Friday, July 20, 2018

What Is an Institution's Title IX Responsibility When Assailant's Victim Attends Another School?

Two items on my radar this week both address the question of an institution's legal obligations under Title IX to discipline one of its own students for sexual misconduct directed at a student of another university.

First, a recent decision of the First Circuit Court of Appeals affirmed the dismissal of a former Providence College student's case against Brown University, in which she challenged the sufficiency of Brown's response to her report of having been sexually assaulted by three Brown football players. Title IX requires plaintiffs who assert a claim for money damages on the deliberate indifference theory to prove “substantial interference with her access to educational opportunities or benefits.” The plaintiff argued that she satisfied this requirement because she withdrew from Providence College as a result of the sexual assault and Brown's allegedly insufficient response. But, the appellate court concluded that the fact she was not a student at Brown disqualified her from satisfying this requirement. The court read the Supreme Court's prior Title IX caselaw to require that the plaintiff must suffer sex discrimination "while participating, or at least attempting to participate, in the funding recipient's education program or activity." This nexus is "logical" according to the court because the "'discrimination' that Title IX prohibits is not the acts of sexual assault or sexual harassment in and of themselves, but rather the differential treatment by a funding recipient of persons of a particular sex who are taking part or trying to take part in its educational program or activity but are suffering acts of sexual harassment or assault that undermine their educational experience."  Doe v. Brown Univ., 2018 WL 3454469 (1st Cir. July 18, 2018)

It is not surprising that a court would limit a university's liability to a student seeking to impose liability for money damages. Title IX's status as a Spending Clause statute means that a university's primary compliance obligation is owed to the government, in exchange for federal funding. Students who are harmed as a result of an institution's Title IX violations are considered third-party beneficiaries of this arrangement. According to the Supreme Court, universities aren't necessarily on notice of the fact that taking government money makes them liable for damages to third parties, so it has limited such liability to situations in which the university intended the harm (or its deemed equivalent, deliberate indifference). For this reason, there are tougher liability standards in court cases than in situations where the government is enforcing Title IX.  In this spirit, I can understand why a court would not want to make a university financially liable for any sexual misconduct committed by its student anywhere in the world that happens to affect the victim's education. But, just because a university isn't liable financially to another university's student, doesn't mean that the government can't impose that requirement as part of its enforcement authority. 

And maybe, the government is considering doing just that?  According to this story in Inside Higher Education, OCR is investigating a case about a student from University of Tennessee-Chattanooga, who was sexually assaulted, off campus, by a student from University of Alabama-Birmingham. The victim filed a complaint with the assailant's institution, which found that the assailant had twice had nonconsensual sex with the victim. But when the assailant appealed, his two-year suspension was reduced to one year. When the victim appealed that decision, UAB reversed the original decision in its entirety, on grounds that it lacked jurisdiction to punish a student for off-campus misconduct that did not create adverse affects or a hostile environment for someone on campus.The fact that OCR is investigating this matter suggests that it thinks its at least plausible that the victim's complaint adequately alleges a Title IX violation by UAB. If that is indeed how OCR resolves the matter, universities might have a Title IX responsibility to adequately discipline their own students for sexual harassment and sexual misconduct against other students -- though its failure to do so could only be addressed by government enforcement rather than in the courts (at least in jurisdictions that follow the First Circuit's approach).

Two other points that are worth mentioning about these kinds of cases: there is little doubt that a university *could,* if it wanted to, have a code of conduct that prohibits its students from engaging in misconduct off campus that results in harm to other people who are not students of the university. The cases in this post are addressing whether a university *must* take jurisdiction over the subset of misconduct that falls under Title IX, sexual harassment and sexual assault.  The second point that's clear is that the victim's student's university has a Title IX obligation to respond to the threat of sexual misconduct that is posed to its own student, even if the source of that threat is another university's student. However, a university does not have power to discipline another university's student, so often the best it can do is bar the offending student from campus (which is apparently what UTC did).   

Tuesday, July 17, 2018

Baylor settles another case (and more)

One by one, Baylor is settling its Title IX lawsuits. Last week, the lawsuit brought by a former student (she withdrew after the college failed to respond properly to her report of gang rape) was settled with the terms remaining confidential.

[There is also news, quiet news, that the school has made agreements with three other students who did not filed lawsuits.]

This case, as I noted above, involved up to 8 football players who are alleged to have drugged and raped the victim, a female volleyball player. The victim's mother reported the rape to an assistant football coach and gave him names. After conducting his own investigation--and not reporting it to the proper people on campus (though as we know from previous lawsuits those people did not do anything anyway even when they received reports), the coach concluded that the sex acts, which the players reported as "fooling around," fell into a sexual gray area and did not pursue further action; and did not follow through with the victim.

This was a pretty clear cut case in terms of Baylor's failure to follow proper procedures. And yet...

Still it adds to the evidence about the culture of sexual violence on campus; one that, I argue, has not been sufficiently addressed even with the firing of head coach Art Briles, resignation of athletic director Ian McCaw* (who is now the AD at Liberty University), and demotion of president Kenneth Starr.

The school continues to have a revolving door of Title IX administrators. It refuses to admit it has a problem with sexual violence. It refuses to address the issue of athlete sexual violence, which is the result of lack of oversight of athletes and the athletics program. It has demonstrated that is values its male athletes over its female athletes. It has its most notable female, basketball coach Kim Mulkey, defending the school and disparaging those who spoke out against the sexual violence. But in its statement about the settlement, the university contends that the new leadership is committed to change.

And now we have the commissioner of the Big 12 contributing to the culture of denial by dancing around the issue at media days this week. 

Still awaiting Baylor: two more lawsuits against the Baptist university which involved a total of 15 plaintiffs; the results of the NCAA's (very late to the game) investigation; and the conference's "verification"--not an investigation--that BU is implementing the 100+ recommendations from the Pepper Hamilton report. (The university is being denied 25% of the revenues it would earn from being in the Big 12 until the verification process is complete.)


* The more: McCaw has been in the headlines because he was recently subpoenaed in one of the remaining lawsuits. The high and mighty tone is off-putting. He said he resigned--after he was placed on probation in 2016--because he did not want to be part of a cover-up. Except he was already part of a cover-up--because there is no way he did not know what was going on in his football program.

He said the report of findings (2016) in which the football program was deemed responsible for many of the problems of sexual violence was steeped in racism and that the regents were looking for scapegoats.

I do not doubt that there is rampant racism at Baylor, including in its athletics department; because there is rampant racism in intercollegiate sports. I do not doubt--in fact I have written about this already--that the regents are part of the problem. And it is a problem that their role has not been investigated and interrogated.

And though McCaw took some responsibility for his role, this testimony read like a shunned person seeking retribution. If there was such a problem with racism in athletics and the school in general, why wasn't McCaw working to address it? He was not the most powerful person (as he came to realize), but he could taken steps. And if he felt the whole system was so corrupt, why didn't he resign earlier? I am not sure what effect his testimony will have on the lawsuits, but it has invigorated others looking to pass the buck.

Briles's attorneys have jumped on this testimony saying that the school threw the former coach under the proverbial bus. First, he deserved to be fired for reasons too great to even list. Second, if he was surprised that he--a successful white, male DI football coach was expendable, that he could be used as a pawn to mitigate the effects of a huge scandal, then he really is not knowledgeable about the system which created and then ultimately tossed him aside. Because once in a great while even powerful white men in intercollegiate athletics are sacrificed to keep the system going. Neither Briles nor McCraw should be shocked by this; they helped perpetuate it.

