordinator will be ousted if there is a call for accountability.

Is #metoo for colleges and sports?

The recent, daily, and ongoing revelations about sexual assault and harassment in Hollywood, the media, and government may be disheartening, heartbreaking, maddening but likely not surprising.

If there was ever any question that sexual assault and harassment is an epidemic, that question should now be answered. The past several years, however, in which we saw more and more activism around and attention given to campus sexual assault should have been an indication--in the form of a giant, blinking neon sign--that this is a problem.

I have been thinking a lot about the recent accusations, confessions, and the general discourse and how it relates to what we already know, steps already taken, and what comes next. The rest of this post includes my initial thoughts about how what has happened on college campuses is related to the current moment.

As someone who has written and spoken about campus sexual assault for a very long time now, I am somewhat dismayed at the cultural shock over the idea that some men behave very badly. College women have been telling us for decades about sexual violence in higher education. To think that incidences of rape, assault, and harassment decrease after college is naive--at best; as if men grow out of the behavior or women become less susceptible. So I find it curious that no one (that I have seen) has made any connection between the movement to hold colleges and universities (and K-12 as well) accountable for investigating and ultimately decreasing sexual violence and the recent news about the assaults committed by powerful men in influential industries.

Perhaps it is because the recently accused men are famous and most of the college males accused are not. (The exceptions, of course, are the athletes in big-time athletics programs--more on this in a moment.) All these famous men were once anonymous young men, too. Power is certainly a factor--but is it a factor in who commits these crimes or in how it enables some to get away with them for so long?

One reason for the campus sexual assault epidemic being ignored in the current discourse about sexual violence is because it happens in the context of college. It has been very difficult to overcome the popular image of college men and women drinking too much and making "bad choices." The siloing of sexual violence committed by college students continues to perpetuate these stereotypes about how college men and women act and thus normalize sexual violence on college campuses. This is evident in how both the accused and the accusers in the recent stories are being treated.

I see far fewer people supporting the accused. In cases of college sexual assault there is still a very active backlash movement in which accused men are suing their schools--sometimes using Title IX--accusing administrations of gender discrimination during the student judicial process. There is not a lot of complaining about the actions (firings, suspensions) being taken against the recently accused famous men of Hollywood and mainstream media. And only a few--Roy Moore, most notably--have fought the accusations against them. Just like the student conduct processes many accused go through, the actions against these famous men are occurring outside the criminal justice system; again with very little questioning of this version of "justice."

Related to the above: far fewer people are questioning the accusers. While I am pleased to see this, I am shocked given what I have seen and read about in cases of campus sexual assault. How much did she drink? What was she wearing? Did she not know about that fraternity's reputation? Maybe she just changed her mind. How many other people did she kiss that night? Did she have a boyfriend? Most people seem to be believing the women who have come forward with accusations--even the ones who have done so anonymously. Campaigns to #believewomen are great, but I do not see them being extended, with the same force, to college women.

I do not know if we will begin to connect the dots--that sexual assault and harassment is product of (mostly) capitalist institutions imbued with patriarchy and misogyny whether that is a college or Congress. But we need to if we want college women's accusations against their male peers to be taken as seriously as actresses' charges against studio bosses.

Maybe we will. I have seen more and more accusations by current or former students--especially graduate students--against professors. There is a similar power dynamic in these relationships: someone controls another's future, success, career. How will these accusations be treated in light of those against the growing list of powerful men? While I will not guess at that, I do predict these accusations will grow. More former students, emboldened by those who have come forward, will speak out about the harassment and assault by men in academia.

What I remain uncertain about is whether the cultural moment will create a space for the women who have experienced sexual violence within sports cultures. If Jameis Winston had been accused last week of rape would Florida State have reacted differently than it did three years ago when it did nothing (except protect Winston and let his accuser be run out of Tallahassee)? Is the so-called tipping point we have allegedly found in regards to sexual violence going to spill all over the hallowed football fields of American universities and colleges?

We must also look at professional sports culture and sports media. Regarding the latter, the women of the Burn it all Down podcast addressed the lack of accusations in sports media where misogyny and harassment of women are well known and sometimes even documented (see the case of Erin Andrews).  As for the former, I wonder what will happen when the next woman comes forward to accuse a famous professional male athlete of rape. Will we believe her like we believed those who have spoken of the abuse by Louis C.K.? Or will we accuse her of being a gold digger or someone looking for 15 minutes of fame?

We have not "tipped" as a culture toward addressing and taking seriously sexual violence and harassment unless we take college women's accusations seriously and our concern for these issues extends into the behaviors of the powerful men in collegiate and professional sports and sports media.

Oklahoma Jury Awards Transgender Professor $1.1 Million in Tenure-Denial Discrimination Suit

In 2015 we blogged about a lawsuit filed by the Department of Justice on behalf of a transgender professor, Rachel Tudor, who was denied tenure by her institution Southeastern Oklahoma State University.  At the time, we found it noteworthy that DOJ was taking the position that Title VII's prohibition on sex discrimination necessarily includes discrimination that targets someone for their transgender status, and we noted that a favorable outcome in this case would benefit transgender litigants under Title IX as well. 

2015 seems like a bygone era when it comes to the government's enforcement of civil rights, so it is particularly heartening to report that yesterday a jury of eight Oklahomans found in Tudor's favor and awarded her $1.165 million in damages. They reportedly found that the University was liable on three counts: denying Tudor the opportunity to apply for tenure in 2009-10 because of her gender, denying her again the following year because of her gender, and retaliating against her after she complained about workplace discrimination.

This really is a big deal.  A member of Tudor's legal team noted that this is the first transgender discrimination case under Title VII to make it to a jury trial. For her to win -- bigly -- in court that drew its jurors from a state not exactly known for being progressive on LGBT rights, shows that the law and culture are both shifting in favor of a necessary and expansive view of civil rights. 

High School Boy Challenges All-Girl Dance Team Rule

Today I was interested to read about a Title IX complaint filed by the Pacific Legal Foundation -- a public interest law firm that usually argues to overturn regulations, not enforce them --  on behalf of a male high school student in Minnesota who is challenging the "girls only" rule for dance teams in the state. There are two reasons why I think that this complaint is valid.

First, while it is theoretically possible for dance teams to be considered sports for Title IX purposes, that determination turns on whether institutions treat those teams in the same manner that sports are treated. To be considered sports, dance teams must have the same opportunities for regular season and post-season competition, be run by the athletics department, receive the same kinds of support as sports teams, make decisions for eligibility based on athleticism, and other similarities. However, the Minnesota State High School League, which issues statewide rules for sports and other activities permits schools to make "local decisions" about how the schools will treat their dance teams, a standard that seems to acknowledge the possibility that some, maybe many, do not treat them like other sports. I suspect that the most obvious way in which they are different from sports is that dance teams exist for the primary purpose of performing and compete as a secondary matter. My concern seems justified by the fact that the competition schedule for the dance team of Superior High School, where the complainant attends, has only three opportunities for regular-season competition. By comparison, the boys' swim team has fifteen, for just one example.  Bottom line: if dance is an activity and not a sport, it is not governed by the regulatory standard that permits schools to offer separate male and female sports teams, and the complainant should win.

But even if dance team is a sport, the applicable Title IX regulations only permit segregated teams if  "selection for such teams is based upon competitive skill or the activity involved is a contact sport."  Dance team is surely not a contact sport, so we have to ask: is selection based on competitive skill?  I don't know, but if Minnesota dance teams take any girl who tries out, then they are not based on competitive skill and they can't be segregated, and that's the end of discussion right there.

If selection is based on competitive skill, then it is permissible to have an all girls' team. However, Title IX still may permit boys to try out. That's because the regulations also require schools to permit "crossover participation" (a boy on a girls' team or vice versa) where there is only one team in that sport. There is an exception to this rule for contact sports, but dance team does not qualify for this exception. The other requirement for cross-over participation is that "athletic opportunities for members of that sex have previously been limited."  To be sure, this requirement is subject to multiple interpretations, one being that boys have historically had more athletic opportunities in general and therefore are never eligible to try out for girls teams.  But boys have prevailed before by arguing that their opportunities in that sport have been limited, an argument seemingly applicable to dance team and one that supports this student's claim that the exclusionary rule violates Title IX.

