Monday, June 19, 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.

Thursday, June 15, 2017

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. 

Thursday, June 01, 2017

Insufficient Allegations of Bias Result in Dismissal of Title IX Claim Against University of Colorado

One of the most contentious legal issues in disciplined-student cases under Title IX is what level of detail the plaintiff needs to include in the complaint in order to avoid having the claim dismissed at the outset of litigation, prior to either discovery or trial. Many male students who have sued to overturn expulsion or suspension for sexual assault include a sort of reverse-discrimination argument; arguing that the institution violated Title IX because it was motivated to punish them because of their sex. Courts will dismiss any complaint t

at does not include enough detail to put the defendant on notice of what, exactly, they are being sued for; yet at the same time, because the law permits defendants to file motions to dismiss early in the litigation process, courts also try not to punish a plaintiff for not having the information they haven't yet had the opportunity to discover. In civil rights cases generally, it is challenging for courts to consistently draw this line, and Title IX claims in disciplined-student cases seem to be particularly challenging. Courts tend to agree on the language they use to describe the pleading standard ("minimally plausible inference" " no "conclusory allegations"), but not necessarily on what that standard means in practice.

In a recent district court decision, a federal judge in Colorado dismissed a disciplined-student's Title IX claim after concluding that his allegations of bias did not meet the pleading standard. Specifically, the plaintiff alleged that university officials involved in his disciplinary proceeding were biased against his sex because:
* the Title IX coordinator and the person who investigated his case were both women
* the investigator had a background in victim's advocacy
* an article in the Chronicle of Higher Education once attributed a statement to the investigator that used the word 'perpetrator' --as in, "the process is designed to expel or suspend perpetrators" which the plaintiff claimed was evidence of her bias that everyone accused of assault is guilty.
* the fact that the university was under investigation already by the Department of Education for mishandling sexual assault, which the plaintiff alleged created external pressure to rush to judgment in his case.
* a pattern that respondents in sexual assault cases tend to be male

None of these allegations created a minimally plausible inference of gender bias, ruled the court. The first three were rejected for what I suggest are non-controversial reasons. Bias can not be inferred from someone's sex or previous work experience.  Using the word "perpetrator" alongside "expelled" (which, the court noted, wasn't even a direct quote and could have been the reporter's word rather than the investigator's) in no way suggests that those who have not in fact perpetrated sexual assault should also be expelled.

The court's rejection of the last two allegations, however, illustrates the division among federal courts.This court interpreted the plaintiff's "external pressure to rush to judgment" argument as, at most, creating an inference of bias against those accused of sexual assault, which is different from bias against men. Even though men are more likely to be respondents, the court reasoned, it is not the university's decision to place them in that category, it is students themselves who do so. It is plausible that a university would have been just as motivated to disciplined a student for sexual assault if a female student had been the one accused. Yet, other courts have been willing to except the "external pressure" allegation as well as other allegations that equate bias against those accused of sexual assault with bias against men.

This decision contributes to what appears to be an emerging patchwork of districts and circuits that are more or less favorable to Title IX claims in disciplined-student cases.

Decision: Doe v. University of Colorado-Boulder, 2017 WL 2311209 (D. Colo. May 26, 2017).

Wednesday, May 31, 2017

Appeals Court Rules in Favor of Transgender Student's Preliminary Right to Use the Bathroom

Yesterday the Seventh Circuit Court of Appeals affirmed that transgender high school student Ash Whitaker may not be barred from the boys' bathroom while he litigates his case against the school district.  Whitaker, who identifies as male, sued the Kenosha Unified School District in Wisconsin after it restricted his access to the boys' restrooms because his natal sex is female. After Whitaker sued under Title IX and the U.S. Constitution's Equal Protection Clause, he sought a preliminary injunction that would allow him to use the correct bathroom while his case is being litigated; a lower court agreed and the school board's appeal of that decision produced yesterday's landmark ruling.

What made the Seventh Circuit's decision noteworthy is that it is the first time a federal appellate court has construed Title IX directly to cover discrimination against transgender students in the context of bathrooms. Another federal appellate court, the Fourth Circuit, reached a similar conclusion in Gavin Grimm's case, but only after extending judicial deference to the Department of Education's former interpretation of Title IX's application to transgender students' bathroom usage. The Department of Education's subsequent withdrawal of that interpretation meant that future courts could not rely on it as the basis for their rulings, as the Fourth Circuit had done, but did not foreclose courts from reaching the same interpretation on its own -- which the Seventh Circuit did yesterday.

When deciding to grant a preliminary injunction, a court must decide among other factors, that the plaintiff is likely to win on the merits. The Seventh Circuit agreed that Whitaker would likely prevail on his argument that Title IX's ban on sex discrimination encompasses discrimination against transgender students. Even though an earlier decision from that court rejected the idea that sex discrimination laws covered transgender plaintiffs, the court acknowledged that subsequent Supreme Court caselaw interpreted the concept of sex discrimination more broadly to include discrimination based on gender stereotypes. And what is transgender discrimination, reasoned the court, than discrimination that targets an individual for presenting in a way that's different from what society expects based on the sex that person was assigned at birth.

Additionally, the court also found that Whitaker was likely to succeed on his Equal Protection claim.  Applying heightened scrutiny, the court recognized that the school would be unlikely to justify treating Whitaker differently from other students, who are permitted to use the bathroom that matches their gender identities. Though the school district claimed to be protecting students' privacy, the court could not see any evidence, at least at this preliminary stage of litigation, that anyone's privacy is infringed in bathrooms that have stalls. The court viewed the privacy "threat" from Whitaker no differently from any other student who may happen to be in the bathroom at the same time as another user. To the extent that Whitaker's different anatomy from other boys somehow makes privacy considerations different, the court noted that students with different anatomy use common bathrooms all the time, there being no effort by the school district, for example, to segregate pre-pubescent adolescents from those whose bodies are different and more mature.

What will happen next in this case? Theoretically, the school district can try to get the ruling overturned internally by the court, by seeking a rehearing in front of the full court.  But, the court's decision notes that Whitaker is a high school senior and it is already May.  Therefore, a decision by the full court would be unlikely to interrupt the preliminary relief he has obtained.  More likely, therefore, the case will continue to litigate the merits. Whitaker has also sued for compensatory damages, so that aspect of the case will not be mooted by the fact of his graduation from high school.

Monday, May 29, 2017

Study Examines Faculty-on-Student Harassment

Professors Nancy Chi Cantalupo and William Kidder have posted a forthcoming study about an aspect of campus sexual misconduct that warrants more public discussion: the sexual harassment of students by faculty members.  They studied media reports as well as lawsuits and administrative complaints, amassing a data set of over three hundred cases. As they put it in the abstract,
Two key findings emerged from the data. First, contrary to popular assumptions, faculty sexual harassers are not engaged primarily in verbal behavior. Rather, most of the cases reviewed for this study involved faculty alleged to have engaged in unwelcome physical contact ranging from groping to sexual assault to domestic abuse-like behaviors. Second, more than half (53%) of cases involved professors allegedly engaged in serial sexual harassment. Thus, this study adds to our understanding of sexual harassment in the university setting and informs a number of related policy and legal questions including academic freedom, prevention, sanctions, and the so-called “pass the harasser” phenomenon of serial sexual harassers relocating to new university positions.
Here is a link to the study, which will be published in the Utah Law Review.