Monday, July 02, 2018

Advocates Petition for Correction of 2017 Dear Colleague Letter

Several Title IX advocacy organizations have teamed up to petition the Department of Education to correct several unsupported factual assertions contained in its 2017 Dear Colleague Letter withdrawing the 2011 Dear Colleague Letter. They also argue that the 2017 Dear Colleague Letter,  thus rendered baseless, should be rescinded.  

The advocates' petition relies on federal law called the Information Quality Act which, along with related regulatory guidance, requires that information disseminated by federal agencies be useful, accurate, reliable, and unbiased. The statute does not provide for a private right of action. Instead, the mechanism for enforcement is to seek correction from the agency. 

Specifically, the advocates singled out the following statements in the 2017 Letter for being unsupported by evidence, implausible, and biased.
1.“Many schools [before the Prior Guidance] had traditionally employed a higher clear and convincing evidence standard.”

2.“Many schools had previously followed procedures reserving appeal for accused students.”

3.“As a result [of the Prior Guidance], many schools have established procedures for resolving allegations that lack the most basic elements of fairness and due process.”

4.“As a result [of the Prior Guidance], many schools have established procedures for resolving allegations that ... are overwhelmingly stacked against the accused.”

5. The Prior Guidance “led to the deprivation of rights for many students--both accused students denied fair process and victims denied an adequate resolution of their complaints.”

6.The Prior Guidance “has not succeeded ... in leading institutions to guarantee educational opportunities on the equal basis that Title IX requires.” 
Some of the advocates' objection centered on the use of the vague word "many" -- which, they argue, indicates a majority of either the 100,000+ federally-funded educational institutions, or at least, most of the 7000+ institutions of higher education. In fact, the best evidence out there suggests only a handful of schools used the clear and convincing evidence standard or reserved the right to appeal for accused students. The letter also cites empirical research finding that schools more often have procedures that are stacked against complainants rather than accused.  

While many agencies--the EPA for instance--receive many requests for correction, the Department of Education does not often receive them. So past practice is no basis for predicting how seriously the agency will take this request. Still, it seems unlikely that the Department of Education would change course in any meaningful way on the basis of this petition.  The 2017 Dear Colleague Letter is supposed to be a temporary placeholder anyway, until the Department proposes new regulations. My guess is that the dispute over these "facts" is going to merge into the dispute over the basis for those newly proposed regulations. 

Still, this effort is useful, not only to administrative law professors like me, who love examples of the lesser-known requirements of regulatory process, but for its contributions to the foundation of the policy debate that is about to occur. Advocates are warning the Department that there is evidence out there that it needs to contend with as it tries to rationalize whatever new regulations it eventually proposes. And they are suggesting that vague and imprecise generalizations about supposed problems are not going to hold water when it comes time for the agency to defend those newly proposed regulations against charges that they are arbitrary and capricious. The agency is taking its time releasing the draft regulations, but advocates are not waiting to stake out some of their key positions.

Wednesday, June 27, 2018

OCR Finds Title IX Violations at UNC Chapel Hill

On the heels of investigative reporting into OCR's lower rate of enforcement of civil rights laws compared to the previous Administration comes news that OCR has found UNC-Chapel Hill violated Title IX by mishandling complaints of sexual harassment, concluding a five year investigation.

OCR found that the university's policies governing its response to sexual misconduct failed to ensure that the response was "prompt and equitable" as the regulations require. Specifically, OCR noted that UNC's policy involving complaints against students failed to provide adequate notice of certain appeal opportunities, and its policy involving complaints against employees failed to provide notice of complaint procedures, notice to both parties of the outcome of the hearing, and a right to appeal to both parties. The inclusion of that final finding directly contracts the interim policy with which OCR replaced the 2011 Dear Colleague Letter, which expressly withdrew the DCL's requirement to provide equitable appellate rights to complainants and respondents, though some reporting is calling this contradiction a "department error." 

OCR also review over 300 sexual harassment complaints that the university received since 2011. It found instances where the university employees involved in the process were inadequately trained, and noted that the university's failure to keep good records, especially in the 2011-2013 time period, prevented OCR from determining whether the outcomes and procedures were appropriate. It also found examples of unreasonably delayed proceedings, including one that took 213 days, and noted that it couldn't always tell if the university properly weighed the complainant's request for confidentiality against its obligation to provide a safe and nondiscriminatory environment.

UNC has entered into a resolution agreement in which it agrees to revise its policies for compliance and improve its response -- which OCR noted UNC has already begun to do. The resolution agreement also commits UNC to improve its training for students and employees on reporting and addressing sexual harassment.

Friday, June 08, 2018

Decision Roundup: Deliberate Indifference Edition

Here are some recent judicial decisions addressing institutional liability for sexual harassment and misconduct. These cases all specifically focus on the institution's alleged deliberate indifference:

A student who was sexually assaulted by a classmate plausibly alleged that her school district was deliberate indifferent to the threat posed by the perpetrator, whom school officials knew to have recently touched other female students without consent, and whom they allegedly failed to discipline prior to the sexual assault in question. T.Y. v. Shawnee Mission Sch. Dist., No. 17-2589-DDC-GEB, 2018 WL 2722501 (D. Kan. June 6, 2018).

Affirming the lower court, the 11th Circuit Court of Appeals held that a Florida school district was not deliberately indifferent to reported harassment where it met with the victim and family the day after receiving the report and the day after that, and, following the week-long investigation, suspended the harasser for two days and ordered him not to have any more contact with her.  G.P. v. Lee County School Board, No. 17-14657, 2018 WL 2714658 (11th Cir. June 5, 2018).

A student who was attending a gateway program of the University of Notre Dame argued that the university was deliberately indifferent when it opened an investigation into her sexual assault that had been reported by someone else. But the court dismissed the claim, ruling that the university's decision to respond to the report, was not clearly unreasonable because the university had other reports that the same perpetrator, a UND football player, had assaulted another woman as well, and therefore had "an  obligation to the larger community to investigate the matter." Doe v. Univ. of Notre Dame Du Lac, No. 3:17CV690-PPS, 2018 WL 2184392 (N.D. Ind. May 11, 2018).

A school for students with autism may stand trial on a Title IX claim that it didn't do enough to protect one of its students from being molested by a fellow student who was 6 years older.  The perpetrator had previously been accused of attempting a rape his roommate, and was also known to have shown pornography to the plaintiff. In light of this knowledge, the court concluded, a jury could conclude that the school's failure to separate the plaintiff from the perpetrator and more adequately monitor his conduct amounted to deliberate indifference, and thus denied its motion for summary judgment. Doe v. The League School of Greater Boston, 2018 WL 2077595 (D. Mass. May 3, 2018).

