'Tis the season...

..in which people start complaining about how they aren’t allowed to/are shamed for/tired of hearing about listening to Baby, It’s Cold Outside. 

I get it. I listened to that song growing up too. It’s catchy. It’s part of the canon. It’s part of the culture.

It is, in fact, a creation of that culture. And maybe it hits that nostalgic note for some in which men were men and women were women and the relations between the sexes were seen as simpler. And wouldn’t it just be great to get back to that… Romance, desire, lust even. Enjoyable things for many.

We are still there/here. Because one, things are (and were) never simple. But two, we still are immersed in a culture of sexual coercion and assault. We breathe that culture. We keep it alive. Brett Kavanaugh does not just happen. Brock Turner does not just happen. Sexual traffickers do not just happen (nor do life sentences for their victims who kill their captors). Fraternity presidents who rape women get plea deals and no jail time do not just happen. This is not Bad Apple Syndrome. This is rape culture.

Yes, I am making a connection between Baby, It’s Cold Outside and horrendous acts of violence. Is there a direct line? No. But we don’t live in a society of direct lines. We live in a matrix of power relations and interconnections.

This is sometimes an abstract concept and not everyone gets it (or wants to). Power is complicated. We are all implicated in it. Here is something a little more concrete. Every semester I assign Sexual Coercion Practices Among Undergraduate Male Recreational Athletes, Intercollegiate Athletes, and Non-Athletes. Male athletes—both intercollegiate and recreational—were more likely to engage in sexually coercive behaviors than non-athletes. It was not because of the mere fact that they are athletes—it is because they had high scores on measurements of rape myth acceptance and traditional gender role attitudes. Those things are reinforced in many sports cultures, but they are not only in sports cultures. When rape myth acceptance and traditional gender roles attitudes were controlled for there was no difference between athletes and non-athletes in terms of engagement in sexual coercion. 

In other words: 1. Culture matters and, 2. We learn these things in our social institutions. Entertainment (and sports, and law, and education, and religion) is a social institution through which cultural norms are transferred. Movies do that. Books. Television. And songs.

So listen to the song—or don’t. Listen to the She and Him version in which the “roles are reversed” and call that equality (it’s not #becausepatriarchy). But we cannot dismiss the critique just because it tempers our enjoyment. Our cultural products matter. Our continued use of them matters. 

More than sports bras

Almost everyone heard last week about the ban on sports bras for the Rowan University's women's cross country team. There was near universal outrage about the prohibition; discussions about the double standards female athletes face, the sexualization of female athletes, and the privileges of male football players.

All true and important things to discuss. It perhaps reminded some people of the moment at the 2018 US Open when French player Alize Cornet received a warning for taking the shirt she had put on backwards off and quickly switching it, thus "exposing" her sports bra. And, of course, we could just utter the name, Brandi Chastain, and well...you get it.

There is actually more to this story though: the Title IX implications.

First, the women were running in their own gear because they don't get practice uniforms. They also do not have a locker room. These might not be violations. One would have to go to Rowan (or perhaps nicely ask the director of athletics for the information?!) to see if there are equal numbers of men and women who are not receiving these amenities.

But the second issue is the big one. The women's team was relocated from their track--that surrounds a field where the football team practices--to a local high school track. They were removed from campus because they were distracting. And they have not been moved back!! Yes, they are now allowed to wear sports bras, but they have been kicked off campus by way of a rule that says two teams cannot use one facility at the same time. Again--we can go with speculation and say it would be ok--if other male athletes have been similarly displaced. However, the more pertinent fact is that the football team has another practice facility that they can use. (Also--do 100+ female athletes at Rowan have access to more than one practice facility??)

A friend of mine, in commenting on this story noted how the banning of sports bras because male football players were "distracted" is an example of men reasserting power that they never really lost. The quality of treatment the women's cross country receives is a perfect example of all the power that remains in the hands of men's sports.

OCR Proposes Draft Regulations

Today OCR announced the long-awaited draft revisions to its Title IX implementing regulations (see also summary, here, and press release, here). As expected, the agency is proposing to deregulate education institutions' response to sexual harassment (which includes sexual misconduct like assault).  Two key features of the proposed regulations will roll back the government's oversight of educational institutions response to sexual harassment: first, the definition of sexual harassment that the agency is proposing, which requires that it be "severe, pervasive and objectively offensive " instead of "severe or pervasive, and objectively offensive."  To be fair, the Supreme Court in Davis omitted the crucial "or" in its recitation of the standard.  However, the Court's application of the standard made clear that harassment could be offensive based on its pervasiveness alone. Moreover, the Court in Davis was applying the standard for sexual harassment that had been developed in judicial interpretations of Title VII, where the disjunctive relationship between the two concepts was already settled law.

Another key deregulatory feature is the proposed regulation's inclusion of a deliberate indifference standard, promising not to penalize an institution unless its response is "clearly unreasonable." This is a highly permissive standard that the Supreme Court developed for an altogether different purpose than regulatory oversight. Instead, the Court imported the DI standard only in cases where plaintiffs are suing educational institutions for violations of Title IX and seeking money damages. Title IX is a Spending Clause statute, so a situation tantamount to intentional discrimination is necessary to justify forcing institutions to make payment to plaintiffs, who are effectively third parties to the Title IX "contract" (federal funding in exchange for adherence to a nondiscrimination mandate) between schools and the government. OCR is wrong to say that the Court's rationale for the DI standard is persuasive in the context of regulatory oversight, since the Court was clearly distinguishing judicial and regulatory enforcement when it adopted the DI standard for Title IX cases asserting a private right of action for money damages.  