Friday, May 26, 2017

New University of Oregon Alters Faculty Mandatory Reporting Status

The Chronicle of Higher Education reported today about the University of Oregon's notable decision to amend the responsibilities of faculty member who learn about sexual misconduct in the university's jurisdiction. Currently, faculty members like most university employees at Oregon and elsewhere are required to report to the Title IX Coordinator when a student discloses (or they otherwise learn) that he or she has been sexually assaulted. The trend toward assigning faculty members responsibility as mandatory reporters resulted from the Department of Education's policy statements clarifying universities' obligations under Title IX to respond appropriately to Title IX. Universities had in the past defended some of their failures to respond to instances of sexual assault by claiming that appropriate officials were not aware of what had occurred. So to minimize the possibility that communication gaps could undermine universities' prompt and equitable response, it made statements broadly defining mandatory reporters.  In particular, the Department's 2014 Q&A document requires universities to mandate reporting from anyone who has the "authority to take action to redress sexual violence," or anyone who a student could "reasonably believe" has such authority. Universities have generally interpreted this requirement broadly to include faculty.

But many have criticized the mandating of faculty members' reporting as undermining its intended objective of helping to protect sexual assault victims. Some believe that students expect faculty members to honor requests for confidentiality and feel betrayed when a faculty member is not able to do so because of policies that require reporting. It is possible that the fear of such betrayal deters victims from reporting. On the other hand, the fear that the university will not respond is also believed to deter victims from reporting. So universities must address this issue with care.

The University of Oregon believes its new approach, will takes effect this fall, will do a better job encouraging students to disclose without undermining the communication required to initiate an institutional response. Faculty members will neither be mandatory reporters nor fully exempt from reporting, but will have the ability to use discretion to decide the reporting question. As the Chronicle summarized, "If a student says she was raped but isn’t ready to a report it, her professor can generally honor that request." But the faculty member must also provide the student with information about reporting, as well as other resources, and they must even consult a campus health counselor to make sure they have done everything they can to help the student.

Even with those other responsibilities in place, what still worries me about this policy is that when information is not channeled to a centralized office, fewer people are in a position to notice the kinds of patterns that could reveal a genuine threat. What if three different students confidentially report to three different professors that they have been sexually assaulted by the same student? If the reporting students do not know about each other, then neither will the professors. The professors will therefore underestimate the risk of not reporting and decide to honor the student's request for confidence. This possible downside of Oregon's new policy is only worth it, in my opinion, if it truly serves to increase reporting overall. I wonder -- and hope -- there is some way to measure the impact of this policy change in order to help accurately weigh the tradeoffs involved.

Friday, May 19, 2017

Iowa settles for $6.5 million

The University of Iowa will reportedly pay $6.5 million to avoid further litigation in the discrimination lawsuits filed by former associate athletic director Jane Meyer and former field hockey coach Tracey Griesbaum.  Griesbaum's lawsuit, which had been scheduled for trial next month, alleged that she was wrongfully terminated and that the athletic director had a pattern of firing female coaches. Meyer, Griesbaum's partner, successfully convinced a jury earlier this month that she was fired in retaliation for complaining about that and other examples of sex discrimination within the department. The jury had awarded Meyer $1.45 million, but this amount was subject to increase if the court decided to award punitive damages. Under the settlement, Meyer will instead receive $2.33 million, Griesbaum $1.49 million, and their attorneys, $2.68 million.

As the settlement only affects litigation, it does not affect the ongoing investigation by the Department of Education into claims that the university violated the Title IX rights of Griesbaum's athletes when it fired their coach.

Monday, May 15, 2017

Iowa Verdict in Context

Earlier this month, former athletic administrator Jane Meyer won her case and a sizeable $1.43 million jury award against the University of Iowa. I was traveling out of the country when it happened and could not blog about it until now, but my delay in posting in no way detracts from what big news I think this is. Meyer sued the university for retaliation in violation of Title IX when she was transferred outside the department the day after she submitted a memo to the athletic director describing the sex discrimination she had experienced and witnessed within the department. Some of her grievances had to do with the athletic director's decision to reassign some of Meyer's responsibilities to a newly-created deputy AD, a position filled by a male who was paid $70,000 more than Meyer. Meyer also objected to the firing of female head coaches, including her own partner Tracey Griesbaum who lost her position at the helm of the university's field hockey team even though an internal investigation cleared her of the complaints of bullying and harassment for which she had been accused. (Griesbaum's own lawsuit against the university is still pending.)

The jury agreed that the university violated Meyer's civil rights and awarded her $374,000 for back pay, $444,000 for past emotional distress, and $612,000 for future emotional distress. She is reportedly seeking an additional $2 million in reimbursement for legal fees and in punitive damages which may be allowable based on the jury's finding that the university's violations were "willful."
Meyer is not the first veteran female leader in college athletics to challenge sex discrimination and retaliation within her department. Just last fall a jury in California awarded over $3 million to Beth Burns after seeing her university's stated reason for firing her as pretext for retaliation. In another recent example, the University of North Florida paid over a million to a terminated female coach last year.  In the more distant past, we've blogged about jury awards and settlements for female coaches and administrators who endured retaliation and sex discrimination at Fresno State, Florida Gulf Coast University, Iowa State, and Cal-Berkeley, for example. Cases currently pending against Minnesota-Duluth and Griesbaum's case against Iowa could add to this list as well.

Together these cases remind us that even in this Title IX era, college athletics is a contentious workplace for female coaches and administrators. And when you consider that lawsuits are likely only filed when the plaintiff has nothing left to lose, it is easy to imagine that there are likely countless unknown other examples of discrimination that are almost as bad. When the media bemoans the dearth of female leadership in college athletics, these lawsuits hold some clues about many of the reasons why.

But the success of these plaintiffs also raise a critical question about how much litigation it will take to see athletic departments change their culture and behavior towards female coaches and administrators. Why wasn't Fresno State, for example, enough of a warning to prevent Iowa from repeating its pattern of mistakes?  It's important that the Polk County, Iowa, jury sent a strong message to college and university athletic departments that retaliation and discrimination doesn't pay, but are other athletic departments getting the message?

Thursday, April 13, 2017

Another Baylor Lawsuit Survives Motion to Dismiss

Last week a federal court in Texas ruled that Jasmin Hernandez's case against Baylor may proceed to the discovery phase of litigation, denying the university's effort to dismiss the case for insufficient pleading. The plaintiff alleged that she was sexually assaulted at a party by football player Tevin Elliott. Even though (she alleged) she reported the assault to various university officials, including the football coach Art Briles the university did not take any efforts to investigate or discipline Elliott. She also alleged that prior to her assault, another student had reported Tevin Elliott to the university's chief judicial officer for similar behavior, and that this student was told she was the sixth such student to do so. As such Hernandez claimed that Baylor was on notice of the risk posed by Elliott and was liable for the deliberate indifference that heightened the risk that she would be assaulted. Additionally, she alleged that Baylor was liable for deliberate indifference after she reported her assault, which contributed to her emotional harm.

Both of these claims were sufficiently alleged in the complaint, the court ruled.  However, the latter claim for post-reporting harm was barred by the statute of limitations because the events occurred more than two years ago.  Though the heightened risk claim was also based on events more than two years old, the plaintiff could not have have discovered the university's alleged concealment of sexual misconduct by football players and other students until 2016 when the report of an external investigation in Baylor's failings to respond to a pattern of sexual violence by football players. Until then, the court reasoned, the plaintiff could not have reasonably known that Baylor's alleged indifference had lead to her sexual assault, and thus the the statute of limitations did not begin to run until that time.

Hernandez v. Baylor Univ., No. 6:16-CV-69-RP, 2017 WL 1322262 (W.D. Tex. Apr. 7, 2017).

Friday, April 07, 2017

Two Key Ed Department Positions Filled This Week

This week we learned that Carlos G. Muñiz will be nominated to the position of general counsel to the Department of Education, and that Candice E. Jackson has been appointed "acting" Assistant Secretary for Civil Rights.