A school district in Missouri must continue to litigate claims arising from a coach's sexual abuse of a student after losing its motion to dismiss Title IX and other claims. The plaintiff alleged that the school officials had knowledge of various acts of increasingly-severe misconduct committed by the coach (who was criminally convicted). The district's failure to discipline or remove the coach could therefore be seen as deliberate indifference, subjecting the district to liability for the abuse the student endured.  KC v. Mayo, 2018 WL 2107201 (W.D. Mo. May 7, 2018)

The school district in Russell County, Virginia, must continue to defend a lawsuit precipitated by a school custodian's sexual abuse of young boys after a federal court denied summary judgment on Title IX claims that alleged the school district's deliberate indifference to the abuse. The plaintiff, one of the students who had been the victim of that abuse, alleged that that school district should have conducted an independent investigation when it learned that the custodian's wife had called on county officials (its Department of Social Services) to investigate the relationship with the student. For its part, the school district argued that it was reasonable to forgo such an investigation in light of the fact that DSS did not find any evidence of abuse, and that the student's guardians had consented to the custodian's role in the student's life. But the court concluded that it was possible that a jury could determine that the school district's response was clearly unreasonable after hearing all the evidence, and allowed the claim to proceed. The court also found that the plaintiff had presented sufficient evidence from which a jury could conclude that that the school responded with deliberate indifference to the custodian's confession to abusing the student. Evidence that the school board failed to offer counseling or other remedial measures or implement any training or personnel policies aimed at preventing future abuse would support a jury's conclusion that the school district is additionally liable for damages arising after notice of the abuse came to light.  Doe by Watson v. Russell Cty. Sch. Bd., 2018 WL 842196 (W.D. Va. Feb. 13, 2018)

A federal magistrate in Texas recommended the dismissal of Title IX claim against the Austin Independent School District arising from harassment that the female plaintiff endured from another male student who had persistently pressured her for a romantic relationship and acted out in disturbing ways when she declined. The magistrate determined that the school had notice of the male student's obsessive behavior regarding the female student after an incident in which the male student exhibited suicidal behavior.  Yet, the school district's response to that information amounted to more than deliberate indifference. School officials developed a safety plan that included a security guard to shadow the female student.  Even though this did not completely eliminate encounters between the female and the male student, it did minimize them and ensured that no harassing behavior occurred again. Therefore, the school district's response was not clearly unreasonable and the school district could not therefore be liable for damages to the plaintiff under Title IX.  E.M. v. Austin Indep. Sch. Dist., 2018 WL 627391 (W.D. Tex., Jan. 30, 2018).

Thursday, June 07, 2018

Decision Roundup: Displined Student Edition

Here are some examples of recent judicial decisions involving Title IX's application to student discipline:

The Ninth Circuit Court of Appeals ruled that a male student's Title IX claim against University of California at Santa Barbara should be dismissed because the plaintiff did not exhaust the administrative remedies available to him as a matter of state administrative law. The plaintiff should have first challenged the university's decision by filing a petition for administrative mandamus before challenging the decision in federal court without any other .  Doe v. Regents of the University of California, No. 17-56110, 2018 WL 2709728 (9th Cir. June 6, 2018).

A student at a performing arts high school who was suspended for sexual harassment could not proceed on a Title IX claim containing "conclusory" allegations that the school's decision to initiate the disciplinary proceeding was motivated by the student's gender as opposed to the allegations of sexual harassment made by his peers. Nor were his claims that the school treated other female students more favorably sufficient to support a claim of disparate treatment due to sex. In re the matter of John Doe, v. Saint Paul Conservatory for the Performing Arts, No. CV 17-5032 (DWF/FLN), 2018 WL 2431849 (D. Minn. May 30, 2018).

A student suing the New School over having been suspended for sexual assault did not sufficiently plead a Title IX claim because the complaint lacked particular facts sufficient to cast some "articulable doubt on the accuracy of the outcome of the disciplinary proceeding." Moreover, the plaintiff supported his allegation that the proceeding was tainted by gender bias by pointing to the panel's finding that he "lacked empathy." The court rejected the contention that this statement indicated the panel was relying on gender stereotypes, noting that the empathy finding lacked a "bona fide connection to gender." B.B. v. The New School, No. 17 CIV. 8347 (AT), 2018 WL 2316342 (S.D.N.Y. Apr. 30, 2018).

A court refused to enjoin the plaintiff's suspension from George Washington University on grounds that his Title IX claim was not sufficiently "likely to succeed on the merits." The student alleged in his complaint that the university was biased against males because it was under investigation from OCR, as well as under pressure from student protestors, over its alleged failure to discipline perpetrators of sexual misconduct.  The court conceded that this allegation could be sufficient to withstand dismissal, but did not rise to the level of likely success required for a preliminary injunction to issue. Doe v. Geo. Wash. U., 2018 WL1972461 (Apr. 25, 2018).

Tuesday, June 05, 2018

University of New Mexico's Athletic Department Scrutinized for Title IX Compliance

Last week the University of New Mexico released a report prepared by a consultant that it hired to evaluate the Title IX compliance of its athletic offerings.  The report determined that UNM was in compliance with the three-prong test, specifically the third prong, but nevertheless recommended that the university strive for compliance with the proportionality prong through a combination of roster management and elimination of some large-roster teams.

The third prong requires a university to show that for whichever sex is underrepresented in athletics, the university is fully satisfying their interests and abilities to play. At UNM, women are the underrepresented sex, making up 55.4% of the student body, while only receiving 43.8% of athletic opportunities -- a disparity that disqualifies UNM from complying with the first prong of the three-prong test, i.e., proportionality. The consultant evaluated women's interest in sports that the university does not currently offer, and found indicators of interest in such sports as rugby and water polo. Additionally, the consultant correctly considered sports that the NCAA recognizes as championship or emerging sports, but which UNM doesn't offer, like Acrobatics and Tumbling, gymnastics and field hockey. For all of these sports, however, the consultant concluded that either recruiting or competition opportunities were sufficiently limited for UNM such that it could justify a decision not to add these teams. The consultant even says, "If UNM chose to argue (to OCR) that it meets the requirements for Test 3, they could do so," adding that this requirement option is challenging in that it requires continued monitoring of the interest levels and popularity of these sports, and possibly the eventual adding of teams at some point.

Nevertheless, the consultant has recommended a strategy for compliance with prong one that the university seems eager to embrace. This is is not surprising, as the university faces a multi-million dollar accumulated and projected deficit. My guess is that the athletic department hired the consultant in the first place to set itself up to make a Title IX argument down the road in defense of what will surely be an unpopular decision to cut some men's team. When the time comes, it will handily hold up the consultant's report and say, "we had to cut teams, Title IX says so!" The university's decision to publicize the consultant's recommendation and make the report easily accessible on its web site is consistent with this strategy.

If that happens, that will be an oversimplification and distortion of what is really going on. If OCR were ever called to investigate athletic offerings at UNM, it would be unlikely to find the university noncompliant. At most, it would require them to conduct interest surveys (which the consultant notes the university hasn't done) and continue to monitor the interest and popularity of sports it doesn't offer. It's possible at some point in the future the university would be compelled by prong three to add a new team for women or else cut an existing men's team for proportionality compliance, but that's not the moment the university seems to be in now. It is unfair to blame Title IX for the elimination of teams when that's not what the law is requiring UNM to do right now. Instead, the university should own this decision.

 (As as side note, I disagree with the consultant's conclusion that the university complies with prong two, for now, as a result of adding a women's team in 2015. Prong two requires a history and continuing practice of adding opportunities for the underrepresented sex -- not a history and recent practice.  Prior to 2015, the last time a women's team was added in 1993, and this gap of 22 years is much larger than any gap I've ever seen the OCR bless as evidence of a continuing practice.)

Wednesday, May 23, 2018

District Court Sides With Gavin Grimm

Gavin Grimm's litigation against the Gloucester School District challenging its refusal to let him use the boys' bathroom because he is transgender has had many ups and downs. In one sense, "ups and downs" describes the case's procedural posture, as it bounced between and among the lower, appellate, and U.S. Supreme Court. "Ups and downs" also describes the mood of Title IX and transgender rights advocates, as Grimm's case was first dismissed by the lower court, then reinstated by the appellate court, then added to the Supreme Court's docket, then canceled after the Trump Administration withdrew OCR's prior position on Title IX on which the appellate court had relied when it ruled in Grimm's favor. This led the case to be remanded to the appellate court, to see what it would do without the benefit of OCR's guidance that favored Title IX's application to transgender rights. But the appellate court, in turn, sent it back down to the lower court... Whew!