Also, as predicted, the proposed regulations contain a number of requirements that the institutions incorporate respondent-friendly features into their grievance proceedings. These due process requirements--for example, a presumption of innocence, a right to cross-examine the reporting party at a live hearing, and the possibility that clear-and-convincing standard of evidence be used--are departures from the prior administration's requirement of equitable procedures. The prior administration's OCR and all of its predecessors have refrained from micromanaging an institution's adherence to due process because the Department of Education does not have authority to enforce the due process clause, it has the authority to enforce Title IX. Title IX extends to an institution's response to sexual harassment because sexual harassment is discrimination that violates the statute. Beyond ensuring that the university's minimal response is sufficient to address the underlying violation, it has no authority to require certain procedural safeguards, beyond requiring schools to not to deny procedural safeguards to certain respondents because of their sex.   

The last issue I want to point out here is OCR's proposed deregulation of the religious exemption.  Currently, OCR requires institutions whose religious tenets conflict with an obligation under Title IX to notify the agency of its claimed exemption, but the proposed regulations remove this obligation. The agency argues that the registration requirement is not necessary because the First Amendment is self-executing.  But the is no inherent First Amendment right to take federal money and use it to discriminate on the basis of sex, other than discrimination that falls within the so-called ministerial exemption.  But the religious conflicts institutions seek Title IX exemptions for are more than just permission to discriminate against women who are or are seeking to become ministers, they apply to issues like reproductive freedom and LGBT civil rights, that have nothing to do with the hiring and training of ministers.  Not only is this proposed deregulation constitutionally unnecessary, it is also harmful. Without a mechanism to keep track of exemptions, prospective students and employees have no way to know if their civil rights will be protected at a given institution.  They can be completely blindsided by the lack of legal recourse against an institution that discriminates against them in a way that would be prohibited of a secular institution.  

What will happen next is a 60-day comment period (not 60 days from today, but 60 days from whenever the draft regulations are officially published in the Federal Register, which would presumably be any day).  The agency will review the comments and finalize the rule in a manner that should take those comments into account.  Then the agency will likely have to defend the rule in court, fending off challenges that it is arbitrary and capricious in light of comments on the record, and that it goes beyond the agency's authority to enforce Title IX.

Two Recent Summary Judgment Decisions in Disciplined-Student Cases

When a university is sued by a student who has been disciplined for sexual misconduct, it will typically file a motion to dismiss, arguing that the allegations in the plaintiff's complaint -- even if true -- are not legally sufficient to sustain a claim under Title IX or whatever source of law the plaintiff is alleging to have been violated. If the university wins on this early-stage motion, the case goes away before it ever really gets off the ground. But if the university's motion does not succeed, the plaintiff has the opportunity to take discovery: to gather evidence that it will use to support the allegations in the complaint when the case gets to trial. This includes taking depositions of university officials and requesting documents from them as well. At the close of discovery, the university can again seek to have the case thrown out -- this time, on a motion for summary judgment -- but the discovery process itself can be enough of a hassle that universities will chose to settle before the case gets this far.  That is why the volume of decisions on motions to dismiss is so much higher than decisions on motions for summary judgment.  When summary judgment decisions come out, this blogger takes notice!  Here are two recent ones: one where the university loses, and one where the uni
university wins.

Rossley v. Drake University (university loses). Drake University in Iowa moved for summary judgment to end litigation over a former student's claim that the university violated Title IX when it expelled him for sexual misconduct. The district court granted summary judgment on the plaintiff's erroneous outcome claim, rejecting all of plaintiff's arguments that university officers were biased against him because of his sex. The mere fact that the university found against him, a male, is not evidence of gender bias. Though some courts have said that a disciplinary decision that goes against the weight of the evidence can be a plausible basis for an allegation of gender bias, summary judgment is where the plaintiff must stop alleging and start proving. The court also rejected the notion that a university's use of "victim-centered" or "trauma-informed" process is per se gender biased, when such university uses gender neutral language in its policies. Additionally, the court rejected the idea that the 2011 Dear Colleague Letter served as evidence of gender bias, since there is no evidence that the letter motivated university officials to react in ways that were biased against male students.

However, the court denied Drake's motion for summary judgment on the plaintiff's Title IX claim based on selective enforcement.  In this case, the plaintiff alleged that the university deployed its investigatory and disciplinary process in response to the complainant's allegations against him, they failed to the same in response to his allegations against her. The court affirmed that if the plaintiff and his accuser were similarly situated in their respective allegations, than the different treatment they received would violate Title IX. However, there are disputed facts about whether the plaintiff and the accuser were similarly situated, thus precluding a summary judgment decision and necessitating fact-finding by the jury. He did not file a formal complaint against her, which could explain why they didn't take his allegations seriously, except that he alleges university officials dissuaded him from filing a complaint. To get to the bottom of these disputed facts, the jury needs to hear the relevant testimony and decide for itself whether the university treated his allegations less seriously than hers despite their material similarity.

Ayala v. Butler University.  Butler University, on the other hand, won summary judgment of Title IX (and other) claims filed by a student challenging his expulsion for sexual misconduct. Though the male plaintiff argued that the university's process was tainted by gender bias, the court found nothing in evidence that could convince a juror of that. The investigator's "persistent questions... about verbal consent" at most suggest bias towards victims, not bias towards women or against men. And evidence that Butler treated a male respondent in another case with a lesser sanction doesn't suggest any kind of pattern of treating male respondents differently because of their sex. The court easily dismissed this plaintiff's case against Butler.