Muñiz once served as a deputy attorney general to Florida Governor Jeb Bush. Later, he entered private practice with the firm McGuire Woods. Notably, he represented Florida State when it was sued by a student challenging its handling of her report that she'd been raped by football player Jameis Winston. (The case, which we blogged about often, settled for $950,000.)  Because the general counsel will advise OCR on policy related to sexual assault enforcement, I was particularly interested to read the comments of John Clune, who represented the plaintiff, Winston's accuser. Clune told the New York Times that Muñiz is "approachable" and that he listened and cared about the plaintiff's positions. However, he also noted that Muñiz was critical of the investigation the Office for Civil Rights is conducting into Florida State's handling of the case. This is interesting, since the facts alleged to OCR were pretty egregious -- essentially, that FSU officials initially concealed the accusation and failed to conduct any kind of disciplinary proceeding in order to protect their star quarterback. Even a lawyer who must dispute the truth of those facts could still recognize that allegations along those lines are worthy of investigation. So Muñiz's criticism of OCR, as relayed by Clune, could indicate his belief that OCR's role in sexual assault matters (and other civil rights issues?) should be very limited. If that's true, he would likely use his position to press for changes to OCR's current policy of insisting educational institutions engage in prompt and equitable response to charges of sexual assault.

Jackson, an attorney in private practice, also created the "Their Lives" foundation, to "give a voice to victims of those who abuse power, particularly when that abuser is another woman." Despite the general-sounding nature of this description, the foundation's website seems devoted to giving a voice to Kathy Shelton's claims that she was the victim of abuse of power by Hillary Clinton when Clinton was appointed by the court system in Arkansas to represent Shelton's rapist. Does Jackson's public record of support and concern for a rape victim mean she will maintain or strengthen OCR's policies regarding institutional response to campus sexual assault? Or are her politics more anti-Clinton than anti-rape? Given that Jackson is only known as a critic of the Clintons, her appointment by Clinton's opponent could appear to some as one motivated by political patronage rather than merit. However, Jackson's appointment to "acting" Assistant Secretary for Civil Rights avoids scrutiny on this issue, as acting officials do not need to be approved by the Senate. Notably, however, federal law limits her term of service for no more than 300 days (technically, 210 days from 90 days after the President assumes office, i.e., until approximately November 16). It also prohibits the acting official from simultaneously being the nominee for the permanent position.

Wednesday, April 05, 2017

Full Seventh Circuit Rules Sex Discrimination Includes Sexual Orientation Discrimination

Yesterday, the Seventh Circuit Court of Appeals ruled that discrimination on the basis of sexual orientation is a form of sex discrimination. The case that gave rise to the ruling involved an openly-lesbian adjunct professor, Kim Hively, who taught at Ivy Tech Community College in South Bend, Indiana.  She alleged that Ivy Tech rejected her applications for various full-time teaching positions and eventually terminated her adjunct status due to bias against her sexual orientation. She filed suit under Title VII of the Civil Rights Act of 1964, the federal law that prohibits discrimination in employment on the basis of sex and other protected characteristics, but which does not provide express protection from discrimination due to sexual orientation. For this reason, a federal district court in Indiana dismissed her case. When she appealed to the Seventh Circuit, the three-judge panel that first heard her case agreed with the district court. But, the appellate court agreed to re-hear the case "en banc" with all judges participating. The full court's decision, which came out yesterday, reinstated Hivey's case and will allow her now to try to prove to the lower court that sexual orientation discrimination did in fact occur.

Even though Hively's case continues to be litigated, it has cleared a huge hurdle and in so doing, generated a significant appellate court decision on the relationship between sex discrimination and sexual orientation discrimination. Sex discrimination is generally evident in the comparison between how an employer treats an employee of one sex versus how that employer treats another otherwise-identical employee of the other sex. Using this paradigm, the Seventh Circuit reasoned that when an employer treats positively a male employee who has a female partner (or who is attracted to women), but treats adversely a female employee who has a female partner (or who is attracted to women), that is discrimination on the basis of the employee's sex.  Though the discrimination targets the fact that the victim of such discrimination is partnered with or attracted to a person of the same sex, i.e., their homosexual orientation, such discrimination "does not exist without taking the victim's... sex...into account."  We already know that sex discrimination works in this relational way (discriminating on the basis of some characteristic, like the victim's attraction to women, in relation to the victim's sex), because the Supreme Court endorsed that way of thinking about sex discrimination when it confirmed that it encompassed gender stereotyping.  An employer's adverse action towards a female employee who exhibits a certain characteristic or appearance, but not a male employee who does the same is discrimination "that does not exist without taking the victim's sex into account." Additionally, the court considered the Supreme Court's precedent in Loving v. Virginia, which ruled that a state law banning interracial marriage was race discrimination prohibited under the Constitution. If discrimination based on the race one is oriented to is race discrimination, then discrimination based on the sex one is oriented to is sex discrimination.

The Seventh Circuit decision is the first appellate court decision to employ this reasoning (for a lower court example, see Videckis v. Pepperdine, a Title IX case). Other appellate courts in the (sometimes distant) past have ruled against the gay or lesbian plaintiff on the grounds that Congress could have, but did not, include sexual orientation as a Title VII protected characteristic. The Seventh Circuit's departure from this reasoning sets up a circuit split that gives the Supreme Court a reason to weigh in should it so choose.  Although the court's decision interprets the sex discrimination provision in Title VII, it and any Supreme Court decision that affirms it, should there be one, will no doubt be influential in the Title IX context as well, since courts routinely refer to definitions of sex discrimination from Title VII cases when analyzing what it means under Title IX.

I also think this decision, though about sexual orientation, will help support the argument that sex discrimination includes discrimination on the basis of transgender status, since transgender discrimination also targets a characteristic relative to the person's sex. Discrimination against someone because their gender identity is not consonant with their birth-assigned sex is discrimination "that does not exist without taking the victim's sex into account." I would expect the Hively decision to be cited favorably by litigants challenging exclusion of transgender students and employees from gender-consonant restrooms and other manners of discrimination.

UND and USA Hockey

The US Women's National Hockey Team is currently playing in the World Championships in Michigan. (And the team has made it through to the semi-finals.) Prepared to boycott this tournament over gross inequities in pay and treatment between them and the men's team, there was a (nearly) 11th hour resolution to the situation. (The financial terms have not been confirmed by either the team or USA Hockey but they include monthly stipends--year-round--instead of just during the Olympic year; that previous agreement amounted to a total of $6,000 over the course of four years from USA Hockey to national team members.)

It was a moment of triumph for women's sports. It was a highlight of my week--and others I know felt similarly. It was a show of solidarity and steadfastness. USA Hockey, with whom the national team had been in negotiations for over a year, initially poo-pooed the threat of the boycott and sought out other athletes--first from Division I schools, then II, III and then on to high school and rec league teams. And they never found enough players to field a team-- a team that would have been (no offense to my rec league friends) quite substandard.

The men's team also backed the women, suggesting that if USA Hockey did not prevent the boycott, they too would  boycott their upcoming world championships.

In addition, the women effectively utilized social media platforms and the mainstream media took notice. The story was widely covered, including on ESPN!

Sadly, with the ink on the contracts barely dried*, other news came out from the world of women's hockey. The University of North Dakota is cutting its DI women's team. This is a team that feeds the national teams of the US and other countries.A team that produced two of the US national team's current stars--sisters Monique and Jocelyne Lamoureux (who transferred from Minnesota).

This does not appear to be a Title IX issue though this very confusing article said Title IX was considered and something about funneling the budget from women's hockey to both men's and women's sports. Running the numbers--last year's reported figures--and taking into account that two teams were cut last year and, along with women's ice hockey, men's and women's swimming will be cut at the end of the year, they appear to be in compliance with participation opportunities.

In other words, there is little to be done. Because, unlike the US women's national team, they do not--like most intercollegiate women's hockey teams--have widespread support. And part of the reason support for the team might be low is because of institutional priorities. The money saved from the five sports cut in two years will be going to the school's football program--no matter what UND says. Yes, state budget cuts are likely coming and the cuts are a response. But cutting these teams to address those budgets are a choice--an institutional choice--that allows the university to maintain the financial support to football-- a program that recently (2012) joined the "big time" Big Sky Conference--a move that requires a lot of capital.