Yesterday the lower court in Virginia sided with Grimm (so, that's a DOWN in terms of procedural posture, but UP in terms of mood!). Specifically, the court denied the school's motion to dismiss, ruling that both Title IX and the U.S. Constitution's Equal Protection Clause protect Grimm's right to use the boys bathroom. Sex discrimination includes discrimination motivated by an individual's sex stereotypes, and, the court found, that is what Grimm alleges the school district's policy does: "isolate, distinguish, and subject to differential treatment any student who deviated from what the Board viewed a male or female student should be, and from the physiological characteristics believed that a male or female student should have."

So what happens now?  Are we going UP again to the Fourth Circuit? That depends on whether Gloucester School District appeals. If that happens, will we stay UP in terms of mood?  That's up to the judges in Richmond. Last time, they ruled in Grimm's favor but, as I mentioned, did so in specific reliance on OCR's then-existing interpretation of Title IX. Whether the court will reach the same interpretation of Title IX on its own is a different question, but it helps that the district court has already laid out the argument for reading Title IX to protect the right of transgender students to use the bathroom that corresponds to their gender identities -- as have a number of other district court and one appellate court in similar case.

One final observation: those following closely might recall that one of the reasons the appellate court sent the case back down to the lower court this most recent time was to address whether Grimm's graduation from high school rendered the case moot. According to the parties' briefs, Grimm agreed to voluntary dismissal of his claims for an injunction and other prospective relief, which were unquestionably moot after his graduation. But litigation proceeded on his remaining claims for "nominal damages and retrospective declaratory relief." Retrospective declaratory relief is not something I've seen in Title IX litigation before, but clearly it's something all student plaintiffs should be including in their complaints!

Monday, May 21, 2018

A Roundup of Recent K-12 Discpline Cases

We often blog about discipline cases that involve college students who have been suspended or expelled for sexual misconduct. But secondary school students also use Title IX challenge discipline, as three recent examples show:

A female student in Louisiana was dismissed from the cheerleading team as punishment for "unacceptable behavior while in uniform" after she posed for picture with her uniform skirt raised and this photo was posted to social media. The student and her parents challenged the punishment, arguing that it violated Title IX because male student athletes were not punished as harshly for comparable behavior. The Fifth Circuit Court of Appeals affirmed the lower court's dismissal of her claim for lack of evidence indicating that the punishment was motivated by sex.  Specifically, the court focused on the lack of a cheer-specific male comparitor instead of comparing female and male students athletes more generally. The cheerleading team's "acceptable behavior" policy "did not contain language that could be construed as only applying to female cheerleaders" nor were there allegations that male cheerleaders were disciplined less harshly for similar infractions. Arceneaux v. Assumption Par. Sch. Bd., 2018 WL 2271077 (5th Cir. May 17, 2018).

A male student was suspended after he was reported to have threatened various harm to teacher who had given him a grade lower than he believed he deserved. The student sued, alleging among other claims that the discipline he received constituted gender bias in violation of Title IX. The court denied the school's motion to dismiss and permitted the claim to go to trial because there was evidence that a jury could conclude demonstrates gender bias-- namely, the fact that the other student who participated in the same conversation and also threatened to harm the teacher, who was female, was not suspended, as well as disputed evidence that the vice-principal who disciplined the plaintiff had once mocked the plaintiff for possibly being gay and failing to conform to masculine stereotypes and was allegedly biased against him for that reason. Gentry v. Mountain Home Sch. Dist., 2018 WL 2145011 (W.D. Ark. May 9, 2018)

A school prevailed on its motion to dismiss a Title IX claim filed by a male student who was challenging discipline he received for allegedly "groping" a female student a school dance. The court found that the plaintiff's allegations of sex discrimination were conclusory and lacked sufficient basis to warrant discovery. However, the plaintiff's claims of race discrimination in violation of Title VI were allowed because the plaintiff, who is mixed race, included specific allegations of white students who were not disciplined for similar misconduct. Doe v. The Blake School, 2018 WL 2108204 (D. Minn. May 7, 2018).

Friday, May 18, 2018

Florida Atlantic Accused of Fudging Athletic Participation Data

Florida Atlantic University inflated its female athletic participation data that it submits annually to the Department of Education. This report mislead the government and the public that the institution satisfied its Title IX obligation to provide equitable athletic opportunities by distributing them proportionate to the gender breakdown of the student body, when in fact this was not the case.

According to an article published today by the Palm Beach Post:
In 2016, women represented more than half of the Boca Raton school’s enrollment but only 31 percent of its athletes. The percentage was the lowest of all 127 schools participating in [Division I].
Just one year later, FAU claimed it had erased its female participation gap. It told the U.S. Department of Education in 2017 that 51 percent of its athletes were women.
Specifically, the Post noted that FAU overcounted female track athletes, reporting a team of 98 in 2017, which was more than double the number reported in 2016. The reported number was also considerably higher than the number of the roster, 43, and in the team photo, 38.  FAU reported a total of 222 female athletic opportunities for the combined total of indoor track, outdoor track, and cross country, which if accurate would have made it the largest women's track program in all of Division I.

For its part, FAU acknowledged the inaccuracy but called it accidental, and blamed an employee who no longer works at the university.

It's been a few years since we've seen a story like this one, but today's news suggests that the practice of reporting inflated data still occurs. It also underscores that the way we find out about these problems is when the media goes digging for the truth behind the numbers. 

Wednesday, May 16, 2018

Michigan State Settles With Nassar Victims for $500 Million

We will never know if a jury would have concluded that Michigan State should have known earlier that athletics department doctor Larry Nassar was a sexual predator and responded accordingly to prevent his continued abuse of university athletes as well as those on the Olympic gymnastics team for whom he also worked. We do know, however, that it was worth $500 million dollars to Michigan State not to have to find out: Today comes news that the university has settled for that amount with the 332 alleged victims who have sued the university and other defendants for damages stemming from the sexual abuse they endured from Nassar. $75 million of that will be placed in trust for victims that haven't yet been identified, while the remainder will be divided among the plaintiffs.

The settlement only affects claims against Michigan State University and individual university defendants. USA Gymnastics, the United States Olympic Committee, and other individuals involved with the national team remain parties to the suit. Nassar himself is serving an effective life sentence in prison. He plead guilty to nine counts of assault as well as federal child pornography crimes.

Wednesday, May 02, 2018

Eighth Circuit Rejects University's Sovereign Immunity Defense

A student sued the University of Arkansas, alleging that its response to her report of sexual assault on campus was deliberately indifferent in violation of Title IX.  The university sought dismissal on the grounds of sovereign immunity. Sovereign immunity is the constitutional doctrine that protects states -- including arms of the state, like state universities -- from being sued in federal courts. The exception, however, is when states consent to be sued or waive their sovereign immunity.  Traditionally, courts have agreed that accepting federal money amounted to a waiver of sovereign immunity.  Predictably, the federal district court in Arkansas denied the university's motion to dismiss on sovereign immunity grounds.

But the university fought this decision by appealing to the appellate court for the Eighth Circuit. It solicited support from five other states, who submitted an amicus brief asserting the same theory, that sovereign immunity protects a state university from being sued, at least for damages, under Title IX.  The states argued that a 2011 Supreme Court decision called Sossamon v. Texas changed the test for evaluating whether a state waived its sovereign immunity by requiring "clear declaration" by the state of its intent to so waive. Applied to cases arising under spending-clause statutes like Title IX, that means, the statute itself must contain "unequivocal" language that accepting federal money constitutes waiver.