HHS Leading Charge to Narrowly Define Sex In Disregard of Transgender Identities

According to an internal administration memorandum obtained and reported on by the New York Times, the Department of Health and Human Service's Office for Civil Rights is working on a proposed rule that would narrowly define sex for purposes of Title IX. Under the memo's proposed definition, sex means "a person’s status as male or female based on immutable biological traits identifiable by or before birth.” And, “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

The apparent goal of such a definition is to limit the protection Title IX affords to transgender students, particularly in facilities like bathrooms and locker rooms. HHS's effort is responsive to the recent wave of judicial decisions that have found in favor of transgender students asserting their civil rights in that context. However, I think it would still be possible to successfully challenge transgender discrimination in the courts, even if this proposed definition becomes part of HHS and other agencies' Title IX regulations -- for two reasons. First, many transgender students who have succeeded in the courts have won on equal protection grounds as well as Title IX, and the administration's definitions under Title IX or other statutory law cannot alter the Constitution or the courts' interpretation of it. Second, defining "sex" in a narrow and biological manner does not necessary foreclose a judicial interpretation of "sex discrimination" that covers discrimination against a student because they are trans. The way some courts view it, trans discrimination is sex discrimination because it is motivated by the fact that one's biological or birth-assigned sex is not consistent with one's gender identity and expression. A regulatory definition of sex that is limited to biological and birth assigned traits does not necessarily undermine this view.

One other point: if you are wondering what HHS has to do with Title IX, yes, it is unusual for that agency to step out ahead of the Department of Education on Title IX policy, given ED's primary responsibility for administering Title IX. While every agency that administers a program that provides federal funding to education institutions is responsible for ensuring that it is not subsidizing sex discrimination with taxpayer dollars, they typically do so by taking the lead from the Department of Education and adopting its regulations as their own. ED currently does not have rule or policy that defines sex, having withdrawn the previous administration's pro-transgender policy earlier in this president's administration. ED seems to have its hands full dealing with the sexual misconduct rules, and/or lacks the political motivation to put transgender rights on the top of its agenda. HHS on the other hand, whose Office for Civil Rights is lead by a known opponent of LGBT rights, has been consistently targeting transgender rights for the duration of this administration -- such as by scaling back nondiscrimination protections under 1557, and by promulgating rules that would let health care providers opt out of providing care to transgender patients when they have a religious objection to doing so. In conclusion, the big questions in light of this news are: to what extent will HHS's anti-trans agenda be permitted to infect the entire administration, and will the administration's efforts undermine the effort to secure transgender rights through the federal courts?  

Eastern Michigan Must Reinstate Women's Teams

A federal district court in Michigan has issued an injunction against Eastern Michigan University that will prevent it from going forward with its plans to cut women's softball and tennis teams.  The university had announced plans last year to cut those teams, along with two men's teams, wresting and swimming and diving.  However, as the court correctly determined, cutting the same number of men's and women's teams is not gender equity when men have disproportionately more athletic opportunities to begin with, and continue to have a greater share of opportunities once the cuts have taken place.

The undergraduate population at EMU is about 60% female, yet the distribution of athletic opportunities favors men, 56:44 percent. Accordingly, EMU did not try to claim compliance under the proportionality prong. Nor did it argue that it complied under the third test that calls for the absence of unmet interests and abilities among members of the underrepresented sex -- a decision the court validated by pointing out that EMU's elimination of women's programs creates the very unmet interest the third compliance prong requires to have been satisfied.

Instead, EMU argued that the average number of athletic opportunities over the last five years was greater than the average number over the five year period before that, thus satisfying compliance under the second compliance prong, which calls for "history and continuing practice" of program expansion for the underrepresented sex.  Of course, the court saw through the this arbitrary comparison of averaged data, which only served to mask the fluctuation up and down of the number of female athletic opportunities. This compliance prong calls for steady growth, which EMU's numbers did not show. In addition, EMU's most recent addition of a women's team was rowing in 2000 - hardly evidence of continuing practice. Though EMU also tried to claim credit for increases to female athletic opportunities under its roster management plan -- i.e, expanding the rosters of its existing women's teams --  the court rejected this as well because EMU could not show that such increases were "responsive to the developing interests of the underrepresented sex" as this compliance prong requires. Upon concluding that the plaintiffs had demonstrated likely success on the merits as well as the other factors consider when deciding on a preliminary injunction, the court ordered that the university must reinstate the eliminated teams.

EMU's argument about compliance under the second prong was so astonishingly weak in my opinion, that the outcome here was hardly surprising. The court's thorough analysis, however, is helpful to addressing misconceptions about the second compliance prong. In addition, the court's order to reinstate eliminated teams should provide a cautionary tale for any college athletic program that thinks cutting an equal number of men's and women's teams is equitable when women are already seriously underrepresented.

Decision: Mayerova v. Eastern Michigan Univ., No. 2:18-cv-11909 (E.D. Mich. Sept. 27, 2018).

OCR Investigates Complaint Against School's Transgender Bathroom Poicy

The Department of Education's Office for Civil Rights has opened an investigation into the school district in Decatur, Georgia, based on allegations that the district's transgender-inclusive bathroom policy lead to the sexual assault of five-year-old cisgender girl in the girl's bathroom at one of the district's elementary schools. The complaint also alleges that it compromises the privacy of girls by exposing them to "the problem of Peeping Toms."

Here is more detail about the alleged assault, as described in the the complaint:

[I]n November 2017, a boy known to the school administration to identify as “gender fluid” (“the Assailant”) was permitted—pursuant to and as a direct result of the Policy—to enter the girls’ room while [Victim] was there. While the two young children were in the girls’ restroom alone together, the Assailant confronted [Victim], pushed her against a wall, and forcibly touched her genitals despite her protests, causing her both pain and fear. This sexual assault (“the Assault”), which was a foreseeable result of the Policy and would not have happened but for the Policy, discriminated against [Victim] based on her sex and created a hostile and intimidating environment in which [Victim] must fear repeated incidents of sexual harassment or assault in the future.