I think USA Hockey was genuinely surprised by the support the national team rallied. They pushed back hard against a team that represents them and represents them well (despite the lack of support these women receive from the organization). In other words, USA Hockey was forced  to bow to the pressure of popular opinion and a culture of community within the world of hockey.

I don't know if UND can garner that support. The Lamoureux twins have made public statements about the cut and sent a letter to the university president asking for the team to be reinstated. They have said will use similar tactics employed by the national team in its campaign. And maybe it will work.

But I had hoped that the "mere" fact that this is a highly successful team that sends its players on to the Olympics would have been enough for the administration to put it in the keep column. That they would see being the only intercollegiate women's hockey program in the state as a responsibility. That these accomplishments and status would be a source of pride and perhaps even marketing for the school.

But maybe I should not be too surprised that a university which put its own athletic teams--including football--in jeopardy by continually defying and fighting the NCAA's ban on Native American mascots, does not know how to act in its own best interests, let alone ethically.


* it seems as good a time as any to trot out this cliche.

Tuesday, April 04, 2017

Title IX Dress Code Case Survives Motion to Dismiss

We often read about school dress code controversies, like students objecting to traditions that sort students by sex into different color graduation robes, or imposing a gender dress code on prom attire or yearbook photos. I've always thought that issues like these were ripe for Title IX challenge, since this is clearly treating students differently on the basis of sex in the absence of a statutory or regulatory exception. Litigation challenging these gendered dress codes, however, is rare. I think the reason is that is that high profile cases of public school dress codes are limited to special occasions (prom, senior pictures, cap and gown) that target students who are on the verge of graduation, and therefore no longer having standing or motivation to challenge the policy. Private schools are more likely to have gendered dress codes that govern students' day to day attire, but these schools are less likely to be subject to Title IX because many if not most private secondary schools don't receive federal education funding.

Recently, however, three students, via their parents, sued a charter school in North Carolina, challenging its policy that requires girls to wear skirts, jumpers and prohibits them from wearing shorts or pants. They argue that the policy "subjects them to archaic sex stereotypes about what constitutes appropriate behavior and conduct for girls, reinforcing the notion that girls, but not boys, must dress and behave modestly, that they are less physically active than boys and that they should behave and dress in a manner that is otherwise traditionally considered appropriately feminine." 

The plaintiffs claim that because the charter school is a statutory defined public school, its gender-based dress code violates the U.S. Constitution.  The school moved to dismiss this claim, arguing that the students knew about the dress code when they voluntarily enrolled at the charter school. However, the court pointed out, there is no doctrine of waiver when it comes to constitutional rights. The plaintiffs will thus be able to continue to press their argument that the dress code is rooted in generalizations and stereotypes and thus impermissible under the standard of heightened scrutiny articulated in U.S. v. Virginia

Additionally, the plaintiffs' Title IX claim survived the school's motion to dismiss. The plaintiffs properly alleged in their complaint that the school receives federal funding, that the policy discriminates by sex, and that the plaintiffs are harmed by the policy. In support of its motion to dismiss, the school argued that in 1982, the Department of Education repealed a Title IX regulatory provision that prohibited gendered dress codes. The school argued that the repeal constitutes evidence of the Department of Education's position that gendered dress codes are, therefore, permissible. However, while courts generally defer to agencies regulations that fill in gaps and details of broadly-worded statutes, this court understandably hesitated to defer to the school's argued inference that repealing the prohibition constituted permission for gendered dress codes. Title IX, notably, is a blanket ban on sex discrimination except where statutory and regulatory exceptions permit. Given the statute's structure, I don't think that a court is obligated to infer that the agency's repeal of an earlier provision about dress code is tantamount to creating an exception.

The court also noted that the USDA, a federal agency which also distributes federal funds to educational institutions in the form of a school lunch subsidies, also has Title IX regulations, which do in fact prohibit “discriminat[ing] against any person in the application of any rules of appearance.”  The court reasoned in its decision on the motion to dismiss that the case had not yet produced enough of a record for it to determine whether the USDA regulations were applicable and warranting judicial deference. The court appears willing to eventually decide how both the USDA and DoE regulations factor in to judicial interpretation of Title IX on the question of gendered dress codes, but it wasn't ready to do so early in the litigation. When the court eventually does so, however, the case could send a message to schools that this and other manners of gendered dress codes -- including the more commonly encountered policies governing prom, yearbook, and graduation ceremony -- are unlawful.

Decision: Peltier et al. v. Charter Day School, No. 7:16-CV-30-H, 2017 WL 1194460 (E.D.N.C. Mar. 30, 2017).

Tuesday, March 28, 2017

Title IX Extends to Rapes at Fraternity, Court Rules

A federal court in Kansas decided earlier this month that Kansas State University potentially violated Title IX when it failed to investigate two students' reports of having been raped while attending parties at off-campus fraternity houses. The university argued in support of its motion to dismiss two plaintiffs' separate lawsuits that the fraternity house was not a "program or activity" of the university to which Title IX applies. But the court disagreed, distinguishing a fraternity house from other non-university housing or settings on the basis of the "substantial control" the university exhibits over the fraternity. In particular, the university regulates fraternities' conduct and authorizes its parties. In fact, in this case, the university used one of the plaintiff's report of rape as grounds to penalize the fraternity for alcohol violations. Other indicia of the nexus of control include the university-hired staff members who provide service and support to fraternities and sororities, and the university's recognition of fraternities and sororities on its website as student organizations. Notably, the court reached its decision that Title IX extends to sexual misconduct taking place at off-campus fraternity houses without extending any deference to OCR's 2011 Dear Colleague Letter, which also interprets Title IX in similar fashion. So even if OCR changes or withdraws the Dear Colleague Letter, such potential future changes in OCR policy will not affect this aspect of the ruling.

These decisions are only preliminary ones that allow the cases to proceed to the discovery phase of litigation. The plaintiffs will still have to prove that the university had notice of their rapes and responded with deliberate indifference. However, it seems undisputed that each notified the university and the university did not respond at all. Maybe the university will try to appeal the lower court's decisions not to dismiss, but otherwise my prediction is that the parties settle.

The two decisions are:

Weckhorst v. Kansas State Univ., No. 16-CV-2255-JAR-GEB, 2017 WL 980456 (D. Kan. Mar. 14, 2017).

Farmer v. Kansas State Univ., No. 16-CV-2256-JAR-GEB, 2017 WL 980460 (D. Kan. Mar. 14, 2017)

Monday, March 27, 2017

OCR Continues to Open and Resolve Investigations into Institutions' Sexual Harassment and Sexual Assault Response

Whether and how the new presidential administration will alter the Department of Education's existing policies interpreting Title IX's application to sexual harassment and sexual assault remains to be seen.So far, however, there has been no discernible change in the agency's enforcement approach. Since the inauguration on January 20, the agency has continued to open new investigations -- a total of 13 according to the Chronicle of Higher Education's Title IX Tracker -- and has concluded several others that began under the prior administration by issuing findings and resolution  agreements that are similar to those we've seen in recent years.

Most recently, the Office for Civil Rights announced last week that it resolved Title IX violations by Whittenburg University in Ohio. The agency's investigation had been triggered by two complaints, filed in 2011 and 2013 respectively.  In addition to finding flaws with the university's written policies, it also determined that the university violated Title IX requirements in the way that it handled specific students' cases. For instance, it found the university officials told the family of one student who had reported being sexually assaulted that they would suspend the university's disciplinary process if the family pressed criminal charges. They also included information about the student's prior, unrelated sexual history in its investigative report that was distributed to the hearing panel.  In another case, the university's investigation was unreasonably delayed and the student who reported having been raped was not offered interim measures such as academic accommodations or counseling.  Failure to offer interim measures was also a deficiency in yet another case, one that OCR also criticized for having been insufficiently investigated.