Here, the relevant statute is the Remedies Equalization Act of 1986, which expressly provide that "a State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court" for a violation of Title IX and other enumerated federal civil rights laws.  The University of Arkansas's argument is that this statute, despite its clear language, does not clearly declare whether a state waives sovereign immunity for damages claims. In ruling against the university's appeal, the Eighth Circuit pointed out that the Remedies Equalization Act clearly stated that states shall be liable for "remedies at law and equity."  Remedies in equity are things like injunctions and declaratory judgments. Remedies are law, the court explained, are damages. The court also found evidence that Congress intended the waiver to apply to claims for damages.  Thus, the court of appeals concluded:
The Remedies Equalization amendment clearly and unambiguously expresses the University’s consent to Title IX suits for damages. By accepting federal funds, the University in fact consented to suits for compensatory damages for violations of Title IX.
Though the university's argument was a long shot, it generated a lot of attention and concern over its potential to seriously curtail the effectiveness of Title IX as a remedy for state university students whose reports of sexual assault generated the institution's indifferent response. These cases are usually driven by a damages claim (as opposed to, say, Title IX athletics cases where the plaintiff is trying to get more resources, or to reinstate a discontinued team).  A university's indifference to sexual assault causes emotional distress, creates expenses (if it causes the student to transfer or otherwise interrupts their education), and may even subject the student to subsequent sexual harassment or misconduct, with its own resulting damages.  If the court had somehow ruled in favor of the university on this matter and prevented state university students from seeking this relief, those students in the Eighth Circuit would have experienced a serious curtailment of their civil rights. The court's rejection of this argument, however, preserves the federal courts as a forum where Title IX claims arising from sexual misconduct can be addressed and where compensation, if warranted, be awarded.

Monday, April 23, 2018

OCR Will Now Dismiss Complaints By "Frequent Flyers"

The Department of Education has recently revised its Case Processing Manual to permit OCR to dismiss complaints in the interest of efficiency. Section 108 of the Manual lists the grounds on which the agency can dismiss a complaint in lieu of, or an any point during, an investigation. These grounds have long included things like: lack of jurisdiction, failure to state a violation of law, insufficient factual allegations, and duplication of an ongoing enforcement action in a state or local agency. But the Department now also permits OCR to dismiss a complaint that is "a continuation of a pattern of complaints previously filed with OCR by an individual or group against multiple recipients" as well as complaints filed for the first time against multiple recipients that "viewed as a whole, places an unreasonable burden on OCR’s resources."  According to the New York times report on this change, the agency justifies this new policy on grounds that it permits them to set priorities for enforcement and to use resources efficiently, by addressing the problem of activists, so-called "frequent flyers," clogging up the enforcement docket with routine filings and mass complaints. 

While this may be new language in the Manual, OCR's aversion to routine and mass complaints is not new in practice. I've seen examples in which OCR dismissed complaints by routine filers on grounds that wouldn't have applied to other complaints. For instance, the agency has dismissed Title IX complaints filed by individuals who routinely challenge inequitable distribution of athletic opportunities in public schools.  In my observation, the rationale for these dismissals -- particularly, in requiring complainants to produce an unreasonable and illogical amount of evidence of unmet interest -- are not consistent with the agency's overall practice.

I suppose it is better that the agency has added a provision expressly permitting the dismissal or mass complaints than to distort the legal standard in ways that could create harmful precedent for all complaints. But I still find it troubling. Because of the way that Title IX and other civil rights laws are structured, the only penalty OCR can impose or threaten is the loss of federal funding -- but it must provide the institution notice of its noncompliance and an opportunity to correct the problem before any funding is withdrawn. As a result, the threat of administrative enforcement does very little to inspire institutions to proactively comply. Why would they?  Compliance is often expensive and unpopular. If you have the choice between doing it now, or maybe having to do it later because OCR has shown up and said, "this is what you have to do in order to comply," why would anyone choose now? Thus, activists filed mass complaints not to be annoying, but because they are the only thing that gets institutions to focus on their compliance obligations.

So while I see the agency's point of view about efficiency and maintaining control over their own enforcement priorities, I am concerned that this new enforcement policy simply makes it even easier for institutions to put off compliance. By cutting off enforcement at the knees, it sustains the persistent gap between what the law clearly requires and what educational institutions actually do in practice.

Thursday, April 12, 2018

For Now 4-H Rodeo May Continue to Label Events for Boys and Girls

In South Dakota, 4-H rodeo is under Title IX scrutiny because of its practice of labeling events for boys and girls. Boys' events include riding bulls and broncs, while girls compete in goat-roping and ribbon-roping.  The USDA, which administers federal funding to 4-H programs*, has apparently taken issue with this practice since the 1970s, so it's unclear why the practice has persisted until now, nor is it clear what prompted the agency to reach out last year with a request to remove the labels "boys" and "girls" from the respective events or risk ineligibility for federal funds.

It's also unclear why 4-H has been resisting the agency's request, given that the "boys" and "girls" labels conflict with the organization's reported actual practice of permitting participants of either sex to compete in all events.  If the labels aren't signalling actual exclusion, what purpose do they even serve?  The only purpose I can see is norm-setting. 4-H is effectively telling girls, "we won't tell you you can't ride a bull, but we can tell you 4-H doesn't think that's appropriate feminine behavior." And the same goes for boys and goat- and ribbon-roping (which Wikipedia explains here).  Sex-stereotyping is a well established aspect of sex discrimination that is prohibited by statutes like Title IX.

For now, however, the Secretary of Agriculture Sonny Perdue has temporarily halted the USDA's enforcement efforts. Yesterday it was reported that the agency will embark on a "broader review" of its Title IX regulations, and the Secretary says it would not be "appropriate" to upend decades of tradition in South Dakota while this review is pending. South Dakota is one of two states that has 4-H rodeo; and New Mexico's 4-H rodeo reportedly does not label its events by gender.

*This is the first time we've blogged about 4-H and Title IX. Because it is an educational program that receives federal funds, it is subject to Title IX.  However, it must comply with the USDA's interpretation of the statute rather than the Department of Education's, because the USDA is the agency that administers its funds. 

Tuesday, April 03, 2018

Big Payouts--Not to Victims

A few weeks ago I wrote about the costs of Title IX violations focusing on the money schools are spending to defend themselves against lawsuits. I mentioned, in that post, that the costs Baylor has incurred are unknown; only that they continue to litigate several cases involving multiple plaintiffs and that they have settled one case.

But Baylor has not just been negotiating settlements with plaintiffs. This week we found out what Baylor paid a lot of money to get rid of former football coach Art Briles and former president, Kenneth Starr. In June 2016, the school reached agreements with both men. Briles received $15.1 million and Starr's severance was $4.5 million.

Baylor's settlement with one victim in the fall of 2017 was confidential. My educated guess is that it was not even close to what these men received.

I want to also note the difference in the amount of the settlements. Coaches get bought out of contracts all the time--a practice which I find infuriating but almost unbearable when the coach is being released because of bad behavior. Briles is just the latest of this group. (Technically not the latest. Rick Pitino is being paid very well for his role in the college basketball bribery scandal. The information about Briles's severance is the newest, however.)

Look at the payouts and figure out who had power and influence on that campus and think about how Baylor continues to deny there was a culture of sexual hostility on campus. Football players were not the only perpetrators, but they were definitely protected by the system. The system, if we are going based on payouts, that Briles ruled over--even more so than the university's president.

Another former president may also be rewarded for her complicity in the sexual abuse of gymnasts scandal. Lou Anna Simon, who stepped down as the president of Michigan State University could get over $1million easily if she comes back as a faculty member in addition to a slew of other perks and benefits. There was some outrage over the conditions stipulated in her contract but I have nor heard any more about whether she will be returning and under what conditions.