According to the Washington Post, "City Schools of Decatur officials have contested the version of events laid out in the complaint," including by "contradicting claims that the classmate the girl identified is gender fluid." It also noted that "a social service agency investigation determined the girl's allegations were 'unfounded.'"

This is an investigation we will watch closely and with concern. The Department of Education repealed the previous administration's guidance that requires schools to accommodate transgender students according to their gender identities in bathrooms and locker rooms, but it has not prohibited schools from doing so.  If the agency finds that the school has violated Title IX, it could signal the agency's position that inclusive bathroom policies violate Title IX. It would also create a conflict between the agency and judicial interpretations of Title IX which have in recent years consistently supported transgender students rights in bathrooms, and which have rejected arguments on behalf of cisgender girls that the inclusion of transgender girls somehow violates their rights.

Refections on a terrible, horrible, no-good, very bad (couple of) week(s)

Anyone who has been near the internet in the past two weeks will have seen stories and memes and other writings about the messages the Kavanaugh hearings have sent to women--especially young women and girls--who have been or may be victims of sexual assault. The term "chilling effect" has been ubiquitous and this, the second week (depending on how one is counting) that effect arguably grew with the backlash--the sadly inevitable backlash--against Dr. Christine Blasey Ford's allegations against the nominee. Her testimony last week, largely received with either muted and eyes-cast-down silence or head-nodding sympathy, was re-interpreted this week seemingly led by those with the anger-scrunched faces from which emanated shouts of ire.

The new narrative: men are in danger because these women can just say anything they want. One, the men in danger are white men. No one said that out loud and some will protest that categorization with "what about Clarence Thomas?" What this does is fail to recognize the actual dangers Black men face now and have faced historically and the systems of discrimination that have been reified because of these fears. [This is an especially good moment to watch or re-watch 13th.] Two, the narrative is not new. This is what we have been seeing in the work against campus sexual assault or rather the work to address acts of sexual assault on college campuses. This backlash, framed as due process rights for accused men, has been building for several years. [On the recommended reading list: this article about due process rhetoric.] It is reflected in the new sexual assault and harassment guidelines proposed by the Department of Education. Finally, the chilling effect is not new. What also emerged in the past few weeks are stories about why people did not report. They are numerous and they indicate that one, under reporting is real and that we need to pay attention to what the statistics about assaults do not say; and two, that the chilling effect of various social institutions (all the social institutions??) has been so deep that it does not require a catch phrase--we just called it reality.

In this climate, we are doing what we can do. I am not speaking for Erin, but I know we have both been using our respective knowledges and positions to interrupt the narratives and share information when and where we can. For me, this has been especially helpful in getting through these weeks, when I really have not known how to feel. In some ways, this week has felt like many others when I have been steeped in stories about sexual assault and injustices and impediments. Several weeks ago I left an institutional meeting in which I was the only one to speak up about a very problematic portrayal of how to handle campus sexual assault. And I wondered how much longer I could do this work; if I was always going to be outsider; if anyone was on my side. Subsequent conversations revealed that I was not an outlier in my thoughts and that my contributions to the discussion were actually quite effective in ways I had not been able to witness at the time. The speaking up matters--even when we cannot see the results; even when the results are not what we wanted.

It was a brutal week on a much larger scale. But it revealed that people will step up and say things--often really hard things. That people will rally. This gives me hope that, for example, schools will be compelled to retain the policies about sexual assault that were the result of the Obama-era guidelines. But things will continue to be hard. I do not expect a good outcome. This means we have to be prepared for more brutality ahead.

Because I see what is coming, I want to note all the good things I saw and experienced this week and hold them alongside all the pain and anguish; to share gratitude. Thank you to friend circles and all the checking in everyone was doing. Thank you to my colleagues and educator friends who put great care and thought into their lessons and interactions with students this week. I saw you and appreciate you. Thank you to all the colleagues I do not know who did the same. I read amazing stories this week of classroom activities related to the hearings. Thank you to all the women of color at the forefront of the activism on this issue with a special thank you to Ana Maria Archila who was one of two women who confronted Senator Jeff Flake in an elevator and made him listen to their stories. There was a lot of talking this week and--ironically--not a lot of hearing. I am thankful to all of those who know how to and value listening.

Federal Funding to Chicago Public Schools is Suspended

The Chicago Tribune reported last week that the Department of Education is suspending some funding to the Chicago Public Schools because of a record of "serious and pervasive violations under Title IX" and its "slow and incomplete responses to federal investigators who are looking into two student complaints filed in recent year."

This is notable departure from the Department's standard practice of using federal funding as leverage to get school districts and other educational institutions to correct their Title IX problems on a going-forward basis, without ever having to actually make good on the threat to terminate funding. 

Title IX generally contemplates an all-or-nothing approach to federal funding; recipients that violate the law are subject to termination, not just to some funding but all of it. For this reason, I've sometimes described this penalty as a hammer that is too big to use. Yet, that does not seem to be what is happening in the CPS case. If one of the country's largest school districts had lost all of its federal funding over Title IX violations, we'd have expected more (a) process -- since the Title IX regulations provide for a series of procedural steps, including a hearing and possibly appeal before that can happen -- and (b) fanfare, because the drastic step of terminating all federal funding over violations of Title IX has never occurred in the past.