Ultimately I think the Pacific Legal Foundation attorney's statement to the press about this complaint is right on: the rule excluding boys from dance team perpetuates archaic gender stereotypes about the kinds of activities suitable for each sex. As this example shows, these stereotypes limit opportunities for boys and girls alike.

SUNY Albany lawsuit

This past spring SUNY Albany's athletics director made the decision to cut the women's tennis team. The problem with the cut, in terms of Title IX compliance, was that Albany does not meet the proportionality prong. When a university cuts a women's team it must, by default, provide opportunities proportional to the gender breakdown in the undergraduate student population because it is neither expanding opportunities for women nor is it accommodating the needs and interests of students (because there is a viable team of interested women--the team that just got cut). 

The decision was contentious because AD Mark Benson told head coach Gordon Graham, who is part of the lawsuit, last spring that the team was being cut and Graham told his players, most of whom were international students who had to negotiate visa and recruitment issues, about the cuts which was supposed to stay a secret until the end of the season. Graham also filed a complaint with OCR. According to this article, Albany would have to add 97 opportunities for women in order to meet prong two.

OCR investigated this fall and found that the university was not providing equitable opportunities. Albany entered into a voluntary resolution agreement that included a three-year plan to increase athletics opportunities for women. However this statement from Benson makes me wonder exactly how they plan on achieving equity: "We have no plans to add any teams or bring teams back and no plans to cut any programs. We're not in a position from a budgetary standpoint to do that."

The university needs to recover money, allegedly, from the loss of revenue from the New York Giants who held summer training sessions on the campus.

Does Benson plan on adding 97 spots to current women's teams? 

This response may be why four athletes and Graham filed the lawsuit. The athletes are seeking reinstatement of the team. Gordon is also alleging age discrimination (he is 65) saying that he was pressured to retire before being told his contract would not be renewed. No report on when the lawsuit will be addressed in the courts.

No Evidence of Anti-Male Bias in Colgate Case

I strive to keep up with the decisions in cases brought against colleges and universities by students who are disciplined for sexual misconduct, in particular, the cases in which plaintiffs alleges that a university's decision to discipline them was motivated by bias against men, in violation of Title IX. Many of these types of claims are dismissed early in the litigation due to failure of the plaintiffs to allege a specific basis for alleging that gender bias tainted the universities' disciplinary process.  Some example of these decisions from recent months include:

• Doe v. St. John's Univ., 2017 WL 4863066 (D. Minn. Oct. 26, 2017)
• Doe v. Columbia College Chicago, 2017 WL 4804982 (N.D. Ill. Oct. 25, 2017)
• Saravanan v. Drexel Univ., 2017 WL 4532243 (E.D. Pa. Oct. 10, 2017) 
• Ruff v. Bd. of Regents of Univ. of New Mexico, 2017 WL 4402420 (D.N.M. Sept. 30, 2017) 
• Streno v. Shenandoah Univ., 2017 WL 4407938 (W.D. Va. Sept. 30, 2017)
• Stenzel v. Peterson, 2017 WL 4081897(D. Minn. Sept. 13, 2017)

On the other hand, some recent decisions have denied universities' motions to dismiss those claims, and permit the plaintiff to proceed with the next phase of litigation, discovery, in which the plaintiff gathers evidence in support of the allegations they have made. 

• Doe v. Univ. of Chicago, 2017 WL 4163960 (N.D. Ill. Sept. 20, 2017) 
• Rolph v. Hobart & William Smith Colleges, 2017 WL 4174933 (W.D.N.Y. Sept. 20, 2017) 
• Doe v. The Trustees of the Univ. of Pennsylvania, 2017 WL 4049033 (E.D. Pa. Sept. 13, 2017) 
• Doe v. Case W. Reserve Univ., 2017 WL 3840418 (N.D. Ohio Sept. 1, 2017)

At the end of discovery, university defendants have another chance to dismiss the claim by moving for summary judgment. This motion forces the court to consider the quality of the plaintiff's evidence, rather than just the sufficiency of the allegations in the complaint as it does in response to a motions to dismiss. Only by winning at this stage can the plaintiff proceed to a trial and have the opportunity to convince a jury that the evidence demonstrates that the university is liable for gender bias. Far fewer cases make it to this stage in the process, and since decisions involving motions to dismiss disciplined students' Title IX claims have become rather common, it is the summary judgment decisions that are now more interesting to me.

Recently, a federal district court granted summary judgment in favor of Colgate University; dismissing claims of a student that the university had expelled for sexual misconduct. Like many other disciplined-student plaintiffs, the plaintiff here alleged that Colgate's anti-male bias was rooted in the current social and political climate, which has forced colleges and universities to be more responsive to reports of sexual misconduct when they occur. While some courts have dismissed bias claims that are based on these types of allegations, on the grounds that bias (if you will) against sexual misconduct respondents is not the same thing as bias against men, others have accepted that allegations along those lines are sufficient at the motion to dismiss stage. Notably for Colgate's purposes, one such court is the Second Circuit Court of Appeals, which has jurisdiction over the federal courts in New York, where Colgate is located.  Since the Second Circuit's decision in Doe v. Columbia University last year, I've been interested to see what happens to cases with similar kinds of gender-bias allegations as they get further along in litigation and reach the summary judgment stage?  Do plaintiffs manage to marshal enough evidence of the link between a generalized, anti-rape climate, and anti-male bias in their disciplinary proceeding, to make it to a jury? 

In the Colgate case, the court said no, as it dismissed the plaintiff's bias claim on summary judgment. It rejected the plaintiff's evidence, for example, that a "sexual climate forum" held at the university was evidence of institutional bias against men, where there was no evidence that this forum was anti-male.  Nor was the existence of campus activism around survivor support, or Colgate's efforts to comply with the 2011 Dear Colleague Letter, especially given that not all men accused of sexual misconduct at Colgate since 2011 have been found responsible. The court also rejected as evidence of anti-male bias: assurances by campus officials that students found responsible for sexual misconduct will be expelled, training session that used hypotheticals where the person consenting was female and the person asking for consent was male and the victim was female, and some differences in the way that complainants and respondents are treated differently in the disciplinary process.

This outcome should hopefully provide some reassurance to campus administrators that they are not caught between a rock and a hard place when it comes to sexual violence. While it is theoretically possible to imagine actual examples of anti-male bias (a fact that explains the willingness of courts to allow for litigation to continue when the allegations are sufficient), the mere fact of working to prevent and  respond to sexual violence is not inherently anti-male.  Implementing policies and procedures that were responsive to the 2011 Dear Colleague Letter is not inherently anti-male. Awareness-raising is not inherently anti-male. Victim-sensitivity is not inherently anti-male. If this is all that a plaintiff can marshal in support of their bias allegations, it is clear that is not sufficient evidence of institutional bias.

Title IX and the Straw Man

Erin and I both talked to a New York Times reporter last week about whether and how California's new legislation allowing for a gender neutral designation on state IDs would intersect with Title IX regulations. (More on that below.)

My immediate thought, upon hearing that the California Family Council (CFC) was using Title IX as a reason for why the legislation was not a good idea (as their leader stated in a July editorial), was that Title IX is being used again as a distraction, a scapegoat, a tool of division. CFC's president Jonathan Keller was employing the straw man fallacy when he wrote that:"The new “nonbinary”* gender created by this bill would likely be subject to the federal Title IX statute. This means California’s nearly 150 public colleges and universities, and all 10,453 public schools would be required to provide not only male and female athletic teams and facilities but non-binary ones as well. This would result in a massive new federally mandated expense to the state." We discussed why this was not going to happen.