Saturday, March 31, 2018

Roundup of Recent Disciplined-Student Cases

A student who was suspended for sexual assaulting another student sued the University of Cincinnati alleging that the disciplinary decision violated Title IX and his constitutional rights to due process. Though the student initially prevailed in motion for a preliminary injunction, the court has now concluded that allegations of gender bias and unconstitutional process are not sufficient to sustain his case.  First, the court rejected that the plaintiff's allegations bias constitute constitutional violations. The university's professed sensitivity to the needs of sexual assault victims, for example, does not establish that anyone prejudged the outcome of this particular case. Nor do general allegations that the university was under pressure to comply with the now-rescinded 2011 Dear Colleague Letter. Finally, in response to the plaintiff's allegations that the Title IX coordinators affiliation with an organization that promotes a victim-centered response, the court quoted the Sixth Circuit, for the point that "merely being a feminist or researching topics that affect women does not support a reasonable inference that a person is biased." The plaintiff's Title IX claim fared no better, as it too lacked the requisite allegation of bias on the basis of sex.  The plaintiff attempted to base his bias allegation on the fact that the university was being investigated by OCR for its sexual assault response. Thus, he asserts, the university would have been under pressure to make an example of him.  Yet, the court reasoned, no allegation claims that any of the university officials involved in his case were even aware of the OCR investigation, let alone were influenced by it. Additionally, the court rejected the claim that media and advocacy pressure to "crack down" on campus sexual assaults and address "rape culture" were sufficient articulations of gender bias, since they do not establish that the university faced pressure for how it conducted disciplinary procedures, rather than in general its sensitivity and response to rape.  Doe v. Univ. of Cincinnati, 2018 WL 1521631 (S.D. Ohio Mar. 28, 2018)


In another recent decision, however, a court concluded that the plaintiff's allegation of gender bias was sufficient and that he could continue to litigate his claim that the university's decision to suspend him for sexual assault violated Title IX:
One plausible inference from plaintiff's allegations is that the University, in an attempt to change historical patterns of giving little credence to sexual assault allegations, has adopted a presumption that purported victims of sexual misconduct are telling the truth. Indeed, that may well be the most plausible inference at this stage. To the extent that discovery shows that any bias against plaintiff stemmed from a purely “pro-victim” orientation, that bias did not violate Title IX or the Equal Protection Clause. But another plausible inference from the complaint is that the University was predisposed to believe Roe because she is a woman and disbelieve plaintiff because he is a man. That inference could be supported by, among other things, evidence that when the accused is a woman and/or when the accuser is a man, the University conducts sexual misconduct investigations and adjudications differently than it did in this case. Such evidence is, of course, practically unavailable to plaintiff without the tools of discovery. Because the allegations in the complaint support a plausible inference of gender bias, Defendants' motion to dismiss Plaintiff's Title IX and Equal Protection claims is denied. 
Doe v. University of Oregon, 2018 WL 1474531 (D. Or. Mar. 26, 2018)

Yet, a third recent decision granted a university's motion to dismiss a disciplined-student's Title IX claim based on the insufficiently of his allegations of gender bias. The court did not accept that OCR's promulgation of the 2011 Dear Colleague Letter put pressure on the university to discriminate against men. Or even, as the court pointed out, that the university made changes to its disciplinary process in response.  Doe v. University of Dayton, 2018 WL 1393894 (S.D. Ohio Mar. 20, 2018).

Friday, March 30, 2018

Plaintiff May Continue to Litigate Claims that Catholic University was Deliberately Indifferent to Her Rape

Students who sue educational institutions for failing to respond to sexual misconduct must meet a high judicial standard of proving that the institution's response amounted to "deliberate indifference." This is a high bar, as the court must find that the institution's response wasn't just flawed, but clearly unreasonable.  Because of this many plaintiffs lose on dispositive motions prior to trial. And so I make a point to blog about the cases that survive such motions, like the one I read today about Catholic University.

In this case, the plaintiff alleged that the university's response to her reported rape was deliberate indifference.  According to her allegations, the university initially declined to discipline the alleged assailant, believing there to be evidence of consent. Then the plaintiff produced a toxicology report that showed her blood alcohol level at the time of intercourse would have been three times the legal limit to drive a car. Thus, she argues, she was clearly too incapacitated to have consented, and so incapacitated that the assailant would have recognized her inability to consent.  Based on this, the university decided (eventually) to conduct a disciplinary hearing.  But, the complaint alleged, the hearing procedures limited the plaintiff's opportunity to present evidence in support of her claim that she was obviously too drunk to consent. As a result, the university found insufficient evidence to find the assailant responsible, a finding upheld on appeal.

The plaintiff's charge of deliberate indifference was supported by allegations that the university's resolution of the case was unreasonably delayed, that its investigation procedures were flawed and lacking, that she was denied procedural rights at the hearing, such as having adequate notice of the date and time, and an opportunity to call certain witnesses. Additionally, she alleged that university officials involved had already made up their minds about the case, and that they treated her with hostility.  And, she claims that the University failed to maintain and to enforce a no-contact order and thus exposed her to continuing harassment throughout her time in college.

The court needed to consider only two of these claims before reaching the conclusion that she had adequately plead deliberate indifference. First, the court reasoned that a jury could find deliberate indifference if the plaintiff proves her allegations of delay -- primarily, the allegations that the university took eight months to hold the disciplinary hearing. This is notable because the lower courts are pretty mixed about whether delay can qualify as deliberate indifference.  The other allegations that the court credited were the ones about university's failure to enforce the no-contact order; these too could give rise to liability under Title IX if they prove true. With two reasons to deny the motion to dismiss, the court decided it did not need to evaluate whether any of the plaintiff's remaining allegations of deliberate indifference would have independently support liability as well.

Of course, surviving a motion to dismiss is only a preliminary victory for the plaintiff. As the court pointed out, she is still vulnerable to dismissal at summary judgment if evidence to support these allegations does not emerge.  And of course, the jury would have an opportunity to decide if the evidence supports the conclusion that the university was deliberately indifferent.  But enough cases stumble on that preliminary step that this one is worth noting.

 Cavalier v. Catholic Univ. of Am., 2018 WL 1524743 (D.D.C. Mar. 27, 2018)

Wednesday, March 28, 2018

NPR's Story on Title IX and Religious Institutions Lacks Context

Yesterday NPR ran a story on All Things Considered addressing the conflicts some religious institutions face between upholding their religious beliefs and respecting/including LGBT individuals and identities. I liked that the story, and its counterpart on yesterday's Morning Edition, captured some of the nuance and avoided the reductionist narrative of Christians versus Queers. Listeners heard from college administrators at Christian institutions that respect and support LGBT students, as well as from LGBT students who, as Christians themselves, appreciate and genuinely feel included by their Christian college communities.

But when ATC's segment turned its focus on the supposed fear and worry on the part of some Christian institutions that they could lose federal funding if they do not endorse LGBT rights, the framing of this story started playing into Christian propaganda.  The report neglected to include important context that shows there is no actual reason for religious institutions to worry.

First, OCR has never revoked any institution's federal funding in the entire lifetime of Title IX. Though general, that seems like kind of an important point to make when specifically discussing concern that this could happen.

Second, thanks to the current presidential administration, OCR will not enforce Title IX's application to transgender rights. This was mentioned briefly in the report, but its significance was not addressed. Religious institutions have zero reason to fear that OCR is going to start requiring institutions of any kind, religious or not, to house transgender students or let them use facilities according to their gender identities. (Courts are another story, but courts do not have the power to revoke federal funding.) 
 
Third, even confining religious institutions' fear to the anticipation that OCR could in the future return to its former position on LGBT rights, it still needs to be emphasized that Title IX exempts religious institutions from any part of Title IX that conflicts with their religious beliefs.  All a religious institution has to do is send in a letter that explains what part of Title IX conflicts with what religious tenet.