Here, it seems that the agency has creatively isolated only federal funding from a particular grant program to qualified magnet schools (presumably on the grounds, detailed in the regulations of the Magnet Schools Assistant Program, that the school districts applying for the grant attest that they not engage in sex and other forms of discrimination) to open up some more options for enforcement besides all and nothing.  By focusing on only one grant program, the agency was (apparently) able to suspend millions of dollars by simply sending a letter -- sidestepping the hearing and other procedural steps necessary to terminate all funding. This has both an upside and a downside, so far as I can see.  The upside is that because of the consequences meted out to CPS, CPS and other school districts might do a better job in the future addressing Title IX issues proactively rather that waiting for the Department of Education's OCR to show up and investigate. On the other hand, this administration is not a fan of public schools, so I would be curious about what procedural safeguards CPS had to ensure that the decision to suspend this funding was fair. It is also unclear what opportunity CPS might have to restore the funding that was lost. (That the article used the words "withheld" and "suspended" rather than "terminated" suggesting the possibility that this is a temporary or conditional decision.)  

Vast Majority of Public Comments Supported 2011 DCL, Research Shows

Interesting and helpful research by a Title IX expert and law professor Nancy Chi Cantalupo and colleagues, posted recently on SSRN, documents overwhelming public support for the Obama Administration's 2011 Dear Colleague Letter, which the current administration has repealed and is in the process of replacing.  The researchers examining public comments the Department of Education received in 2017 in response to a call for public comments on Executive Order 13777 (establishing a federal policy to “alleviate unnecessary regulatory burdens”).  Of the comments received, 12,000 specifically addressed Title IX. The researchers' review and coding of those comments generated findings like these:

● 99 percent (n: 11,893) of the commenters filed a comment in support of Title IX, with 97 percent of Title IX supporters (n: 11,528) specifically urging ED to uphold the 2011 Dear Colleague Letter: Sexual Violence (2011 DCL). Only one percent (n: 137) filed comments opposing Title IX, of which 90 percent (n: 123) specifically urged that ED rescind the 2011 DCL.

● Even accounting for the fact that many pro-DCL commenters used the same core language, the vast majority of *unique* comments (92%) still supported Title IX.

● Nearly all of the commenters who wrote in support of the DCL and Title IX identified themselves by name. In contrast, of the 137 comments that opposed Title IX, 44.5 percent (n: 61) were posted anonymously.

● Besides comments from individuals, the agency also received comments from two non-profit organizations that had 38,713 and 10,190 signatories respectively, which bring the total expressions of support for Title IX and the DCL to 60,796, in marked contrast to the 137 comments in opposition.

To be sure, comment periods are not a pubic referendum. Agencies are not required to tally the number of comments and adopt the position of the majority.  But agencies are required to express a cogent rationale for their policy choices. If an agency states that it is reversing an existing policy because that policy is unworkable and unpopular, as Secretary DeVos has said, and that statement is defied by an overwhelming record of evidence to the contrary, that agency might not be able to successfully defend that reversal in court if it is challenged.

Baylor is irredeemable

This week we learned that Baylor planted a mole inside student groups comprised of sexual assault survivors in order to both shape the PR/recovery efforts and to encourage the women to shift their paradigms and language about what happened to them when the school failed (a word they were encouraged to abandon) to investigate and address their claims of sexual assault.

Also this week, Dr. Roxanne Gay published a piece of commentary in The New York Times about the return to the public sphere of celebrity men who had been accused of sexual misconduct.

And, finally, as Erin wrote about, there are the Department of Education's proposed rule changes to the sexual assault guidelines for schools.

It was a tough week. These three events, on their own, are each frustrating, maddening, demoralizing. I will focus mostly on Baylor in this post, but what I took from this week, from these things--in the aggregate--is that they are a clear demonstration of how little we care about victims and how little attention is given to prevention.

As I write this post, Gay's latest book, an anthology of stories about rape and sexual assault called Not That Bad: Dispatches from Rape Culture sits on my end table where it has been for weeks. I have not had the emotional fortitude to pick it up. I certainly do not have it this week. But I know I must begin to read these stories--as everyone who has the ability to should. Because as the Baylor news and the surprise appearance of Louis C.K. at the Comedy Store in NYC this week, and the rumors of Matt Lauer's return to public life reveal--victims' stories are being erased, manipulated, and conveniently forgotten.

Baylor engaged in manipulation--horribly offensive and immoral behavior. (Is it even necessary to say "especially for a religiously affiliated school that implicitly claims a moral high ground"?)
Baylor, of course, denies the characterization of the Director of Student Activities, Matt Burchett as a mole saying that students were free to turn down his suggestions and that he was just keeping administration apprised of what was happening among the student body; in other words--this is his job. There was no respect for confidentiality, and there were no good intentions in regard to helping these students.

The utter violation of trust--at multiple turns--is one of the things I found so astounding in this story. These students already did not feel supported. They went to administrators to share their stories and nothing was done. Some were told that the person they reported as their assailant already had reports against him. There are so many accounts, from victims across the country, that include stories about being re-traumatized. Some victims have shared that the greatest trauma. the greatest violation, was what happened after their assaults.

It is time to shift the thinking about what constitutes "action" when we are talking about and reporting on sexual assault complaints on college campuses. Let's stop saying that schools did nothing in response to reports of sexual assault and harassment on their campuses. Because ignoring a complaint is doing something. Because telling a student that her reported rapist has other complaints against him and yet he is still on the football team, is doing something. It is denying a student action, a version of safety, access to education. It is breaking the law. It is doing harm. There is nothing passive about these actions. The deliberateness of Baylor's response not to the actual assaults but to the negative publicity the school and administrators received when the culture and patterns of sexual violence were revealed reflect this.