Earlier, on March 9, the agency announced a resolution with Palo Alto Unified School District after finding violations of Title IX's requirement that educational institutions respond promptly and equitably to reports of sexual harassment and sexual violence. In one example, an assistant principal in the district received 25 reports from staff and faculty about sexually harassing behavior by the now-former principal, as well as a report that the principal had engaged in unwelcome physical contact with students. These reports accumulated for three years before the assistant principal finally addressed them with the Title IX coordinator. Though the district investigated and responded at that point, it treated the matter only as a personnel issue and did not investigate with Title IX compliance or obligations in mind. Another time, the school district failed to conduct its own investigation of  a student's report of having been sexually assaulted by a fellow student off-campus (though it did assist the student in filing a police report and offered other support). Nor did the district investigate the subsequent sexual harassment that the student reported she was subjected to for having reported the initial assault. 

Prior to that, on February 16, the University of Alaska agreed to revisit 23 cases of reported sexual harassment or assault that the university failed to adequately address, according to OCR findings. In some of these cases, the university failed entirely to conduct an investigation, such as a case in which faculty members learned that one of their students had been accused of sexually harassing middle school students at the site of his student teaching placement.  Even when the student was arrested for similar misconduct, the university continued its inaction, apparently because no university students had been victims. Other examples of the university's failure to investigate included a case in which a student reported a professor's sexual harassment, and where a student reported being assaulted in a university residential building by a non-student.  Besides failing to investigate, unreasonable delay was another frequent problem cited by OCR.  On the Fairbanks campus, the average investigation in 2013-14 lasted 122 days and the longest was 567 -- far longer than the 60-day timeframe that should normally occur.  At Anchorage, the longest was 403 and average of 97.  OCR's investigation also cited cases where the university failed to prevent retaliation, failed to provide the complainant with notice of the outcome, failed to provide complainants with interim measures, and other problems. 

All three resolution agreements imposed familiar requirements on the educational institution in question: assessing past reports of sexual harassment and sexual violence to determine whether the institution's response satisfied Title IX requirements; correcting problems where possible; revising policies and procedures to bring them into compliance; and improving training opportunities for relevant staff.  Alaska's agreement also included requirements to assess the campus climate, conduct informational sessions with students and otherwise improve the dissemination of information about the process for addressing sexual harassment and sexual assault, improve coordination with local enforcement, and other requirements. 

Sunday, March 26, 2017

Equal Protection Likely to Ensure Transgender Student's Bathroom Rights, Court Rules.

Last month a federal judge in Pennsylvania granted a preliminary injunction to a trio of three transgender students who sued to stop the Pine-Richland school district from enforcing a new policy that would have banned them from the bathrooms at the high school that correspond to their respective gender identities. The decision is notable because in its analysis of the plaintiffs' likely success on the merits (the judge's foremost question when deciding to issue a preliminary injunction) the court determined that the school district's policy violated their right to Equal Protection under the Constitution. The court determined that the plaintiffs' claim warranted intermediate scrutiny because transgender people fit the criteria by which courts have extended intermediate scrutiny to other groups -- such as having historically been vulnerable to discrimination, being identifiable by immutable characteristics, and constituting a minority lacking political power. This aspect of the court's reasoning is groundbreaking. Other courts have applied intermediate scrutiny in transgender discrimination cases, but only to the extent that such discrimination overlaps with sex discrimination. Here, the court predicts that discrimination based on one's transgender status itself warrants intermediate scrutiny.

If this reasoning takes hold, public schools and employers (as the Constitution only applied to government action) will have a much more difficult time enforcing bathroom bans. This is because the consequence of intermediate scrutiny is that the defendant, here the school district, must demonstrate persuasive (as opposed to merely rational) reasons for treating transgender students differently from others. The school district could not satisfy this requirement by speculating that permitting gender-consonant bathroom use by transgender students would lead to non-transgender students causing disruption in bathrooms designated for the opposite sex, which is what the school board claimed to fear. The fact that the three students in this case used the bathrooms that corresponded to their gender identities prior to the ban's enactment without causing any such problems negated the argument that such a justification was persuasive. Nor was the school board's privacy rationale persuasive, since the presence of bathroom stalls already ensured the privacy of all users. Along these lines, the court also rejected the school district's argument that a non-transgender bathroom user might decide to change clothes inside the bathroom but outside of a stall, risking an invasion of privacy should they encounter a transgender person, since the school could not produce any evidence that students used the bathroom for such a purpose. It thus concluded that when reaching the merits of the case the court would likely find in favor of the plaintiffs, thus warranting a preliminary injunction against the school district's policy while litigation is pending.

However, the court did not determine that the plaintiffs would likely succeed on their simultaneous Title IX claim.  Unlike the Equal Protection Clause, which is flexible in the discrimination that it covers, Title IX only prohibits discrimination because of sex. Though some courts have found that Title IX covers a transgender student's right to use the bathroom that matches their gender identity, these decisions deferred to the now-withdrawn interpretation of the previous administration's Department of Education. The court determined there was too much uncertainty in this matter to satisfy the requirement of "likely" success on the merits. This part of the decision did not affect the ruling's bottom line, however, since the court already determined that the plaintiffs were likely to succeed on Equal Protection grounds.

Thursday, March 09, 2017

Court Denies Baylor's Motion to Dismiss

A key preliminary ruling came this week in one of the several lawsuits against Baylor University that argue its mishandling of reported sexual assaults violates Title IX.  This lawsuit was filed by ten anonymous plaintiffs who allege having been sexual assaulted by fellow students (including, in one case, a member of the football team) between 2004 and 2016, while each was a student at the time. Each of the plaintiffs allege that they reported her sexual assault to various appropriate campus officials, but that the university responded inadequately by failing to investigate and discipline the alleged offender and failing to address the effects of assault through with academic, counseling, and other accommodations. In addition to arguing that the university's indifferent response to the their own report caused them psychological and economic damages that are subject to remedy under Title IX (so-called "post-reporting claims"), they also allege that the university's systematic failure to address sexual assault more generally increased their risks of being assaulted in the first place (so-called "heightened risk claims").

The judge first decided that the plaintiffs' post-reporting claims adequately alleged the required elements of claim for money damages under Title IX, mainly, notice to an appropriate person and the institution's deliberately indifferent response. Baylor argued that the plaintiffs' allegations about the institution's response cited violations of the Department of Education's Dear Colleague Letter and argued, correctly, that such violations do not automatically constitute deliberate indifference. However, the court decided that the plaintiffs had still adequately alleged deliberate indifference, pointing out that violations of the DCL should at least be a factor in the analysis of whether the responses were, overall, indifferent. The court also agreed with the plaintiffs that they were not required to allege that the university's indifferent respond lead to further sexual harassment or assault, only that it heightened the risk thereof.  However, four of the ten plaintiffs' claims for harm arising from the university's failure to respond to their reports are outside the two-year statute of limitations period that applies to this case. So only the post-reporting claims of the other six will move forward.

Next, the judge reasoned that the heightened risk claims were also adequately alleged. The plaintiffs alleged that the university's conduct in the face of widespread sexual assault constituted an intentionally discriminatory policy of exposing students to a heightened risk of sexual assault. Such conduct included systematically misinforming students of their rights, failing to investigate, discouraging reporting, and falsely reporting to the government that no sexual assaults occurred. The court reasoned that because they were alleging an intentional policy, the requirement to allege deliberate indifference did not apply.  The judge also determined that all ten of the heightened risk claims can proceed, even those based on alleged sexual assaults that took place more than two years ago, because only recently did the plaintiffs have access to all the information they needed to allege the kind of pattern of repeated misconduct that could amount to an intentionally discriminatory policy. In fact, as some legal experts have already pointed out, the judge has effectively set a 2018 deadline for other potential lawsuits by victims of other past sexual assaults. It will be interesting to see if this increases further still the number of lawsuits against Baylor. It also makes it less likely that Baylor will succeed in getting the other, similar lawsuits dismissed.