Fourth -- and this was completely missing from the story -- since 1976, OCR has handed out these religious exemptions like candy.  Not one single exemption request has ever been denied. Even the previous administration granted all the exemption requests it received from Christian colleges seeking to preserve their right to discriminate against LGBT students.  There is absolutely no reason to think that OCR would pick this moment to break with 40+ years of precedent and start denying or revoking those exemption requests.

The framing of this story bothered me because the current administration has done everything it can to support religious freedom, and everything it can to roll back LGBT civil rights. Yet somehow the narrative of this story is that the civil rights of religious institutions are the ones at risk.  This is exactly what the right wing media does when it reports, for example, on the imaginary war on Christmas.  I hoped for better from mainstream media. 

Sunday, March 18, 2018

Discipline Student's Case Against UMass Dismissed; Against Marymount Continues

This week I read two decisions in cases stemming from a university's decision to discipline a student for assault.  In one of these cases, the University of Massachusetts prevailed on summary  judgment on both the plaintiff's due process and Title IX claims. The plaintiff, a male student had physically assaulted a female student during a study-abroad program and then (multiple times) violated subsequent no-contact orders that were supposed to keep him away from her while the disciplinary process was pending. The student alleged that the university's decision to expel him was procedurally inadequate due to the length of time (seven months) it took to issue its final decision and other things, but the judge found no violations of his constitutional rights to due process. On his Title IX claim, the judge found no evidence to conclude that the hearing board committed error, let alone was motivated by gender bias. The plaintiff did not dispute the facts of the underlying assault or the no-contact violations, and the record was "entirely devoid of proof" that the board's decision was tainted by gender bias.  Haidak v. University of Massachusetts, No. 14-cv-30049-MAP (D. Mass. Mar. 9, 2018). 

In the second case, a court denied Marymount University's motion to dismiss a plaintiff's claim that its decision to suspend him for sexual assault violated Title IX (the plaintiff's torts and contracts claims against Marymount were dismissed, however). The court agreed that he satisfied the first element of an erroneous outcome claim by alleging that various procedural errors -- including ones that prevented him from cross-examining the complainant and marshaling exculpatory evidence -- caused the university disciplinary board to wrongly conclude he was responsible for the sexual assault for which he was charged. The court also accepted the plaintiff's allegation of gender bias as sufficient to survive a motion to dismiss.  The plaintiff alleged that the professor who adjudicated his hearing had revealed gender bias in a subsequent, separate case that that professor also adjudicated.  That later case involved a male complainant, who had accused a female student of touching his genitals without his consent.  The professor allegedly questioned the male complainant about whether he was aroused by the unwanted touching, and allegedly expressed disbelief that the complainant said he was not. The plaintiff claims that this shows the professor who adjudicated his matter employed discriminatory stereotypes about gender and sexuality. However, the court did not explain how an adjudicator's bias that "men cannot be victims of sexual assault" translates into bias that "men accused of sexual assault must be guilty."  I don't see the how the plaintiff's allegation could, if proven, allow the jury to conclude that the adjudicator was biased against the plaintiff because of his sex.  Doe v. Marymount Univ., No. 1:17-cv-401 (E.D. Va. Mar. 14, 2018).

Thursday, March 15, 2018

Jury Awards Coach Shannon Miller $3.74 Million

A federal court jury in Minnesota determined today that the University of Minnesota-Duluth was motivated by sex discrimination and retaliation when it decided not to renew the contract of former women's hockey coach Shannon Miller.  As a result, the university violated Title IX and is liable for $3.74 million in damages. This figure includes $744,000 to cover Miller's past lost wages and $3 million to compensate for her emotional distress. 

Though the university argued that Miller was not renewed for performance reasons, Miller's presented evidence that convinced the jury that she was actually let go because she was a strong advocate for her team and that that athletic department employed double standards when making employment decisions about male and female coaches. 

Some of our past blog posts about this case are here, here, and here.

Tuesday, March 13, 2018

Transgender Student Wins Decision in Locker Room Case

Another federal court has sided with transgender students and ruled that Title IX and the Constitution's Equal Protection Clause protect their right to use sex-specific facilities that correspond to their gender identity. The plaintiff in this case, who goes by his initials M.A.B., sued the board of education in Talbot County, Maryland, over his high school's decision to prohibit him from using the boys' locker room to change for gym class. M.A.B. was required instead to use gender neutral bathrooms for this purpose, even though that facility does not have lockers, showers, or benches, and is located remotely from the boys' locker room. The school board moved to dismiss his Title IX and Equal Protection claims on grounds that they fail to state a claim covered by either law, but the court has denied that motion, paving the way for litigation to continue.

The court applied the sex-stereotyping theory of sex discrimination to conclude that the school board violated Title IX, reasoning that M.A.B. is excluded from the locker room because his transgender status contravenes stereotypes about sex and gender. Addressing his constitutional claim, the court applied intermediate scrutiny to the school board's policy because it singles out M.A.B. for reasons related to sex and because transgender individuals are a quasi-suspect class. The court determined that the exclusion policy did not survive intermediate scrutiny because it is not substantially related to the school board's interest in protecting student's privacy, since the locker room has partitioned stalls for changing clothes, and toilets with stalls and doors. A student who wants privacy can elect to take advantage of these features without experiencing the same kind of stigma and psychological harm that M.A.B. faces when he is mandated to use single-user facilities.

In the same decision that the court denied the school board's motion to dismiss, the court also considered M.A.B.'s motion for a preliminary injunction that would allow him to use the locker room while the litigation is pending.  The court denied this motion on the grounds that P.I. remedy requires a showing of irreparable harm, which M.A.B. cannot satisfy because he is not currently not taking physical education or competing in sports.  Though he will take P.E. next school year, the court seemed confident that it would issue its decision on the merits by then, which would render the preliminary injunction unnecessary. If the court is wrong and the case is still open when M.A.B. starts school in the fall, he can refile his motion for a preliminary injunction at that point.

Thursday, March 08, 2018

The cost of Title IX and backlash rhetoric

In talking about the repercussions of Title IX, a common statement is that the ultimate price of non-compliance is the revocation of federal funds. Quickly it is noted that this has never happened. No school has ever been punished by the Office of Civil Rights by having their federal funding pulled.

Perhaps this is obvious--but there are other costs to non-compliance. The fact that federal funding has not been revoked does not mean that schools do not pay for their mistakes and ignorance--willful or not.  This is an important reminder as we continue to exist in a time of uncertainty in regards to the enforcement of the law and continues on our theme of recent weeks: head to the courts.

We have, over the years, discussed the many settlements and jury verdicts that have cost schools hundreds of thousands, if not millions, of dollars. These are cases that have addressed retaliation against female coaches and administrators along with advocates of women's sports, as well as discrimination against transgender students. There are too many cases to link to here but examples have come from University of Iowa, Fresno State, Florida Gulf Coast, and several high schools that have been found to have discriminated against transgender students.

This post focuses on the costs schools incur when they choose to fight Title IX cases in court. How to proceed with legal action is always a literal cost-benefit analysis. I have been seeing more media attention being paid to these costs. The impetus for this post was an article about the pending case against Kent State University in Ohio: Kent State Budgeting over $600,000 for Kesterson Title IX Lawsuit. And then there was one about Iowa State which has "spent more then $120,000 on three Title IX lawsuits." Baylor, still in the midst of its sexual assault scandal has settled one case, but continues to fight in court the others it is facing.

Last week it asked a court to throw out a lawsuit from one of 17 plaintiffs suing the school. How much Baylor has spent in court thus far is not information I could find, but it must be considerable given the number of cases. It remains to be seen how hard they intend to fight each of the five other lawsuits involving the rest of the plaintiffs and how much money they will devote to what appear at this point to be losing battles--if not in court, then certainly in the realm of public relations.