Erin gave the reporter a number of reasons why CFC's legal argument was specious. For one thing, it assumes that the Department of Education is going to be aggressive in its enforcement of Title IX in general (which it is not) and in particular, that it is aggressive in its enforcement of  Title IX as it applies to gender identity diversity and transgender rights (which it has so clearly backed off of). Next, it would require the Department of Education, which enforces federal law, to defer to state law, event though federal law normally preempts conflicting state law. Even then there would be the challenge of reading the Title IX regulations to incorporate new gender categories. Given the use of phrases like  "both sexes" and "one sex ...[and] the other sex,"  realistically the law would not be read to cover a third gender category. Finally, even if  Title IX's athletics regulations did incorporate California's nonbinary gender category, schools would of course only be required to at most provide participation opportunities proportionate to the percentage of students who are nonbinary. Because nonbinary students are a really small percentage of the population, even if Title IX applied, the burden on schools would be small.  I discussed the existing policies at the K-12 and collegiate level and how gender identity was either honored or it was superseded by hormone use (in the case of NCAA sports). Those arguments were easy and we were happy to explain them. What has arisen for me since the article was posted is how the law is used by people who do not care about it being enforced until it can be levied against a more disliked minority group. It was likely inevitable that the law mandating gender equity in education would be used as a tool of division by those who actually do not want equity. CFC's argument above is just one example. Everyone is harmed when the argument becomes about who deserves protection more. In between the lines of CFC's very calmly worded editorial is the following message: "real" girls and women will suffer because of the demands of a deviant minority group. Resources will be drawn from women's and girls' sports to create teams comprised of nonbinary persons. You want gender equity? Well then you cannot have nonbinary equity without it costing you--the taxpayers of California--a lot of money.

The overt hate, the malicious tone that we have seen aimed at transgender and non-binary people was absent from the editorial. But that does not mean that what CFC said, how they pitted women against non-binary people, was not hateful. As Title IX continues to be weakened, it could be easier for arguments like these to gain traction. Playing the oppression Olympics only benefits people like CFC and their supporters.

* I assume he used quotation marks because he does not think nonbinary is a thing. This was a rhetorical/grammatical mistake on his part. Nonbinary is indeed an adjective used to describe real things. Keller does not think nonbinary gender identity is real. He should put the quotation marks  around the phrase nonbinary gender to get his point across. 

Members of Congress Introduce Bill to Restore Withdrawn Guidance

Members of Congress announced this week that they have proposed a bill that aims to codify aspects of the Obama administration's 2011 Dear Colleague Letter and related guidance that was withdrawn by the Department of Education last month. It would also codify some of language in the Title IX regulations and the 2001 Guidance that the Department of Education is endorsing for now, but which could in the absence of statutory law theoretically be amended by new regulations or policy interpretations promulgated in the future.

The bill, authored by Representative Jackie Speier (D-CA) is called the Title IX Protection Act (H.R. 4030), and it would require that institutions:

• to designate a Title IX coordinator, and to disseminate a notice of nondiscrimination based on sex.
• to adopt and publish grievance procedures providing for prompt and equitable resolution of sex discrimination complaints. Grievance procedures may include voluntary informal mechanisms (e.g., mediation) -- but not for sexual violence cases.
• to address sexual harassment, including sexual violence, about which a responsible school employee knew or should have known. 
• to take "immediate action" to address a hostile environment created by sexual harassment, designed to "eliminate the harassment, prevent its recurrence, and address its effects". An actionable hostile environment is one "sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program," including an isolated incident of sexual harassment if the incident is sufficiently severe, such as rape.  This requirement to take action also includes interim measures to help the complainant deal with the effects harassment and avoid contact with the perpetrator.
• to process all complaints of sexual violence, regardless of where the conduct occurred, to determine whether the conduct occurred in the context of an education program or activity or had continuing effects on campus or in an off-campus education program or activity; this requirement applies even if law enforcement is already investigating. 
• to use the preponderance standard of evidence to adjudicate sexual misconduct matters --this had been a key requirement of the 2011 Dear Colleague Letter, but one that the current administration abandoned when it permitted institutions to substitute the higher clear and convincing evidence standard.
• to provide symmetrical procedural rights to both the respondent and complainant, including the right to attend the hearing, to present relevant witnesses and other evidence, to access to information that will be used at the hearing, to be accompanied by an advisor, and to appeal the initial decision. 
• to permit cross-examination by a third-party -- in order to minimize the potential trauma or intimidation to the complainant of being questioned by the person they have accused of sexual violence.
• in cases where the complainant requests confidentiality (thus limiting the school's ability to discipline the alleged harasser), to "pursue other steps to limit the effects of the alleged harassment and prevent its recurrence."
• to conclude investigations approximately 60 calendar days, with an exception for cases involving multiple incidents with multiple complainants or where there is a parallel criminal investigation.

Unfortunately, it is difficult to imagine this bill getting much traction in Congress in this political climate. Nevertheless, I believe this bill is valuable because it can serve as a focal point for political activism. It may produce a legislative record that could influence the political debate ongoing in general and in particular in the Department of Education as it considers revising the existing regulations and policies. Finally, the bill serves as a general reminder of the role Congress has to play in challenging the president when it disagrees with the administration's policies. 

OCR Finds State Agency Did Not Correctly Apply Title IX to Annual Reviews of Scholastic Athletic Programs

In Washington State, the state agency in charge of public schools (called the Office of the Superintendent of Public Instruction, OSPI) receives federal funding and administers some of that funding to local school districts.  As such, OSPI is required to comply with Title IX and may not aid or perpetuate discrimination by funding school districts who do not comply with Title IX. To that end, OSPI monitors the Title IX compliance of its school districts. Among other things, OSPI collects and reviews the self-evaluations that it requires school districts to annually conduct of its athletics programs' participation rates.

The Department of Education's Office for Civil Rights began an investigation into OSPI's Title IX monitoring process in 2011, after receiving hundreds of complaints about Title IX violations in Washington's public schools' athletics programs. This week OCR announced its conclusion that OSPI was not properly applying the three-part test when reviewing the school districts' self-evaluations of compliance.

The three-part test requires an athletic program subject to Title IX to either (1) ensure that percentage of athletic opportunities for each sex is substantially proportionate to the percentage of each sex in the student body; OR (2) that the program has a history and continuing practice of expanding opportunities for the underrepresented sex; OR (3) that the interests and abilities of the underrepresented sex are being met.

OCR did not find any problems with how the OSPI was applying parts 2 or 3, but it did find fault with the way it determined compliance with part 1. In particular, OSPI only found that schools failed to comply with this part if it would have taken more than 15-20 (depending on the size of the school) new opportunities for the underrepresented sex to bring the school into proportionality. In contrast, OCR has said that except when disproportionality is caused by natural fluctuations in enrollment, the only time a school does not have to be in exact proportionality is if the number of new opportunities needed to reach proportionality is smaller than the number needed for any new viable team. 

Given that there are lots of sports that can run with 15 or fewer students, it is not surprising that OCR found "some instances" where OSPI "perpetuated discrimination" prohibited by Title IX by permitting some school to pass the review when they should not have. OSPI is now obligated to modify its practice so that it applies the appropriate standard going forward, and is subject to monitoring by OCR to ensure it does so.

I thought this enforcement action was noteworthy because of its state-wide impact. In the past, complainants have tried to focuses OCR's attention on widespread noncompliance by filing dozens of complaints at once against school districts who do not appear to comply with the first part of the three part test. OCR has found grounds to dismiss these complaints without investigation or resolution, probably because of the practical limitations of actually conducting all of those simultaneous investigations. But if OCR keeps close track of how state agencies that distribute federal funding are applying Title IX, the agency can have still have state-wide impact. I wonder if we will see more these kinds of investigations initiated in other states.

6th Circuit Affirms Injunction Against Suspension of Student Whose Accuser Did Not Attend Hearing

A male student at the University of Cincinnati sued the university after was suspended for one year after a hearing panel determined he was responsible for sexual misconduct of a female classmate. He sought a preliminary injunction that would allow him to continue as a student while the merits of his case is being litigated. A district court granted that injunction, and yesterday the Sixth Circuit Court of Appeals affirmed.

To prevail on a motion for preliminary injunction, the plaintiff must demonstrate a likelihood of eventual success on the merits. Here, the Sixth Circuit agreed that the student's due process claim was likely to succeed.The hearing panel found the student responsible for sexual misconduct on the basis of the Title IX investigator's report, which contained statements by the female complainant. The female complainant, however, did not attend the hearing, and as such, was not available for cross-examination by the respondent. The respondent disputed the complainant's version of the events in question -- his testimony was that their sexual relations were consensual, and her statement, presented in the report, was that it was not. Accordingly, the deciding factor boiled down to the panel's sense of the respective parties' credibility. And because she was not present, he was not able to subject her testimony to cross-examination, which theoretically could have exposed inconsistencies or other characteristics that could have been relevant on the issue of credibility.  Thus, the appellate court determined, the plaintiff is likely to succeed on his due process claim.