One issue with the proposed new regulations is that schools' active inactions, what Erin referred to as the "insufficient response," will not necessarily result in liability. (It was pretty clear that Baylor responded with deliberate indifference, so the proposals would not necessarily leave them unaccountable.)

I want to point out that we are not even talking about stopping or curbing rape, assault, and harassment--not really. We are talking about how effectively schools are responding to these incidents. The discussions about climates of sexual violence are side conversations at this point. The focus of activism and certainly of lawsuits and complaints is about how schools address reported rapes--not about how to stop them from happening in the first place. And while these things might, in some ways, be related, those connections are not explicit.

What is a sufficient/an effective/a just response, is at issue in the Baylor case and also a topic in Gay's column.  She writes about the #metoo movement and men in the public sphere, but her work is applicable to what is happening on college campuses and what could/will happen if the proposed regulations are put into effect (after the public comment period). I excerpted the following from Gay's piece that I found particularly relevant:

And this is what is so difficult about justice and sexual violence — the repercussions of the crime can last a lifetime. Satisfying justice may not be possible, but we can certainly do better given that all too often, victims of sexual harassment and violence receive no justice at all. 

We spend so little energy thinking about justice for victims and so much energy thinking about the men who perpetrate sexual harassment and violence. We worry about what will become of them in the wake of their mistakes. We don’t worry as much about those who have suffered at their hands. It is easier, for far too many people, to empathize with predators than it is to empathize with prey.

We see this empathy in the support for the backlash movement in which the accused are suing their institutions, claiming versions of reverse discrimination and sexism. We see it in the proposed rule changes and the Secretary of Education's public comments about campus sexual assault and a "fair" process for everyone. We see it in the support for fired football coach Art Briles.

Less publicized is the vitriol aimed at the women who file reports and complaints. We do not keep statistics about how many of them leave their institutions. How many vile things are tweeted or posted on Facebook and other social media platforms about them.

And while there are numbers about how many schools are facing complaints, the majority of the stories behind these complaints are far less public than the ones at Baylor, which--like Louis C.K.--continues to press on largely unscathed and offering little in the way of apologies.

Proposed New Sexual Misconduct Rule Imports Deliberate Indifference Standard

The New York Times is reporting that it has obtained a copy of its proposed rule addressing educational institutions obligations under Title IX to respond to sexual misconduct, which the Department of Education is planning to release for public comment.

Though the proposed rule contains many departures from the guidelines presented by the previous administration, right off the bat it is worth noting that at least it appears to retain the basic idea that sexual misconduct, even when it is a crime, is still a legitimate basis for investigation and discipline by colleges and universities. There are no wild proposals to outsource all campus investigations to police and prohibit universities from being involved.

Reportedly, however, the proposed rule makes it easier for institutions to avoid Title IX liability for insufficient response to sexual misconduct by essentially importing to the context of government enforcement the very narrow that the courts use for finding institutions liable for money damages. There are three components of that judicial standard that are reflected in the proposed rule: (1) it uses a narrow definition of sexual harassment*, and it only imposes liability when (2) a campus official with authority to address the misconduct have actual notice of the harassment, and (3) that the campus responds to that notice with deliberate indifference.

This proposed adoption of the judicial standard is misguided because the reasons that standard is so narrow absolutely do not apply to government enforcement of Title IX.  When the Supreme Court developed the standard for cases in which students sought money damages against an institution for its violations of Title IX, it explained that it had to be a narrow one because Title IX is primarily a contract between an institution and the government: the institution gets federal funding, but agrees to follow the government's rules about sex discrimination in exchange. Students are, essentially, third party beneficiaries to this contract. It would be unfair, said the Supreme Court, to blindside institutions with the possibility of paying large damages awards to their students, as a consequence of accepting these obligations owed to the government. As such, the Court said, we are only going to impose that kind of liability in a narrow set of circumstances: limited examples of sexual harassment, that the university essentially intended to ignore through its deliberate indifference to known instances or threats of such harassment.

Unlike judicial enforcement of plaintiff's claims for money damages, government enforcement does not risk blindsiding a university. It is always prospective in nature. The enforcement process, sometimes frustratingly so, gives universities ample opportunity to conform their policies and practices to OCR's requirements before they are ever faced with a financial consequence (loss of federal funding). In fact, no university has ever been subjected to that penalty. Universities always have an opportunity to decide, if they don't like the way the government is enforcing the law, to opt out of the contract in the first place, and suffer no penalty.  Consequently, as long as the agency's interpretation stays within the outer limits of Title IX, it can impose more specific requirements about what an institution needs to do to address sexual misconduct, and what misconduct triggers that response. There is no need to have an overly narrow definition of harassment, or the high burden of proving actual notice and deliberate indifference.

The proposed rule is maddening because it imports the narrow standard of judicial liability into a context that it was not designed to apply. And the result is that it would let universities get away with doing far too little to address a problem that impairs the civil rights of its students. The deliberate indifference standard as it applies in the courts lets institutions off the hook for doing almost nothing in response to incidents and threats of sexual harassment (and sometimes courts applying the deliberate indifference standard absolved institutions for doing *exactly* nothing!).

There are other specific provisions of the proposed rule that also deserve attention. It would permit institutions to use the clear and convincing standard. It would permit them to use informal mediation in serious cases like rape. It would permit them to ignore sexual misconduct that takes place in off-campus student housing. At the same time, it subjects them to liability for ignoring the rights of accused students, which, given that complainants are only protected by the requirement to avoid deliberate indifference, seriously tips the scales in accused students' favor.

When the proposal is official released, there will be an opportunity for public comment, which theoretically could persuade the agency to modify the rule before it becomes final. So it's not a done deal. Major changes, however, would be unlikely.

