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.

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.

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.

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.

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.

Catching up: Minnesota football attempts boycott

Several significant events occurred in the past few weeks as we were wrapping up semesters, traveling, celebrating good news and times, and reflecting on what 2017 will bring and how we will respond.We will be catching up on these. Here is installment one about the Minnesota football boycott.

Minnesota football team protests Title IX sanctions
Part I: The members of the University of Minnesota football team banded together and said they would not participate in any football-related activities--including their scheduled December 27 bowl game--in protest of sanctions handed down by school officials against ten team members involved in sexual assault and harassment of a female student. They demanded the president and athletic director  reverse the suspension of their teammates.

In what was supposed to resemble activism, the players presented a united front, had a press conference, and told the media that the Title IX infractions were unfairly meted out, that there was violation of due process and constitutional rights. The action is supported by head coach, Tracy Claeys, who tweeted (2017--the year when people become more self-aware about Twitter??) that he has  "never been more proud of our kids. I respect their rights [and] support their effort to make a better world!" He also invoked the concept of due process.

There was a flurry of opinion pieces (and opinion pieces masquerading as fact) about Title IX investigations run amok.

Part II: The players thought that the cultural capital of football and its corresponding economic capital (bowl games = $$) would prevail. Not in this cultural climate--and not with the evidence against the ten players, including four who had been suspended by the coach himself for team violations after the incident was reported in September.

Players hold another press conference and say they will indeed play the bowl game and resume other activities. The change was attributed to the boycotting players actually reading the 80+ page report of the incident; a report compiled by the school as it investigated the incident as per its legal obligations. The reading of the document was part of a meeting with the university president. I imagine that the power of football was brought up in that conversation as well. The power bestowed on intercollegiate football players and the ability of universities to take that power away. (There were many troubling perceptions of the power of football within this whole event.)

The second press conference reflected some of these power paradigms Spokesperson for the boycott said "we understand that what has occurred these past few days and playing football for the University of Minnesota is larger than just us."

Sadly there was no concern for the victim. No support for the role of Title IX and its enforcers in keeping students safe. No clarification about Title IX investigations and how they differ from the criminal process. In short, it does not seem like anyone learned anything except how to (and how not to) wield the power of football.

Part III: Minnesota wins the bowl game. A Forbes writer attributes the underdog win to the "solidarity" that was established during the boycott and calls the boycott a "silent victory." Solidarity in the name of misogyny is not very silent--especially in football.

The school announces this week that Claeys has been fired. The athletics director (in his first year) said that there were issues in the program around recruiting and ticket sales but admitted that the coach's comments during the boycott did not help his cause. There has been pushback against the firing.