The court emphasized the narrowness of its holding. It is not saying that respondents automatically win when the complainant does not attend the hearing; only in situations where credibility proves to be the deciding factor does the complainant's absence undermine due process. In cases where other evidence tips the balance, like cases with physical or video evidence, or other material witnesses who attend the trial, the complainant's absence from the hearing would not matter. Nor would it matter in case where the respondent admitted responsibility for the charge.

Additionally, the court emphasized that it is not insisting that universities permit the kind of cross-examination that one would see at a judicial trial, where the attorneys aggressively and doggedly try to fluster, undermine, and even trick the witness into saying something inconsistent with their story.  At the University of Cincinnati, the respondent's cross examination of the complainant is mediated by the panel, which accepts the respondent's proposed questions and filters out ones that are redundant or off topic. It also permits either party to attend the hearing remotely via Skype instead of in person. The court did not suggest that these methods of mitigating the potential for cross-examination to traumatize the complainant are unconstitutional. But it does insist that some opportunity for cross-examination take place before the hearing panel, in cases that turn on credibility.

Decision: Doe v. University of Cincinnati, 2017 WL 4228791 (Sept. 25, 2017).

Department of Education Withdraws 2011 Dear Colleague Letter

Today the Department of Education announced its withdrawal of the 2011 Dear Colleague Letter and related 2014 "Q&A" guidance. This decision was not a surprise as it was foreshadowed by Secretary DeVos's speech at George Mason University earlier this month. The letter announcing the withdrawal reiterates DeVos's earlier-stated intentions to conduct a notice and comment rulemaking process (though it does not specify a timeframe for this).

The letter also seeks to clarify what kind of sexual misconduct response it expects education institutions to engage in in the meantime. First, the 2011 Dear Colleague Letter's policy antecedents remain in effect; these are the 2001 Revised Sexual Harassment Guidance and the 2006 Dear Colleague Letter endorsing the 2001 Guidance.  Secondly, the regulations that the prior administration promulgated in 2014 to enforce the Clery Act are unaffected by the Dear Colleague Letter's withdrawal. Finally, the Department issued a new Q&A that will supplement the earlier guidance as a source of answers to questions about schools' obligations under Title IX to address sexual misconduct. This reiterates some of the key points under the antecedent guidance, as well as the Clery regs. Interestingly, it also adds some new requirements and retains some aspects of the withdrawn 2011 Dear Colleague Letter.  Here is my impression of the key features of today's change:

• The Q&A continues to endorse the school's obligation to respond whenever it "knows or reasonably should have known" that an incident of sexual misconduct occurred, regardless of whether someone is filing a complaint.  To be actionable, the incident(s) must constitute "severe, persistent or pervasive" and operate to deny or limit a student's ability to participate in school programs. This is consistent with the 2001 Guidance. 

• Like the 2001 Guidance, the new Q&A says that "it may be appropriate" for schools to take interim measures -- services and accommodations like counseling, schedule or housing modifications, extensions, etc. that institutions make to students while an investigation and grievance proceeding. The new Q&A adds, however, that interim measures may be appropriate for the responding party as well as the reporting party.

• The requirement that schools adopt and publish a grievance procedures stems from the 2001 Guidance and is codified by the Clery regs. This requirement, as well as various characteristics that are also codified, is retained in the Q&A.  

• That said, the new Q&A abandons the specific 60 day time frame that the 2011 Dear Colleague Letter offered as an interpretation of the existing requirement that the procedures ensure "prompt" investigation.

• The new Q&A also abandons the 2011 Dear Colleague Letter's requirement that institutions use the preponderance standard of evidence as part of the existing requirement that procedures be "equitable." The Q&A says that institutions may use either the preponderance standard OR the clear and convincing standard. It's arguable that this is a new approach for the Department, since even prior to the 2011 Dear Colleague Letter, the agency required institutions to use the preponderance on a case-by-case basis in enforcement actions. 

• On the other hand, the new Q&A retains the requirement that institutions provide symmetrical procedural rights to complainants and respondents (with one exception noted in the next bullet point). This was a major aspect of the 2011 Dear Colleague Letter and it put an end to the practice of holding one-sided hearings where the complainant had no role or even right to be there. Some of the symmetry principal that originated in the 2011 Dear Colleague Letter was codified in the Clery regs, including the right to receive notice of the outcome and the right to have present at the hearing an advisor of the party's choice. The Q&A does not repeal the aspects of the symmetry principle that are not so codified. 

• The exception to the point above is the right to appeal. Whereas the 2011 Dear Colleague Letter extended the "symmetry" requirement to the right to appeal, the new Q&A permits institutions who offer a right to appeal to either offer it to both parties OR to restrict it only to the respondent.  The Q&A attributes this (vaguely) to notions of due process.  

So this is the state of things until the Department promulgates new regulations. My guess is that if we had to guess about the content of the new regulations the agency will propose, the Q&A is a good indication.   

Bipartisan Congressional Group Urge DeVos to Retain Preponderance Standard

In the wake of Secretary of Education Betsy DeVos's announcement earlier this month that the Department of Education plans to reconsider its interpretation of institutional responsibilities under Title IX to address sexual misconduct, I thought it was notable that yesterday a group of ten Members of Congress wrote to DeVos to urge her to retain that requirement that institution decide sexual misconduct cases using a preponderance of evidence standard.  Notably, the signatories consisted of five Republicans and five Democrats, as well as a mix of men and women. The letter argued that the preponderance standard (which asks whether there is more evidence in support of the charge against respondent than against) balances the rights of students who have or will face sexual violence against the the rights of students who are accused of sexual misconduct, over which the signatories share DeVos's concern. Preponderance is the most equitable standard, the letter maintains, because it recognizes that both complainants and respondents have a stake in the outcome. They point out that it has been favored in the past by Democratic and Republican administrations, both of which used their enforcement authority to require it of institutions long before the agency's 2011 Dear Colleague Letter publicized that aspect of the Department's interpretation of Title IX. In stark contrast to DeVos's painting of the DCL as having created a failed system, the letter points out that colleges and universities have "made great strides" to address sexual violence, thanks to the DCL and student advocates. They hope that the Secretary's upcoming process for revising it "build upon" rather than undermine this "hard won progress."

The letters signatories are:

Annie Kuster (D-NH)
Patrick Meehan (R-PA)
Jackie Speier (D-CA)
Susan Davis* (D-CA)
Ted Poe (R-TX)
Pramila Jayapal (D-WA)
Tom Reed (R-NY)
Debbie Dingell (D-MI)
Carlos Curbelo (R-FL)
Lynn Jenkins (R-KS)

* I note that Representative Davis is also a member of the House Committee on Education and the Workforce, which has authority over the Department of Education's budget. This does not give her a ton of leverage, since she is just one member of the minority party, and since DeVos would probably be fine with most any cut to the agency's budget.  But if more members of that committee are persuaded to take a stand against rolling back Title IX, and they can find a way to use finances as leverage over the Department, that is one potential way for Congress to serve as a check on the executive branch on this issue. The other option Congress has, of course, is to codify the preponderance standard, or any other aspect of Title IX that exists as regulation or subregulatory guidance, into the statute itself.

What has been happening at Auburn?

Well whatever has been happening, it has been happening for a few years. But news of problems within Auburn University's softball program only emerged a couple of weeks ago when a former player filed a Title IX complaint alleging that an associate coach was sexually harassing and having sexual relationships with players. But the investigation into associate head coach Corey Myers's actions by the school began in a year ago spurred by anonymous ethics complaints.

Yet Myers did not leave the program until March (he took a 2-week leave of absence when the investigation began*) when he resigned citing the need to be with his family. He is the son of head coach Clint Myers who, not coincidentally, announced his retirement right before news broke of the Title IX complaint and who also said it was due to the desire to spend time with his wife, children, and grandchildren. The elder Myers is a highly regarded figure in intercollegiate softball having coached the very successful (in terms of wins) Arizona State Sun Devils before going to Auburn in 2014. He has also worked with USA Softball.

