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.