Monday, March 06, 2017

Supreme Court Cancels Hearing in Transgender Bathroom Case

Today the Supreme Court announced that it would not hear oral arguments in Gloucester County School Board v. G.G., the case asserting a transgender student's right under Title IX to use the bathroom that matches his gender identity, as it had been schedule to do later this month. Instead, the Court decided to vacate the Fourth Circuit Court of Appeals opinion that had been appealed to the Court and order a rehearing in the case. The Fourth Circuit court had earlier held that the plaintiff in the case, high school student Gavin Grimm, had the right to use the boys' bathroom at his high school.  However, the Fourth Circuit decision deferred to the Obama administration's interpretation of Title IX in reaching that result. Now that the current administration has withdrawn that guidance, the deference argument is moot, and it is up to the appellate court to decide for itself whether Title IX supports the right that Gavin Grimm claims. Whatever the Fourth Circuit does decides could eventually be appealed again to the Supreme Court, but for now, the battlefield of this case has shifted from D.C. to Richmond.

Besides postponing an eventual Supreme Court showdown over transgender rights, today's move by the Supreme Court cancels another one over the more general question of whether courts should defer to guidance documents issued by government agencies -- though this results may have been ordained (and some might suggest, orchestrated) by the administration's decision to withdraw the guidance in the first place. While many have criticized the former administration's tendency to issue clarifying guidance documents rather than create new rules, it may be that current administration plans to do rely on a similar strategy at least as often. In any case, the president benefits from the fact that doctrine of judicial deference to such interpretations remains in tact.

Friday, March 03, 2017

Baylor & culture

As investigators from the Office of Civil Rights prepare for a trip to Waco, Texas to investigate Baylor University, employees of the school continue to make headlines for making very ill-advised comments. 

Kim Mulkey, the women's basketball coach, verbalized the frustration many at Baylor have over the way their school is being portrayed nationally (i.e., as a bad, unsafe place for women; a culture that protects athletics and athletes at all costs, including the safety of the student body generally). At least that is the excuse people have been providing for her since her on-court, post-game comments last weekend during which she said: “If somebody is around you and they ever say, ‘I will never send my daughter to Baylor,’ you should knock them right in the face.” In the actual post-game conference she said about the scandal,  " [I am] tired of hearing about it" and to that people should "move on, find another story to write."

Let's problematically put aside for a moment the violence of her statement and reflect on the message.

I don't know if Mulkey has lost recruits because of the scandal; women who said they didn't feel safe attending Baylor. But it's possible that Mulkey is simply sticking up for her school.

Regardless, she is sending the message that not only is everything alright at Baylor--everything is great--because Baylor is "the damn best school in America!" This is the ultra-nationalism of school pride. It is ignoring the problems Baylor so clearly has and refuses to acknowledge. In that moment (and in subsequent moments I will turn to next) she is contributing to the culture she--and many, many others--says does not exist at Baylor.

In doing so she 1) encourages a violent response (see again ultra-nationalism) and 2) erases the experiences of the women who were raped at Baylor.

Sunday (a day after mistakes were made): Apologies were issued. Mulkey does an interview with ESPNW writer Mechelle Voepel in which she says the comment about punching people was a "poor choice of words." What she really meant, she explains, was that people should be firm with those who are speaking badly of Baylor. She has interpreted the rumors that parents would not send their daughters to Baylor as judgements on the women currently attending BU. The sentiments behind those alleged rumors are more aimed at the safety of future college students. There is no implication that the women who choose be there now are misguided.

She said she takes seriously the situations of the women who were assaulted and that victim should always be helped. She said she would never support anybody who denied help to victims. But she added that she does not "think that everybody at Baylor should be put under an umbrella as all being a part of the things that happened. I can't fathom anybody not helping someone who is a victim of that type of crime. I don't condone it. My words [Saturday] did not express exactly what I was trying to say."

It remains unclear what exactly she was saying. But I will offer an interpretation of the initial comments and apology: Baylor is awesome. Don't let anyone tell you otherwise. But don't hit them as you tell them that. My daughter went here and she was fine. Everything is fine. Yea, maybe some bad things happened to a few women, but not everyone here is responsible for that so please stop asking me questions about it and let me coach basketball.

Mulkey added insult to injury in the wake of the apology. In post-game comments just a day later she refused to answer questions about her comments. She just kept referring people to the Voepel article.

Mulkey is clearly a part of the Baylor culture that has created this scandal. She may not have directly refused help to a victim, but her denial of the realities on the campus she is trying to bring young women to is part of the culture that allowed those actions to occur. There will be no change at Baylor until people there acknowledge the problems that existed, the problems that persist, and that major changes need to be implemented--including training your employees on what to say about the scandal.

Disciplined-Student Litigation Roundup

Here is a summary of some recent judicial decisions in cases brought by students who were disciplined for sexual assault.

1. Colorado State University-Pueblo.  A federal magistrate rejected the university's motion to dismiss a case filed by a student who alleged that he was suspended for sexual assault in a biased and erroneous disciplinary proceeding conducted by university officials. The magistrate agreed that the plaintiff's allegations could support liability under Title IX if they eventually prove true. The complaint's allegations that university officials ignored exculpatory evidence, including statements by the complainant that their sexual encounter was consensual, evidence suggesting that the complainant and the respondent had consensual contact after the alleged assault, and evidence that could have indicated complainant's motive in filing the complaint was to conceal and avoid being punished for a prohibited relationship (she was a student in the athletic training program and he was a member of the football team).  The magistrate acknowledged that ignoring such  evidence indicates bias, but not necessarily gender bias which is required for institutional liability under Title IX.  However, the complaint's additional allegations about the investigator's gender bias, particularly, bias about football players' propensity to rape, could if proven satisfy that requirement, the magistrate determined. Importantly, another aspect of this decision dismissed the plaintiff's direct challenge to the Department of Education's Dear Colleague Letter.  Here, the magistrate reasoned that the plaintiff lacked standing to challenge the DCL because it did not cause the injuries that he alleges.

2.  Amherst College. Title IX and breach of contract claims against Amherst College filed by a student expelled for sexual assault survived the college's motion to dismiss. Like the case described above, the plaintiff here also alleges that the disciplinary proceeding failed to take into account evidence that would have shown consent, including some text messages sent by the complainant immediately following her their sexual encounter in which she describes herself as the initiator of sexual activity. The court determined that the plaintiff satisfactorily alleged that this and other procedural errors were motivated by bias by including claims that his accuser was known by the college to be part of a "student-led movement" pressuring the college to change the way it handles sexual assault complaints, and that this pressure motivated the college to make procedural errors in the plaintiff's case in order to expel a male student for sexual assault. In addition, the plaintiff's selective enforcement claim also survived because the plaintiff alleged that male and female students were treated differently by the disciplinary process.  The college allegedly failed to encourage him to file a complaint against her when they discovered the text messages suggesting she may have initiated sexual activity with Doe while he was “blacked out,” and thus incapable of consenting, but on the hand, encouraged her to file a complaint against him upon discovery of her belief that she was assaulted by him. Notably, the plaintiff's complaint was one of the few I've seen that alleged a contemporaneous claim of race discrimination in the pattern of enforcement against black men. However, this claim was dismissed as it was not supported by sufficiently specific allegations.

3. St. Thomas University. In contrast to the two cases above, a federal court in Minnesota did grant St. Thomas University's motion to dismiss a Title IX claim alleging gender bias and mishandling of a sexual assault complaint. Here, the plaintiff's only support for his allegation that procedural errors resulted from gender bias was "pressure from the federal government to punish male students accused of sexual assault." The court rejected the sufficiency of this allegation, noting the absence of "targetted stress" imposed by the government on the university, that would have caused it to engage in unfavorable treatment of male students accused of sexual assault. However, this decision notably denied the university's motion to dismiss the plaintiff's claim of negligence (though the court was skeptical that the factual record would provide evidence necessary for liability on this claim).