What has been published about the harassment and conduct of the younger Myers and how it was handled by Auburn suggests a cover up. The timing of the elder Myers's retirement announcement supports that hypothesis. Also, the athletics director said in late April 2017 that he had no knowledge of an investigation. And when Clint Myers told the press in early April that he would welcome his son back to the program and a reporter asked about a Title IX investigation he seemed offended that such a thing was even brought up.

The player who filed the Title IX complaint (which included allegations of both the abuse and the cover up) was a redshirt player who was cut following the end of the 2017 season. This scenario often leads to a sour grapes defense. However, the complainant's story has been corroborated by others you played under Myers and Myers. One player, who transferred to another school, showed the media suggestive text messages sent by the younger Myers to another Auburn player (she took pics of the texts). When these texts were brought to the administration as evidence, a member of the athletic department told those seeking redress that they could be arrested for sharing those messages. So it seems the athletics department was engaging in intimidation and cover up based on this version of events. Other former players have also come forward with stories of illegal behavior and attempts to get the school to address it. 

It is clear that the situation created tension within the team. The player who was receiving the texts did not implicate Corey Meyers during the Fall 2016 investigation. This caused division among the team even into spring 2017. An incident involving an Auburn player in an altercation with University of Florida head coach Tim Walton during the post-game high-five line now has some context. She and other members did not want to ride the bus with the uncooperative player. In other words, this situation and the way the staff and the administration dealt with it caused problems within the team. To an outsider it looked like a fairly successful season with a loss to a good team.

No word on whether or when OCR will investigate.



* according to one player, team members were encouraged to go to the administration during this time and advocated for Corey Myers's return.

DeVos Announces Notice and Comment Process for Addressing Campus Sexual Misconduct

Secretary of Education Betsy DeVos announced today that the Department of Education will commence a notice and comment process to examine the Title IX compliance standards that govern how colleges and universities handle matters of campus sexual assault. Insisting that "the era of rule by letter is over," DeVos refrained from announcing a new standard or rule today, but committed the agency to soliciting input from the public and interest groups.

In my opinion the Secretary's remarks conveyed sincere concern for students who have experienced sexual misconduct, whom she referred to as "survivors," underscoring the gravity of the problem she was discussing.  Additionally, she expressed concern for the rights of students who are accused of sexual misconduct and cited examples of cases where their procedural rights have been ignored. Her concern for both types of students was heartfelt, neutral, and difficult to disagree with.

What will surely be more controversial is how the agency will fix "the system of the prior administration," which she said, "fails too many students." Though she did not foreshadow the specifics of any new policy, her remarks give the impression that a variety of changes are on the table. For instance, the agency appears to be considering a narrower definition of sexual misconduct, as DeVos spoke with concern about instances where universities investigated trivial or accidental comments.  I also detected a tone of disdain when she spoke of the mandatory preponderance standard of evidence, which suggests that open for reconsideration as well.  I was most concerned, however, about her criticism of university officials taking on an adjudicatory role.  I hope this doesn't mean that she is considering withdrawing or limiting university's authority to adjudicate sexual misconduct like they do other disciplinary matters.  But I note that as an example of the kind of public input the agency was looking for, DeVos noted and described a law enforcement model developed by criminal prosecutors.  Could this mean she is contemplating allowing the criminal justice system to preempt university enforcement authority?  We will have to see what specifics emerge in the conversation to come.

From Texas to Canada: A Baylor Update

UPDATE: The Hamilton Tiger Cats rescinded their offer to  Briles. 

Meaning to post an update on what has been happening at Baylor in recent weeks, I was finally "inspired" by the news that former head football coach Art Briles has landed another coaching job. And all I have to say is Oh, Canada*, because Briles is now coaching in the Canadian Football League.

His title is Assistant Head Coach Offence for the Hamilton Tiger Cats.

First, I am not surprised he got another job. I am surprised it is in Canada. I thought someone in the US would hire him--probably an NFL franchise. Because what does it say about your reputation as it relates to sexual assault when no one in the NFL wants you? What remains to be seen is if this is the start of his redemption tour. Will he return to football in the US in a few years? Will he eventually be let back into intercollegiate football's ranks? Briles himself said (through his attorney) that he will be back coaching college football next year.

It is also curious that he took the CFL job given that--again according to his attorney--was offered positions by college teams. Why leave the country and coach in an lesser known league?

In news that was a little less prominent, another former Bear found a new home. Trayvon Blanchard is now playing at Texas A&M University-Commerce. He had played three seasons at Baylor before being suspended for his alleged involvement in a sexual assault. The investigation into that incident is ongoing according to his attorney. TAMU-Commerce accepted Blanchard, who will be on the field this season, even after his most recent arrest (last month) for misdemeanor assault/family violence. The university does not appear to be overly concerned with these things.Their statement:

"We welcome Travon Blanchard to our Lion Athletics family. As with any transfer, we thoroughly investigate circumstances and communicate with a wide net. We are confident that Travon walking on to our program this season is a positive step for both him and our program."

As a reminder, if TAMU-Commerce was an SEC school, this transfer would not have occurred. 

Back to what Briles left behind. In July, the university settled a lawsuit (one of six) it could not get dismissed. Since then...

It was announced this week that Baylor's Chief Operating Officer will be stepping down in the spring (at the end of the academic year). Reagan Ramsower will not be going far, however; he will move into a  position as a full professor in Baylor business school. This was the same move the university originally tried with former president Kenneth Starr. This time it may work because although Ramsower has been heavily critiqued for how he has handled the sexual assault scandal (as COO he is in charge of the Title IX Office, campus safety, and human resources), his name is less well-known. Still, being able to ride out a scandal like this and being granted a tenured position at the same school...

The beginning of Baylor's academic year also brought an additional lawsuit, filed by a Jane Doe, who is alleging she was sexually assaulted last spring (April) and that the university responded with indifference--and beyond. The allegations in the lawsuit--if found to be true--show that the school has not taken steps to improve its response to campus sexual assault and that the way it approaches victims remains hostile. Some "highlights": during the investigation the victim was asked what she was wearing and how much alcohol she had consumed; the investigation found that the assailant lied about sexual activity occurring but nonetheless found him not responsible because it was reasonable that he believed he has consent even though the victim was in and out of consciousness. Doe wanted to appeal the result and attempted to ask the Title IX office questions to which they did not respond before the deadline for filing an appeal had passed at which point they refused, according to the lawsuit, to extend the deadline. In short, as Baylor talks about how it is implementing the 105 recommendations that came from the Pepper Hamilton report (the external investigation the university commissioned), it is not actually doing anything on the (proverbial) ground.

Another setback for Baylor as it continues to contend with multiple lawsuits and a dozen plaintiffs came a few weeks ago when a judge ruled that plaintiffs' lawyers should have access to the materials (including emails and text messages) that Pepper Hamilton reviewed during its external investigation. Bayloe tried to contend that that information was privileged but the judge said the university waived privilege when it released a summary of the report's findings as well the 105 recommendations.

Finally, the same week that ruling went against Baylor, the school settled another lawsuit. Jasmin Hernandez, who was the first to file a lawsuit, engaged in a confidential settlement with her former university, which included dropping her case against Briles, who was named in the lawsuit along with his former boss, ex-AD Ian McCaw. Hernandez's story drew considerable attention. In addition to going public with her identity and story, her attacker, former football player Tevin Elliott, was found guilty of raping Hernandez in 2014 after the university failed to discipline him for the assault in 2012.

 In addition to the remaining lawsuits from the original "set," Baylor has to contend with the newest very damning allegations. There is far too much shouting about how great Baylor is (hello, Kim Mulkey) while nothing appears to be changing.


* this is a joke; I am not holding the entire country accountable for hiring Art Briles. 

Jury Finds Insufficient Evidence of Sexual Orientation Discrimination By Pepperdine

On Friday a jury in California delivered its verdict in favor of Pepperdine University, citing insufficient evidence to support the plaintiffs' claim that that women's basketball coach discriminated against them when they were players on his team by singling their dating relationship out for scrutiny and prohibition. Pepperdine had argued that the coach was targeting their dating relationship for its effect on team chemistry, rather than the fact that the players were lesbians.