*Specifically, the proposed would require that sexual harassment be "so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity." In contrast, the previous administration's broader definition was "unwelcome conduct of a sexual nature," that includes "unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature."

Fourth Circuit Rules that University's Preliminary Inquiry into Harssment Complaint Does Not Violate Free Speech

Though not precisely a Title IX decision in the usual type for this blog, I was interested in this decision I read recently affirming a university's preliminary investigation of harassment charges stemming from an intentionally provocative student-organized campus event.

The event in question was orchestrated by a student at the University of South Carolina on behalf of student groups seeking to protest their perception of censorship on campus and beyond. The student sought and received the university's permission to hold the event, which showcased symbols like the swastika and posters of racial slurs. University officials also defended the event to those who complained and argued that it was inappropriate. Later, the university received several complaints that the event constituted discrimination and harassment because of the symbols and slurs that it promoted, and because of alleged hostile behavior the encountered there.  University officials called the organizing student, who was named in the complaint, in for a 30-45 minute meeting to discuss the complaints.  A few weeks later, the university informed the student that it had concluded it had no basis for going forward with an investigation.

Nevertheless the student sued the university alleging violation of free speech. Yes, even though the university permitted the event, defended it, and declined to even open a formal investigation of the complaints others made about it, the student alleged that the university's preliminary inquiry into the complaints about the event violated the student's rights under First Amendment. Last week, however, the Fourth Circuit Court of Appeals affirmed the district court's dismissal of this case, rejecting arguments that the preliminary inquiry causes an unconstitutional chilling effect of free speech and is more intervention than necessary to protect the university's interests.

When a university receives a complaint or other information that harassment on the basis of sex, race, or some protected class has occurred, civil rights laws like Title IX require the university to respond in some way. Otherwise, the university could be liable for deliberate indifference. This doesn't mean the university must engage in a disciplinary response every time it receives a complaint. It should, however, do some kind of preliminary investigation to determine if the complaint warrants pursuing. At the very least, this can mean having a conversation with the person named in the complaint to get that person's side of the story, which is what the university did here.

The court's ruling affirms that a preliminary inquiry like the one in this case does not violate the free speech rights of the student against whom the complaint is made. In fact, it protects respondents' rights, since it provides an alternative to a formal investigation in response to every complaint. In my view, the only world in which a university can't even engage in a preliminary inquiry of a harassment complaint is one in which the university can't censored and sanction harassing speech at all (presumably, this is the student's position, since why else would he sue on these facts?).  But as courts have already held, and as this one affirms, there is an outer limit to free speech: harassment that is sufficiently severe and pervasive and disruptive of other students' civil rights in education.    

The student's free speech event at USC apparently did not cross that line, but the university was right to at least follow up with the complaints that said it did.

Decision: Abbott v. Pastides, 2018 WL 3910682 (Aug. 16, 2018).

Florida School Loses Bathroom Discrimination Case to Transgender Student

Yet another court has ruled in favor of a transgender student's right to use the bathroom according to their gender identity. But unlike many of the previous judicial rulings we've blogged about on this topic, which have been in the context of preliminary relief, this court's ruling came after an actual trial. This means that rather than predicting the plaintiff's likely success on the merits, the court in this case had the opportunity to conclude that the plaintiff did in fact succeed on the merits. It awarded the plaintiff, a transgender high school student whose gender identity is male, a permanent injunction that permits him to use the boys' bathroom at Nease High School in Ponte Vedra Beach, Florida, as well as $1000 in damages.

If you've followed other cases like this, the reasoning employed by this court is consistent and familiar. Its Equal Protection analysis considered the school's bathroom usage policy, which was based on student's biological or birth sex, under intermediate scrutiny, a test that requires the school to present an important justification and reasonably tailored means. The school predictably argued that its policy served purposes like privacy and safety, but the court rejected them as logically inconsistent with the policy itself. All students can access privacy by using the stalls or one of several single-user bathrooms in the building. Nor was there any evidence to support the idea that a transgender student's presence in the boy's bathroom posed a safety risk. The plaintiff had used the boys' bathroom for a six-week period before the school banned him, during which time no problems occurred. Nor is there any evidence to suggest that a transgender student is more likely than any other student to threaten the safety of other users. The court also favored the plaintiff's Title IX claim, rejecting the school board's argument that because Title IX and its regulations permit bathroom facilities to be segregated based on "sex" that necessarily means biological sex to the exclusion of considerations of gender identity. Instead, the court concluded that "the meaning of 'sex' in Title IX includes 'gender identity' for purposes of its application to transgender students."

Adams v. Sch. Bd. of St. Johns Cty., Fla., 2018 WL 3583843 (M.D. Fla. July 26, 2018).

Court Denies Motion to Dismiss Lawsuit Challenging SUNY Albany's Termination of Women's Tennis

After SUNY Albany cut its women's tennis team in 2016, several former players, along with the team's coach, Gordon Graham, sued the university alleging discrimination in violation of Title IX. Last week, a federal court in New York denied the university's motion to dismiss Graham's claims that the decision amounted to sex discrimination against him, while also denying the former players' motion for summary judgment in their favor.

In its motion to dismiss Graham's claim, the university argued that terminating the women's tennis team could not in any way be considered sex discrimination against Graham, a male coach. But the court disagreed. While it's true that the university's decision to cut the women's tennis team was not motivated by Graham's sex, it may have been motivated by the sex of the athletes on the team. This act of alleged sex discrimination injured Graham as well, by costing him his job, making it  actionable injury under Title IX, the court reasoned. Graham adequately alleged an act of sex discrimination, and he alleged that the act in question caused him harm.