4. San Diego State University.  While a Title IX claim was not at issue in this case, a plaintiff prevailed against San Diego State on grounds that the university's failure to provide him with an "adult adviser" constituted procedural unfairness in violation of the state administrative law. In contrast to the plaintiff, who was required to speak for himself in the hearing, the court noted that the complainant received the assistance and advocacy of the university official who had initially investigated the case. The court made clear that it is not requiring universities to furnish respondents with a lawyer, but that respondent needed some kind of adult advocate, like a faculty member, to level the playing field.  Further litigation is required to determine if the plaintiff, who had been expelled, must be reinstated.

Thursday, February 23, 2017

More on the Rescission of OCR's Transgender Guidance

Following up on Kris's post from yesterday about the rescission of OCR's prior clarification about Title IX's application to transgender students, I wanted to contribute some additional points. First, in light of the existing injunction against the application of the guidance to "intimate spaces" like bathrooms and locker rooms, rescinding the guidance highlights the Department's lack of support for transgender students' rights and safety even outside of that context.  It is saying, essentially, that it will turn a blind eye to students who might be rejected or expelled from college because of their transgender status, and that it doesn't care if school district officials ignores bullying and harassment of transgender students. This is a harmful position for the federal government to take, especially in light of the fact that fewer than 20 states provide protection for transgender students facing harassment and discrimination.

That said, I need to emphasize that Title IX's dual enforcement mechanism give victims of sex discrimination two choices to assert their rights -- to complain to the Department of Education and/or to file a lawsuit.  Therefore, it is still possible for the courts to interpret Title IX to protect transgender students rights and to subject school districts/universities to liability for violating those rights.  This would not require an extreme or unusual interpretation of the law in most cases, as evidenced by numerous courts that have found that the the sex discrimination provision of Title VII protects transgender employees and job applicants who experience some forms of employment discrimination.  Even in the most challenging context, that of sex-segregated spaces like bathrooms, courts are capable of reading sex discrimination to mean discrimination based on transgender identity, which is an evaluation that takes sex into account, in that it considers of one's gender identity relative to one's (natal) sex.  Lawyers have their work cut out for them, but this is definitely not "game over" for transgender rights and Title IX.

Wednesday, February 22, 2017

Transgender protections to be eliminated

The rollbacks are beginning. It was--unfortunately--not very surprising to read that the current administration will not uphold the clarification which grants transgender students protection under Title IX.

Also unsurprising is that the meaning of this announcement is unclear. The current president stated, through his press secretary, that use of bathrooms and locker rooms in public schools should be an issue decided by the states. Because apparently the previous regs were too confusing and too hard to implement.

 However, there is some indication that the anti-bullying protections will remain. This would theoretically protect trans and gender non-conforming students; but not allow them to use the bathroom of their choice. But backlash could easily threaten these as well.

So that puts us back to the pre-clarification days of angry PTA meetings and offensive ads by "family values" groups.

Truthfully, of course, those angry meetings, the heartbreaking stories of students who are bullied, who are not supported by their communities and sometimes by their families, have persisted. But now those students cannot look to the government to protect them. They cannot gain validation from the fact that the actions of those around them are banned by the government. The misinformed ads will persist. They may, as we have seen in other arenas, become more overt, more vitriolic, more misinformed.

This is just the first move to weaken (possibly dismantle?) Title IX. We have a secretary of education who would not comment on Title IX enforcement (it's unclear if she knows what it is) and what appears to be the pending nomination of an OCR chief (assistant secretary for civil rights) who thinks the previous administration overstepped in regards to campus sexual assault provisions.

Here is the good news: we have a vibrant movement committed to reducing campus sexual assault and instituting and maintaining proper policies and procedures for dealing with the crime. In regards to protecting trans students, the fight will be more local. We have seen the backlash to HB2 in North Carolina. We can pressure state and local officials to make schools (and other spaces) safe for trans people. We can work within our own institutions to create gender inclusive environments.

Friday, February 03, 2017

Private School Suspends Girl Who Sued to Play on Boys' Team

The local news in New Jersey recently reported about the decision of St. Theresa's School in Kenilworth to expel a female seventh grade student and her sister after the seventh-grader's unsuccessful attempts to sue the school for the right to try out for the boy's basketball team. A judge ruled in January that she had no right under applicable law, and the family is appealing.

If this student went to public school, she would have a strong argument that the U.S. Constitution's Equal Protection Clause protects her right to try out for the boys' team, which is the only basketball team offered by her school. The Equal Protection Clause requires state and local governments, including school districts, to avoid generalizations and stereotypes when making any sex-based classification. Under this rationale, female students have prevailed in many cases seeking the right to try out for a variety of sports, including sports like basketball that are covered by Title IX's contact sports exemption.

If she went to public school, the student and her family would also have legal recourse to challenge the decision to expel the student and her sister as apparent retaliation for the family's decision to appeal, since Title IX provides strong protection against retaliation. But the majority of private religious elementary and secondary schools do not accept federal funding, insulating them from the obligation to protect students civil rights. Unless St. Theresa's is among those private schools who participate federal programs to subsidize student's school lunches or to purchase classroom technology, the student and her family cannot rely on this statute for recourse.

Often when I write posts about stories where Title IX did not apply, I make the point that students and their families need to be careful when selecting private schools, since that decision often subjects the student to sex discrimination without legal recourse. But it also a cautionary tale against privatization as a policy matter. If federal support for public schools wains or disappears under the current administration -- a possibility signaled by president's nomination of Betsy DeVos -- more and more families may be compelled to accept private schools as a result. This shift would send more and more students like this one into the void of civil rights, with no statutory or constitutional protections available.

Tuesday, January 31, 2017

Boy Scouts of America Opens Membership to Transgender Boys

The Boy Scouts of America announced yesterday that it will "accept and register youth in the Cub and Boy Scout programs based on the gender identity indicated on the application." This is a change from the organization's previous policy that looked to the applicant's birth certificate for the evidence of eligibility for membership, and it paves the way for transgender boys to be able to join the organization. In its report on this story, the New York Times underscored the abrupt and marked reversal of course by pointing out that only last month a New Jersey Cub Scout became the first transgender boy to be rejected from the Boy Scouts when he was removed from his troop one month after joining.  

The BSA is not subject to Title IX, but I am posting about this story on the Title IX Blog because I think it sets a good example for school districts and other organizations that may be considering similar policy changes. The Boy Scouts are in a position to be particularly persuasive to school districts because they often meet in and are connected to schools. The timing of their policy change is also useful, as it seems some school districts are using the anticipated repeal of  OCR's guidance about Title IX's application to transgender students as an excuse to reject proposed policies that would protect LGBT students and employees. The new BSA policy proves that even without the government's promise to enforce Title IX in favor of transgender rights, it is still both legal and appropriate for local organizations to do the right thing on their own.

Monday, January 30, 2017

Updates from Baylor, Amherst

An additional lawsuit was filed against Baylor at the end of last week. A former female student alleges she was raped by two football players in 2013 while other players recorded the assault and shared the video. The school took two years to investigate the assault. It suspended and eventually expelled one of the players. The other transferred. The lawsuit, like the others, cites a culture of sexual violence at Baylor; a culture Ken Starr claimed did not exist both while he was president of the university and even after his departure.

New information, though, has emerged from this filing. Previously, we have known about the 17 incidents since 2011 that involved 19 players. The lawsuit states that there have been 52 sexual assaults (within an unnamed 4-year period) by 30 football players. The increase is likely due to the fact that the woman who filed the lawsuit was a member of a campus group organized to show football recruits around during visits. Members were supposed to be available for sex; a tool used to sell Baylor to the prospective players. Art Briles's attorney said the former coach, who himself is involved in litigation with the school, denies such a culture existed under his leadership.