The jury apparently thought the evidence did not support the plaintiffs' version of the coach's motives, but the fact that the case even made it to a trial was notable in itself. That is because the plaintiffs sued under Title IX, which prohibits sex discrimination and does not expressly mention anything about discrimination on the basis of sexual orientation. But the court allowed the case to proceed by recognizing that sex and sexual orientation discrimination were conceptually entwined. Even though the plaintiffs did not win at trial, the fact that a court agreed that Title IX covers sexual orientation discrimination will likely help future plaintiffs challenge sexual orientation discrimination they may face in athletics and other aspects of education where Title IX applies.

I know that lots of coaches, mainly in women's sports, have concerns about the effect of teammates' dating relationships on team chemistry. Even though Pepperdine prevailed at trial in this case, the fact of Title IX's potential application to sexual orientation discrimination means there is still a legal reason for coaches to be careful about how they regulate team chemistry -- as well as ways they can do a better job than Pepperdine to potentially avoid this kind of litigation in the first place.  For one thing, coaches that are concerned about team chemistry should address all kinds of relationships that could cause problems besides players in same-sex relationships with each other.  This could include players dating student managers and trainers, whether same- or opposite-sex, teammates on different-sex teams that practice and travel together, and close friendships that have the potential to be clique-ish and divisive. Secondly, coaches should be clear that they are regulating behavior during time that is relevant to the team (practice, competition, travel, team meetings and events), not the relationships per se. If a coach is worried that dating players will seclude themselves from the rest of the team, or bring drama and division in the event of breakup, then that is what the coach should regulate, not the relationship itself. Moreover, it should be clear that these conduct expectations apply when the players are on "team time."   Here is a good example of these principles in a model policy posted by NCLR.

Gender policing in youth sports

In early June, the story of Mili Hernandez, an 8-year old soccer player from Nebraska, made national headlines. her team, playing in a youth tournament, was disqualified right as they were about to play in the finals because organizers thought Mili was a boy. Rather an anonymous person told officials that a boy was playing on a girls' team. And the team had to go home. {I have a breakdown of this situation below.}

There was outrage and support from current and former professional soccer players. It was not a Title IX issue because it was a youth sports league run independently from interscholastic sports governance. So, though outraged it did not make it onto the blog. But now another story of questioning gender in youth soccer has arisen, and it seems like a good time to bring Title IX into the discussion.

A girls' club soccer team in Madison, Wisconsin has several short-haired players (some of whom model their style on favorite players like Abby Wambach and Megan Rapinoe) who experience what Hernandez did but on a regular basis. They have not been disqualified from games or tourneys but other teams ask questions of their parents, coaches, officials, and of them. They try to "catch" the girls by asking them their names. The team is accused of cheating. This persists even though the club system in which the team plays requires birth certificates from each child before she can be rostered on a team. The certificates are used to check for age and for sex. Cheating, in other words, would require forging birth certificates.

In some ways it is very simple. Some people have short hair and some people have long hair. And some people style their hair after people they want to emulate (remember the Rachel?). And kids play soccer.

The thing about gender is that everyone knows what it "should" look like--even if one cannot or chooses not to conform to the norms or expectations. This means that if a girls' team was to engage in cheating by including boys on the roster, the boys would be feminized in some way so as to avoid getting caught.

I can't believe I had to write that sentence. I do not want to live in a world where people are convinced that short-haired female soccer players are not boys because boys trying to pretend they are girls would know how to look like girls. That is the logic of the deeply gendered culture in which we live.

But there must be something else going on if people cannot stop and use that logic. And that is why gender is complicated. Because it is imbued with power. It is about access. It is about boundaries. In sports, those boundaries remain very tightly monitored.

What was interesting about the Madison situation is that the coach was initially skeptical about what her players' parents were saying about how the team was treated. This is likely because the team is based in Madison--a liberal college town. But one, a town that is sports obsessed and two, is in a a conservative state. In other words, how a region or town interprets or polices gender norms differs. For example, a look at the map at TransAthlete shows state interscholastic associations' gender identity policies.

The policy in Nebraska, where Hernandez plays, is the same as the old IOC policy. It requires gender reassignment surgery (we are talking about children remember) and a waiting period after the start of hormone treatment. The policy in Wisconsin is that each case is assessed as it arises. These policies reflect the cultural beliefs and can be used to predict how, for example, people might respond to short-haired soccer players on girls' teams.

Again, the interscholastic associations make their own policies, club teams and leagues make their own policies and Title IX has nothing to do with them. But it can influence thinking. Unfortunately the current administration's application of the law makes policies like the one in Nebraska--which is now more regressive than the IOC's--look more reasonable. It tightens the boundaries and it impedes logic.

Eighth Circuit Concludes that College is Not Liable for "Single Incident" of Sexual Assault

Recently, the Eight Circuit affirmed the dismissal of claims for institutional liability arising from a single incident of sexual assault. The plaintiff, a high school student, visited Culver-Stockton College as a potential recruit of the women's soccer program. While there, she attended a party at a campus fraternity. She alleges that she was served alcohol, and then sexually and physically assaulted by a fraternity brother while she was intoxicated. She reported the incident to campus authorities, but they did not engage in any kind of disciplinary response against the perpetrator.  A lower court dismissed the plaintiff's lawsuit against the college, a decision  that the Eighth Circuit recently affirmed on appeal.

Alarmingly, the Eight Circuit concluded that the reason the college was not liable for its failure to investigate and discipline the perpetrator was that the plaintiff alleged "only a single incident of sexual assault." This is  terrible mistake, and based on a strained reading of the Supreme Court's decision in Davis, in which the Court literally stated that harassment, to be actionable, had to be "severe, pervasive, and objectively offensive."  However, despite the missing "or" it is clear in the context of the decision overall, and especially in the context of the sexual harassment doctrine overall, that the Court did not mean to preclude liability based on a single-incident of misconduct that, like most forms of sexual assault, is properly considered "severe."

The Eighth Circuit opinion quotes the following sentence from the Supreme Court's decision in Davis as support for its conclusion:

"Although, in theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have such an effect, we think it unlikely that Congress would have thought such behavior sufficient to rise to this level in light of the inevitability of student misconduct and the amount of litigation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harassment."

But the context of this sentence is important to understanding that the Court was not requiring multiple incidents of rape as a precursor to institutional liability.  It comes in the middle of the section of the opinion where the majority is refuting the dissent's concern that the opinion makes schools liable for things like teasing and name-calling. That is the "peer harassment" the Court means when it says "such behavior" does not rise to requisite level of severity to create the potential for institutional liability based on a single incident. Read in its proper context, this sentence does not require that more severe conduct such as sexual assault* occur multiple times in order to create the possibility of institutional liability.  Other lower courts have had no problem interpreting the Davis decision to mean exactly that. Some have said outright that a single incident of rape is sufficiently severe, and countless others have inferred it by concluding that an institution is potentially liable in cases involving a single incident of sexual assault or rape.

I actually think that the court could have provided, or at least entertained, a more sensible reason to support the same conclusion that the college is not liable, based on the fact that the plaintiff was not a student of the college. For liability to exist under Title IX in cases of peer harassment, it must be the case that the institution's indifference has the effect of depriving or impairing the plaintiff's educational opportunity provided by the institution in question. If this case had been about the college's pre-assault indifference (i.e., if the plaintiff had alleged that some prior incident, such as an incident involving the same fraternity, the same perpetrator, or other prospective student-athletes as victims, put the institution on notice of a substantial risk of sexual assault like the plaintiff's) then the fact that the plaintiff was sexually assaulted while participating in a recruitment program provided by the college would, I think, qualify.  But this is not a case about an institution's pre-assault indifference, it is only about the damages to the plaintiff that the college caused to the plaintiff by failing to investigate the incident after it occurred. I have no doubt that this inaction was distressing to the plaintiff, but since she was not a student at the college and was no longer participating in its recruiting program for prospective student-athletes, it is difficult to see how this harm interfered with her ability to participate in the educational opportunities provided to her by the college. (To be clear, however, this analysis only pertains to institutional liability for money damages. OCR has broader enforcement and can properly interpret Title IX to require institutions to address the harm to non-students in these circumstances.)

Even though there is a basis for reaching the same conclusion, I hope that an en banc panel reconsiders this opinion and corrects the erroneous "single incident" analysis -- before it creates confusion in the lower courts.

Decision: K.T. v. Culver-Stockton College, No. 16-3617 (8th Cir. 2017).