As for the players' motion, they argued that because in 2017 OCR found SUNY Albany's decision to eliminate women's tennis violated Title IX, there was no issue of fact requiring litigation, permitting the court to rule in their favor early in the litigation process prior to trial or even the taking of discovery. The court disagreed with this argument as well, concluding that the agency's findings could not make the university automatically liable as a matter of law. The university did not challenge the agency's findings, but instead, agreed to resolve in them without the benefit of adjudication, and in an agreement that specifically disclaimed any admission of liability. Thus, the court ruled, the university should at least have the chance to enter evidence that could potentially demonstrate that a disproportionate balance of athletic opportunities nevertheless complies with Title IX. I believe that the former players still have a very strong case, since cutting a viable team is usually strong evidence of unmet interest of the underrepresented sex. But also, it made sense for the court to insist that they make their case based on a record produced during litigation, rather than automatically import the findings of OCR.

Pejovic, v. State Univ. of N.Y. at Albany, 2018 WL 3614169 (N.D.N.Y. July 26, 2018).

Another Court Upholds Transgender Students' Bathroom Rights

Another federal court has ruled that transgender students have a right to use the bathrooms and locker rooms that match their gender identity (for others, see here). The case involved Dallas High School, in Dallas, Oregon, which created an inclusive bathroom policy after one of its transgender students request permission to use the boys' facilities, consistent with his gender identity. But parents of other male students at the school sued, alleging their boys suffered "embarrassment, humiliation, anxiety, intimidation, fear, apprehension and stress produced by using the restroom with students of the opposite sex."

The court rejected the parents' claim that permitting transgender students in the locker room compromised their children's privacy. In addition to lack of precedent to support the idea that the constitution protects a fundamental right not to share restrooms or locker rooms with transgender students, the court noted that such a right, if it existed, is not infringed. Students are not compelled to use multi-user facilities; anyone with a privacy concern is permitted to a private single-user facility. The court also rejected the parent's claim that the school's inclusive policy violated Title IX by creating a hostile environment for their children. Finally, it concluded that the parent's requested relief -- revoking the policy and excluding the transgender boy from the boys' restrooms and locker rooms -- would itself violate Title IX, since this would "punish transgender students for their gender nonconformity and constitute a form of sex stereotyping."

The parents also included the U.S. Department of Education and the U.S. Justice Department as defendants in the case. They alleged that the agencies' joint 2016 guidance document, that interpreted Title IX to require trans-inclusive bathrooms, was improperly promulgated. That guidance has been subsequently revoked, however, so it was easy for the court to dismiss this claim for lack of standing: there is no apparent connection between the procedural violation they allege and the school's decision to implement an inclusive policy.

Decision: Parents for Privacy v. Dallas Sch. Dist. No. 2., 2018 WL 3550267 (D. Or. July 24, 2018). News of the decision was also reported here.

And in related news, the Third Circuit released its decision affirming a lower court's decision in a similar case in Pennsylvania.  The lower court had refused to grant a preliminary injunction that would have prevented the school from accommodating transgender students' use of facilities that match their gender identities, and the appellate court agreed with the court's "well-reasoned" opinion.  That decision is: Doe v Boyertown Area Sch. Dist., 2018 WL 3581456 (3d Cir. July 26, 2018), 

OCR Investigation Reveals "Concerns and Violations" At Washington State University

This month the Department of Education's Office for Civil Rights entered into a compliance agreement with Washington State University to resolve "concerns and violations" that were revealed by the agency's investigation into the university's handling of sexual harassment complaints.

One of the allegations against the university was its systematic failure to promptly respond to complaints as Title IX requires. So the agency reviewed over 900 files of sexual harassment cases the university responded to between 2010 and 2016. 72 of them were sexual assault matters. The average pendency of these matters from the time the complaint was was received by the university to the time of its final decision was 159 days. More than three-quarters of time, it took more than 100 days, and nearly a third were open for 200 days. While expressing concern about the university's systemic pattern of lethargic resolution, it singled out four instances where it was comfortable concluding that the delay (of 125, 139, 177, and 218 days respectively) constituted a violation of Title IX's prompt resolution requirement, owing to the university's insufficient explanation for the delays and the probability that delay contributed to hostile environment for the complainant. This aspect of OCR's findings indicate that while the agency has revoked the prior administration's interpretation of prompt resolution of sexual harassment complaints as 60 day time frame under usual circumstances, the requirement for "promptness" -- albeit more vague now -- is still good law about which OCR remains concerned.  

The agency also expressed "concerns" that the university's policies that govern the disciplinary process for sexual misconduct provide equal rights to the respondent to present evidence and receive information about the proceeding. Specifically, the agency was concerned about procedural requirements under which:

• complainant is solicited for names of potential witnesses, though the policy does not say to do the same for respondent
• complainant is given information that retaliation is prohibited under its policy, but the policy does not say to also give respondent this information
• complainant is given the opportunity to provide input about the appropriate resolution path --i.e., whether the university uses an informal method of resolution instead of the formal process --  but the policy does not say to get input from the respondent.  

I agree that the first two bullet points are aspects of "equitable" procedures as the regulations require. The third one could be problematic depending on what the university does with the input it receives from the respondent. Clearly the selection of formal disciplinary procedures can't be subject to the respondent's consent; that would be inequitable to the complainant.  But such a result is not a necessary consequence of permitting the respondent to give "input" about this choice.

The university has agreed to address the violations and concerns by amending its policies and improving training. It will also address the resource deficiency that caused or contributed to the promptness violations.  It also agreed to send an apology letter to two of the complainants affected by delay.  (I've ever noticed apology requirements in resolution agreements before, so that struck me as interesting.!)