Friday, September 29, 2017

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

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

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

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

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

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

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

Tuesday, September 26, 2017

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

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

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

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

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

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

Friday, September 22, 2017

Department of Education Withdraws 2011 Dear Colleague Letter

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

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

  • The Q&A continues to endorse the school's obligation to respond whenever it "knows or reasonably should have known" that an incident of sexual misconduct occurred, regardless of whether someone is filing a complaint.  To be actionable, the incident(s) must constitute "severe, persistent or pervasive" and operate to deny or limit a student's ability to participate in school programs. This is consistent with the 2001 Guidance. 
  • Like the 2001 Guidance, the new Q&A says that "it may be appropriate" for schools to take interim measures -- services and accommodations like counseling, schedule or housing modifications, extensions, etc. that institutions make to students while an investigation and grievance proceeding. The new Q&A adds, however, that interim measures may be appropriate for the responding party as well as the reporting party.
  • The requirement that schools adopt and publish a grievance procedures stems from the 2001 Guidance and is codified by the Clery regs. This requirement, as well as various characteristics that are also codified, is retained in the Q&A.  
  • That said, the new Q&A abandons the specific 60 day time frame that the 2011 Dear Colleague Letter offered as an interpretation of the existing requirement that the procedures ensure "prompt" investigation.
  • The new Q&A also abandons the 2011 Dear Colleague Letter's requirement that institutions use the preponderance standard of evidence as part of the existing requirement that procedures be "equitable." The Q&A says that institutions may use either the preponderance standard OR the clear and convincing standard. It's arguable that this is a new approach for the Department, since even prior to the 2011 Dear Colleague Letter, the agency required institutions to use the preponderance on a case-by-case basis in enforcement actions. 
  • On the other hand, the new Q&A retains the requirement that institutions provide symmetrical procedural rights to complainants and respondents (with one exception noted in the next bullet point). This was a major aspect of the 2011 Dear Colleague Letter and it put an end to the practice of holding one-sided hearings where the complainant had no role or even right to be there. Some of the symmetry principal that originated in the 2011 Dear Colleague Letter was codified in the Clery regs, including the right to receive notice of the outcome and the right to have present at the hearing an advisor of the party's choice. The Q&A does not repeal the aspects of the symmetry principle that are not so codified. 
  • The exception to the point above is the right to appeal. Whereas the 2011 Dear Colleague Letter extended the "symmetry" requirement to the right to appeal, the new Q&A permits institutions who offer a right to appeal to either offer it to both parties OR to restrict it only to the respondent.  The Q&A attributes this (vaguely) to notions of due process.  
So this is the state of things until the Department promulgates new regulations. My guess is that if we had to guess about the content of the new regulations the agency will propose, the Q&A is a good indication.   

Wednesday, September 20, 2017

Bipartisan Congressional Group Urge DeVos to Retain Preponderance Standard

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

The letters signatories are:

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

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

Tuesday, September 12, 2017

What has been happening at Auburn?

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

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

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

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

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

No word on whether or when OCR will investigate.

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

Thursday, September 07, 2017

DeVos Announces Notice and Comment Process for Addressing Campus Sexual Misconduct

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

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

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