*Granted, depending on how broadly the institution defines "sexual assault," it is possible that not everything in this category should be considered "severe." But if that's the case here, the proper disposition is for a jury to decide, not for the case to be dismissed prior to such fact-finding.

Inequities in scheduling and facilities

Last week's episode of Only a Game included a story on inequities in scheduling and facilities on the three stories you should know segment of the show.

It was Boston Globe writer Shira Springer's story and was born out of Victoria Azarenka's complaints during the first week of (the recently concluded) Wimbledon that women were not getting the good courts and the good times. Nothing much came of Azarenka's public calling out of the All England Club--shocking. But Springer did a good job of turning the moment into a conversation about how female athletes are treated.

My initial response was something in the realm of "no kidding" and "is this really what we should be talking about?". I mean the Women's US Open was held at one of 45's golf courses last weekend because the USGA would not move the event way back in October when news of his sexual assaults was revealed to the world. And then USGA officials would not/could not publicly answer a question about the organization's position on sexual assault!

But then I remembered that I am a feminist scholar of sports and that ranking all the ills is not really in keeping with my philosophy and desired intentions. I also opened up my email to find a Google alert about facilities inequities in Oregon (high school softball/baseball fields). Also, inequities in scheduling and facilities do not exist in a vacuum; they are an indicator of the culture of the sport's governing body.

Springer's segment focuses on professional and Olympic female athletes and it is an important conversation given that, as she herself notes, much of the conversation about inequality at this level has been directed at pay inequities. And as much as I appreciate Springer's segment and the potential attention it will generate, this is not new. Just two years ago, we were watching a premier international soccer tournament played on artificial turf. The 2015 Women's World Cup participants and their supporters protested the

Host Bill Curtis made a side comment about Boston University when Springer mentioned the very inequitable scheduling of women's hockey in Sochi in the last Olympics. He noted that BU has the same issue. It was almost a under-his-breath comment but it's important to note. BU established a women's hockey team in 2005. The team has been successful fairly quickly. They play Walter Brown Arena, built in 1971, which seats approximately 3,800 fans. The men play in Agganis Arena, which opened in 2005 (such a coincidence!), and seats about 6,100 fans. I have not been to either arena so I cannot comment on the level of upkeep or general comfort and accommodations. But on its face, this does not look like a good situation. It reminds me of the montage in Love and Basketball that compares the experiences at USC of Q and Monica.

Because Walter Brown is a facility that the women do not have to share unlike most of their DI counterparts, maybe they think this is a good deal. But maybe they look at the treatment that men receive and think that having their own arena is not nearly enough. The point is that the women of US National Team are used to be being put in substandard arenas and in non-primetime slots. So even if they know it is unfair and even if they hate it, it was likely not a surprise when they encountered the same situation in Sochi.

Female athletes who come up through the American intercollegiate system are accustomed to differential treatment. Professionals like Victoria Azarenka who came up through a non-scholastic junior sports system do not have the same experience. This is not to say that athletes who come up in club systems around the world are treated equitably (in another sport movie reference: Bend It Like Beckham). I am sure almost every professional female athlete can share stories about gender inequality. But in a sport like tennis--or basically just tennis--where pay equity is less and less of an issue, players might be a little surprised that there are other gender issues to tackle.

And heading back to where Title IX is a factor: interscholastic and intercollegiate sports are still failing miserably in their obligations for equal treatment. We wrote an article about this five years ago. We could easily write another today with just examples from the past few years.Trickle down or trickle up change--it does not matter in what direction or who is doing the influencing, but remedies to these inequities will only come with changes to attitudes about women's sports and female athletes.

If you can't dismiss them, settle them

Baylor University has settled one of the six lawsuits it is facing over its handling of sexual assaults. This lawsuit had a single plaintiff, a former student who said she was drugged, kidnapped, and raped in February 2015 at an off-campus party at what is known as the rugby house. The lawsuit, in part, accused Baylor of not properly handling her reporting of the incident. It also revealed what is now undeniable--that Baylor has an extremely dangerous culture and that has not effectively addressed the climate.

After initial contact with the Title IX office, the plaintiff found out--from that office--that multiple other women had reported sexual assaults at the rugby house. They worked with her for several weeks and then nothing. There was no hearing. She left Baylor after a failed appeal over a poor grade--due to her trauma from the rape.

Baylor had moved to have the lawsuit dismissed in October.

Details of the settlement were not released. 

The school has settled with three other women who did not filed lawsuits. There are now five lawsuits pending against the university.

Recent happenings: Florida, Baylor, Michigan State

Amidst the ever-growing pile of evidence that civil rights laws and statutes will not be defended, inspected, upheld by this administration (suspect nominations, budget & staffing cuts, etc.), there was some good news this week. OCR is investigating the University of Florida's handling of a sexual assault accusation against football player Antonio Callaway. We discussed this case last year when Callaway faced a student disciplinary hearing because the hearing itself was unusual in that it was presided over by a football booster who is also a lawyer. UF had never brought in an outsider to preside over disciplinary hearings and that this person was overseeing a case involving a football player was deeply suspect. The accuser herself boycotted the hearing.  No one from UF will speak on the matter because the investigation is ongoing. The accuser--who filed the complaint--and her team have previously commented on the situation.

Baylor must have an abundance of shovels because they just keep digging themselves deeper and deeper. Most recently, a former regent (who was on the board at the time of many of the alleged incidents of rape) chastised the alcohol consumption habits of female undergrads at the school during  series of 2009 emails about alleged sexual misconduct on campus. The former regent, and district attorney, Neal Jones's emails are part of evidence in one of the six current lawsuits against the university. Because underage drinking violates Baylor's Christian-based standards, Jones implies--at best--that the issue should be moot. Except his language reveals significant misogynist blame: “Those perverted little tarts had better be thanking their lucky stars that my guns are all aimed at a worse group of insidious scoundrels than themselves for the time being.” The plaintiffs (there are 10) contend that these attitudes about women and drinking and sexual assault--which existed, as evidenced--at the highest levels of Baylor leadership, contributed to the culture of sexual violence and the lack of appropriate responses to the reports of sexual assault.

Last week Baylor asked for one of the lawsuits it is facing be dismissed. This lawsuit has a single plaintiff, a former volleyball player, who alleges she was drugged and gang raped in 2012 by up to eight football players. Baylor contends that her right to make these claims expired in spring 2015. They also protested the language of her lawsuit which they felt was inflammatory and they are trying to strike from the court record her contentions that Baylor promised sex with female hostesses to football recruits.

It does not seem likely the the move to dismiss will be granted, though Baylor has now attempted to get all six of the lawsuits it is facing dismissed. A district court judge said in March that Baylor sexual assault victims will have until 2018 to file lawsuits against the university.

Far north of Texas, Michigan State University has also been dealing allegations of sexual assault against football players. At this time, the situation at MSU does not appear to be as widespread as at Baylor and officials actually investigated the January assault. These assaults are starting to look eerily familiar: a woman raped by more than one athlete and the incident being recorded. The three MSU football players were dismissed from the team in February (after criminal charges were filed) and subsequently found guilty by the school of violating the sexual misconduct policy and expelled this past week. The lawyer for one of the accused criticized the university's investigation for not being thorough citing all the evidence currently entered as part of the criminal trial thus reinforcing the misconception that student hearings are similar to the criminal justice system. A hearing for the men is scheduled for September. In another departure from Baylor, MSU hired an outside firm to investigate the football program after the allegations became known.

Litigation Roundup: School Districts Lacking Notice

In several recent cases, courts rejected claims that school districts were liable for sexual misconduct by employees or students due to lack of notice.  Here are case summaries:

The Fifth Circuit Court of Appeals reversed a district court's judgment in favor of a plaintiff who sued the South San Antonio Independent School District after having been molested by the vice principal, later principal, of the elementary school he attended.  After the jury awarded the plaintiff $4.5 million, the school district moved to dismiss the case as a matter of law and appealed an adverse ruling on this motion to the appellate court.  A school district is liable for sexual misconduct of its employees if someone with authority to take corrective action has notice of the misconduct and responds with deliberate indifference. In this case, the plaintiff argued that because the perpetrator was the vice principal  -- someone with authority to take corrective action -- then the notice requirement was satisfied.  However, the Fifth Circuit disagreed, concluding that the perpetrator's knowledge of his own misconduct does not qualify. The notice requirement is meant to limit school district liability to only those cases where those in authority ignore sexual misconduct that they know is going on, and one does not "ignore" one's own misconduct. Put another way, the court reasoned that implicit in the notice requirement is a requirement that the person to whom notice is given is a person who does not already know that the misconduct is going on.  Otherwise, there is potential automatic liability every time someone with authority is the perpetrator.
Decision: Salazar v. South San Antonio Indep. Sch. Dist., 2017 WL 2590511 (5th Cir. June 15, 2017).