With little attention, Amherst College announced before the start of the current semester, that they had concluded their investigation of the offensive messages sent by members of the men's cross country team. Sanctions include suspensions ranging from several meets to the remainder of an athlete's Amherst career. All members must undergo an "educational process" and the team is on probation until 2018.


Wednesday, January 18, 2017

DeVos Won't Commit to Enforcing Title IX

This week, the Senate Committee on Health, Education, Labor, and Pensions held a hearing on Betsy DeVos's nomination to be the next Secretary of Education. Until this point, DeVos has not made any public statements on Title IX, so the best we have been able to do is speculate on her view of how the law should be interpreted and enforced.  For example, it seems reasonable to predict that she will scale back enforcement of the statute's application to LGBT students, based on her past, extensive financial support for anti-gay and religious causes.

Though we anticipated that a confirmation hearing might shed some light on the nominee's additional plans for the Department of Education and Title IX, DeVos provided few concrete responses to questions by committee members. Regarding Title IX in particular, DeVos said it would be "premature" to commit to enforcing sexual assault statutes like Title IX and Campus SaVE, in response to questioning by Senator Casey (D-Pa.). She also denied that she had promised Republican Senators that she had plans to "reign in" the OCR.

On other issues, she was similarly cagey, such as when she refused to commit to Senator Warren (D-Ma.) that she would enforce existing regulations that protect students at for-profit institutions from fraud, or when she declined to reassure Senator Murray (D-Wa.) that she not was planning to dismantle public education. In fact, the only of DeVos's positions that is clear is her support for "school choice" which many see as a euphemism for privatization, and for which she and her advocacy have come under fire in her home state of Michigan. She also dodged questions -- about guns, and about services for students with disabilities -- by invoking the mantra of "best left to the states to decide" (though she eventually relented that the Individuals with Disabilities in Education Act is in fact federal law.)

Though one Republican, Senator Murkowski of Alaska, pushed back somewhat on DeVos's school choice ambitions -- asking that her commitment to traditional public education was as “strong and robust” as her passion for school choice -- it is evident that DeVos has the support of the Senate majority, and will likely be confirmed next week.

Wednesday, January 11, 2017

Updates

In Pennsylvania, the hazing case against football players participating in No Gay Thursdays has been settled. Three seniors, accused of harassing/hazing a first-year player, plead guilty to summary harassment. There were discrepancies between what was originally reported (penetration with a broomstick handle) and what was presented during the hearings (pushing a broomstick handle against the victim's leg while they held him down). How the seniors were punished remains unknown. Summary harassment is a citation, not a criminal offense.

As a reminder, No Gay Thursday had been a team tradition for several years. The football coach was initially suspended and then resigned. The remaining football staff was fired; though they were told they could reapply for their jobs. While the actions initially reported seem to have been wrong, the day itself and the culture that created it was still present and threatening. 

There is a Title IX complaint against Liberty University from a non-student who said she was sexually assaulted by a university employee in 2015. The university, which refused to fire the employee after their own investigation into the accusation, said it expects the complaint to be dismissed. But if I was OCR, I would take the opportunity to go to Liberty and find out what is happening with their brand new athletics director.

In November, Liberty hired Ian McGraw, the former Baylor AD who is facing a lawsuit from a Baylor student who accuses him of knowing that former football player Tevin Elliot had a history of sexually assault and displayed deliberate indifference, which led to Elliot assaulting her. Basically, McGraw was part of the Baylor house that got cleaned out when all these things--including additional assaults by athletes and non-athletes, and more deliberate indifference among various campus offices--came to light. Liberty president Jerry Falwell, Jr. is very enthusiastic about his choice: “You look at what Baylor was able to do during his tenure, it fits perfectly with where we see our sports programs going.  This is an exciting time for us.” He also presented McGraw's exit from Baylor as a choice.

I have written frequently about how athletes who commit physical and sexual assaults are often passed around athletics programs by coaches and admins who willfully ignore the issues. I did not think McGraw would be hired so quickly and by another ultra conservative Christian institution. Liberty has set itself up for problems should anything happen under McGraw's tenure. And its moral failings are very much in display with this move. Some in the Liberty community are not happy. Though no students would speak to ESPNW on the record for fear of retaliation. the majority were displeased with the hire and the repentance narrative the school is employing in support of the hiring. Several alum have spoken out, including some who said they would stop donating to the school while McGraw is there.

More on the Baylor swept asides: former coach Art Briles is suing three Baylor regents and one university administrator for libel, slander, and conspiracy. In the lawsuit, Briles claims that the four have made false statements about him in the press. These comments have prevented him from getting another head coaching job, he claims. Not sure how this lawsuit affects the very large settlement Briles received. As part of that deal, Briles was told he could not discuss the cases nor criticize the regents. That was in June. Sometimes there are time limits on such terms; but less than a year seems to be a bit short. Meanwhile, Briles could hit up his old boss for a job. Neither McGraw nor Liberty seem to care all that much about accusations, about character, or the safety of their student body.

Friday, January 06, 2017

Catching up: Stanford

The infamous case of Brock Turner, former Stanford student athlete who sexually assaulted a woman, was found guilty and served 3 months for the crime, apparently has taught Stanford University very little. The mindset of administrators is similar to that of the judge who sentenced Turner--who raped an unconscious woman behind a dumpster and then left her there. There is a fear of ruining the lives of the men who commit these crimes. Consequently, some of them are still on campus and the university is facing lawsuits and complaints about how it handles sexual assault.

[Interesting bit of information: most of the complaints pending against Stanford were ongoing at the time of the Turner case--something we did not hear much about in the coverage of that case. ]

Stanford currently is piloting a new program: using a 3-person panel and requiring the decision to punish be unanimous--not a simple majority--because “being expelled is really a life-changing punishment” according to the provost.The unanimity standard was put into practice in 2016. Expulsion is the only option if the accused/investigated is found responsible.

Two weeks ago The New York Times wrote a feature on Stanford and its handling of a 2015 case in which a disciplinary panel of 5 found a football player guilty of sexual assault--twice.  Correction: a simple majority of the panel members found him guilty. But the standard at the time was a 4-1 decision requirement.  So he was never punished and played last week in Stanford's bowl game. The victim, who studied elsewhere for a semester has not decided is she will return to Stanford.

Backing up a little though. Stanford has several Title IX complaints pending. Filed by former students, the complaints are centered on how the university investigates Title IX complaints as well as the disciplinary process. Again, as noted above, Standford has been changing their policies and procedures, and apparently are eager to avoid the feds coming to Palo Alto for a visit. In December, BuzzFeed reported that at least two of the women--both victims of sexual assault--who have filed OCR complaints were offered money in exchange for the withdrawal of the complaints. In one of those cases the money was offered under the guise of support for therapy and other expenses resulting from the assault; but conditional upon withdrawal of the complaint. (Withdrawal of a complaint does not guarantee that OCR will drop its investigation. It does not require a complaint be filed in order to initiate an investigation.)

As a reminder, the student-run marching band has been dormant this year (except for bowl games!?) in the wake of revelations about hazing--of a sexual nature. (All hazing deserves punishment; the nature of this hazing speaks to the campus climate, which is why I mentioned it.)

In addition to the OCR complaints, a lawsuit was filed against the school in December. A woman who was physically and sexually assaulted by a man with whom she had tried to end relations encountered resistance from university staff and officials as she made her way through the process. She heard the now unfortunately common responses to sexual assault that included questions about whether she really wanted to have sex with him (from a counselor) and whether she really wanted to pursue charges against the assailant, who admitted to student life staff that he did indeed rape the woman in question. Punishment was not pursued because staff believed he was sorry and would not re-offend.

He re-offended. Against at least two other women at Stanford.  He graduated as a student in good standing in 2014. He was issued a 10-year ban from campus.

Stanford is pushing back against the media coverage of its many complaints and several lawsuits. There is a lot of PR happening. There is a lot more to come.