The Eleventh Circuit Court of Appeals affirmed a lower court's decision to dismiss Title IX claims filed against Bibb County (Georgia) school district stemming from the rape of a female special education student, the plaintiff in the case. The facts are terrible: A male student walked into the plaintiff's classroom and told the teacher that another teacher wanted to see the plaintiff. The teacher let her go with him, and he brought her to the bathroom where she was gang-raped by seven male students, none of whom had ever been reported for any kind of sexual misconduct.  For the district to be liable for the rape, however, there must be some prior misconduct that put school officials on notice that the plaintiff was at risk for what happened.  Considering the appeal, the Eleventh Circuit affirmed that it is not necessary for a plaintiff to show that she herself had reported prior incidents, nor that the perpetrators themselves had been the subject of such reports.  Still, however, there must be a reasonable enough similarity between the prior incidents and the plaintiff's rape to put school officials on notice, and the appellate court agreed with the district court that such similarity was lacking here.  There had been prior incidents of sexual assault in the high school; one of which did not involve students in the special education program and so could not serve as notice that students participating in that program were at an elevated risk.  The other did involve special education students, but the circumstances were different as the students involved had been left alone unsupervised in a classroom, whereas here, the perpetrators used deceit to extract the victim from her classroom.  Therefore, there was nothing on which to base a claim that the school district should have acted to prevent the rape that occurred here.
Decision: Jane Doe v. Bibb County Sch. Dist., 2017 WL 2240825 (11th Cir. May 22, 2017).

The parents of an eighth grader can not pursue their lawsuit against the Independent School District of Delaware County (Oklahoma) that stems from a romantic and sexual relationship that occurred between their ninth-grade daughter and her basketball coach, an employee of the district. The federal district court in Oklahoma granted summary judgment to the district on the parents' Title IX claim because their were no allegations that the school district was indifferent to the coach's sexual misconduct that was known to appropriate school officials. Once the principal learned of a rumor that the coach and the student had been locked in a room together, he and the superintendent investigated and quickly got corroboration by the student. The coach was suspended immediately and eventually terminated. The parents argued that school officials actually had notice that this coach posed a threat of sexual misconduct to his players based on prior complaints that a couple of parents had made against the coach.  However, these complaints, which were investigated, did not involve conduct that was predictive of the sexual misconduct that occurred in this case. There had been a complaint that the coach sometimes texted individual players, and sometimes talked about butts in practice. But the investigation revealed that the texts and the comments were related to basketball and reasonably handled by an order to the coach not to text individual players any more. In the absence of deliberate indifference to sexual misconduct that was known or foreseeable to school officials the school district was not liable for damages arising from the the coach's sexual misconduct with the plaintiffs' daughter.
Decision: Callihan v. Indep. Sch. Dist. No. 1., 2017 WL 2783990 (N.D. Okla. June 27, 2017).

Commission on Civil Rights to Investigate Federal Civil Rights Enforcement

The U.S. Commission on Civil Rights recently launched a "comprehensive two-year assessment of federal civil rights enforcement" that will examine "the degree to which current budgets and staffing levels allow civil rights offices to perform their statutory and regulatory functions, the management practices in place in the offices and whether these practices are sufficient to meet the volume of civil rights issues within the offices’ jurisdiction, and the efficacy of recent resolution efforts from the offices."

The Commission expressly identified specific concerns across seven different agencies as motivating factors for this investigation.  Among them was the Department of Education, which was called out because:

The proposed budget calls for reducing staffing by 7 percent (losing 46 full time equivalent positions) at the department’s Office for Civil Rights, which investigates sex, race, disability, and age based civil rights complaints.4 The proposed budget itself reflects that the cutbacks would result in an untenable caseload of 42 cases per staff member. These proposed cuts are particularly troubling in light of Education Secretary Betsy DeVos’ repeated refusal in Congressional testimony and other public statements to commit that the Department would enforce federal civil rights laws.

The Commission on Civil Rights is an independent agency, meaning that its eight Commissioners are appointed to serve six-year terms and (unlike the heads of agencies that report to cabinet members) cannot be fired by the president over political disagreements. It is also a bipartisan commission, set up to ensure that is not dominated by members of one political party and includes a mix of members appointed by both the President and congressional leadership. The Commission is currently chaired by Catherine Lhamon, who formerly served as the Assistant Secretary of Education for Civil Rights and was appointed by President Obama in the last month of his term. The Commission does not have enforcement authority, but rather, serves an advisory function by issuing reports about civil rights enforcement to the President and Congress. Therefore, its present investigation cannot directly change the civil rights practices in the Department of Education or other federal agencies. However, by exposing shortfalls in civil rights enforcement, the investigation could generate political pressure on the President and Congress to make changes, as well as provide information for voters to consider when the current President and members of Congress run for reelection.

OCR Scales Back Investigation Process

A new internal memorandum from the Acting Assistant Secretary for Civil Rights Candice Jackson instructs OCR investigators in the regional offices that they should no longer automatically conduct systemic investigations in response to individual complaints.

Previously when OCR investigated institutions for violations of Title IX or other civil rights laws, it would request three years of data and files from the institution so that it could determine whether whatever allegation was being investigated was part of a widespread or broader compliance problem. For example, say a student filed a complaint with OCR alleging that the institution took too long to resolve her complaint of sexual assault. OCR would not only investigate that claim but other sexual misconduct complaints that the institution processed over the last three years.  The agency may then determine that "promptness" was an issue in several other students cases besides (or even instead of) the one that triggered the investigation. Going forward, however, OCR will not automatically do that extra digging into the institution's historical files.

That said, the memorandum provides OCR investigators with discretion to request comparative data from an institution when it is required by the legal analysis called for in the complaint.  In the Title IX context, an example of this would be when a student files a complaint with OCR against an institution alleging that the institution denied him procedural rights on a sexual misconduct hearing, because of his sex. In order to determine whether there is a pattern of treating respondents of one sex differently from respondents of another sex, it would be necessary for the investigators to request comparative data about how the institution handled other sexual misconduct cases.  (I made up this example, but based it off the hypothetical example in the memo about a racially discriminatory suspension).  The agency would also have to conduct a systemic investigation when it is investigating a complaint that takes a "class action approach" and alleges systemic violations.

Here are some of my thoughts about this change in OCR's approach:

• Agree or not, this kind of change about how the agency conducts investigations is a matter that is within the agency's discretion. 

• It the kind of change that is politically consistent with administration that takes a skeptical view of government regulation in general.  

• In my opinion, when OCR did examine three-years worth of data, the resulting findings gave a clearer picture of the institution's overall compliance approach. Though sometimes the picture was damning, it could also be somewhat exonerating -- such as if the agency says "we looked at three years worth of data and all we found was one case where the resolution was not prompt." I personally found that kind of context helpful to understanding the extent of compliance problems within institutions and in general.

• It is also worth keeping in mind that in the Title IX context, the agency's prior practice of conducting broad investigations did not expose institutions to risk of a greater penalty. Unlike some areas of law where an entity is fined per violation,OCR resolutions are always aimed at ensuring that violations do not continue going forward. 

• On the other hand, OCR's former approach was very time-consuming. Its practice of looking deeply into each complaint may have prevented it from being able to look into other complaints at all. 

• It is difficult to imagine how OCR would otherwise be able to process the hundreds of sexual misconduct related complaints (not to mention other civil rights complaints) that is has in its backlog, especially given that the President has proposed to drastically decrease the agency's funding rather than increase it. 

• On the bright side, implicit in the memo appears to be an affirmation that when a complaint does allege systemic violations, the agency will conduct an appropriately broad review, which I appreciate.