The Kent State case, which I wrote about initially in 2016 and involves the alleged cover-up of an assault by a coach who is also the alleged perpetrator's mother, is currently in the discovery stage. The $600,000 figure cited in the headline is based on the total budgeted thus far since the lawsuit began.

We have not written abut Iowa State where only two of the three cases mentioned in the headline are still pending. (A judge dismissed one last week.) But one case is from a student  who was raped in a fraternity and who is accusing the university of deliberate indifference because administrators knew about the prevalence of sexual assault within the Greek system. The second is a lawsuit brought by the former Title IX coordinator who says the university prevented her from doing her job effectively and also engaged in patterns of racial discrimination putting women of color, like herself, in visible positions of leadership but not actually listening to them. I am especially interested in the latter case and how the intersectional discrimination this former employee faced will be discussed and considered by the court should it get that far.

Returning to the original topic though regarding money schools spend on lawsuits: costs matter because we should be paying attention to how much money schools are spending on lawsuits, especially schools--like Baylor--which have obvious patterns of violations and indifference and denial. But these public reports and interest about where the money is coming from and just how much of it is being spent can also have a deleterious effect.

They can contribute to the backlash against enforcement of the law, especially in a moment where how sexual assault on campus should be handled and how it will be addressed going forward is a very large uncertainty. We have already seen considerable backlash from a vocal group of accused men that has disproportionately taken up the public discussion of campus sexual assault. I worry that the "how much is school X spending" could have similar effects, especially when the school is public and thus taxpayers are implicitly called to action with these headlines and reports.

What differs is that schools have to address a lawsuit whether by fighting it or settling. But public opinion matters and it matters a lot when Title IX enforcement is in its current precarious situation.

Wednesday, March 07, 2018

Rape Victim's Title IX Claims Against Columbia Dismissed

A federal court in New York dismissed a Columbia student's lawsuit against the university alleging that its inadequate response to sexual misconduct in general, and to her own rape in particular, violated Title IX. Specifically, the student alleged that she was raped twice in her dorm room. She claimed that Columbia's liability for the first rape stemmed from its indifference to the problem of sexual assault on campus. This allegation involved too-general a threat, however, to impose some specific obligation on Columbia. Institutions are only liable for pre-assault conduct if they failed to respond to a more specific threat, such as notice that the plaintiff herself was under a heightened risk of assault, or notice involving the particular context or manner in which the plaintiff was assaulted. Absent such allegations, the court dismissed this aspect of her Title IX claim.

The plaintiff also alleged that Columbia was liable for the second rape because it did not adequately respond after she reported her first rape.  The court's conclusion that this claim was also insufficient stemmed in part from the lack of notice that the university received. For one thing, she did not report the first rape to her professor, she only alluded to rape in vague enough ways that did not trigger the professor's responsibility to report to the university's Title IX office. For another, though she later reported the rape at an advocacy group meeting, Columbia policy specifically exempts rapes disclosed "at public awareness events, such as protests, “survivor speak outs,” and other student advocacy forums" from triggering an investigation. The fact that Columbia officials did reach out to her following the disclosure, and that they respected her wishes not to pursue an investigation, precluded the court from characterizing Columbia's response as clearly unreasonable, as required to impose liability under the deliberate indifference standard.

This case made me think about the ongoing debate about mandatory reporting policies. I'm noticing increasing research and advocacy against the mandatory reporting policies, such as this new paper in American Psychologist, which concludes that evidence does support the belief that mandatory reporting policies are helpful to survivors, and that they may in fact harm survivors by limiting their autonomy. The paper proposed several alternatives that the authors believe are more survivor-focused, such as allowing university personnel who receive a student's report of sexual assault to respect the victim's choice on disclosure, and to whom an incident may be reported, and allowing victims to chose whether their report gets investigated.

But what are we supposed to make of those findings  and recommendations in light of stories like the plaintiff's here?  Her autonomy was preserved --  by a mandatory reporting policy that let her say just enough to her professor without triggering the professor's obligation to report, and that exempt disclosures made at public awareness events.  It further preserved her autonomy by allowing her to determine whether her first rape got investigated.  Her autonomy was preserved, but was her safety?  She was raped again.  And I think it's telling that in retrospect she argues that the university should have done more to protect her safety, and that she faults the university for the very things that the university did to preserve her autonomy.

I don't purport to know the right balance between safety and autonomy here, but I am concerned that we are not talking enough about the risks, not only to victims and survivors, but to the campus community as well, stemming from a university's well-meaning choice to do nothing rather than respond.  I appreciate research like the paper I noted above, but I hope there are equal efforts to document the harm that results from policies like the one those authors propose.

The decision described in this post is: Roskin-Frazee v. Columbia Univ., 2018 WL 1166634 (S.D.N.Y. Feb. 21, 2018).

Wednesday, February 28, 2018

Litigation Update in St. Cloud State Athletics Case

On Monday a federal court ruled on various preliminary motions aimed to limit the scope of ongoing litigation against Saint Cloud State University in Minnesota, which was sued by female athletes over its decision to eliminate two women’s teams in 2016.  The plaintiffs claim that even though the university cut four men’s teams at the same time, the elimination of women’s tennis and nordic skiing violate Title IX because the university failed and continues to fail to provide athletic opportunities in proportion to women’s enrollment.  Though Title IX provides alternatives to proportionality compliance, neither of them is satisfied when a university cuts viable teams of the underrepresented sex.  The lawsuit also challenges inequitable distribution of scholarship dollars and access to facilities and equipment.

One issue that the court addressed this week was the plaintiffs’ decision to pursue this litigation as a class action. The class action is an important litigation strategy to plaintiffs in Title IX athletics cases because without it, lawsuits are vulnerable to dismissal for lack of standing after the plaintiffs graduate.  Here, the court agreed to certify the class over some objections by the university, but it did modify the description of the class to ensure it wasn’t overly broad. Now, the class of plaintiffs include “all present, prospective, and future students at Saint Cloud State who are harmed by and want to end sex discrimination in the allocation of athletic opportunities, the allocation of athletic financial assistance, and the allocation of benefits provided to varsity athletes.” The italicized language was added by the court, which used as a model a similarly-defined class that was certified in the Quinnipiac case.  

More significantly, the court narrowed the scope of the plaintiff’s case by granting the university’s motion to dismiss the plaintiffs’ claims for money damages arising from the alleged discrimination in the allocation of athletic scholarships. Title IX is a spending clause statute, expressly requiring that universities refrain from sex discrimination as a condition for federal funding. Though the Court has permitted private lawsuits to seek money damages from institutions that violate Title IX, the plaintiffs in such cases must prove that the institution engaged in intentional discrimination.  Decisions that reflect official university policy are intentional, as are unofficial decisions that the university fails to remedy despite being on notice of the fact that they are discriminatory. Here, the court agreed with Saint Cloud State that the university’s allocation of athletic scholarships was not official university policy; nor did university officials have notice of the fact that the harm to plaintiffs resulting from the alleged discriminatory allocation.  This conclusion, which the court supports by citing a 2001 Eighth Circuit decision called Grandson v. University of Minnesota, is concerning to me (and I’ve criticized its application in other cases as well.). An athletic department is strategic and intentional about how many scholarships to offer. In this case especially, the plaintiffs allege that the disparity in scholarships results from the athletic department’s decision to include too few women’s sports in the tiers that receive full scholarship support.  The decision to tier one’s athletic offerings is surely an official decision, isn’t it? 

The court also granted the university’s motion to dismiss the plaintiffs’ Equal Protection claim on the grounds that the state has not waived its sovereign immunity to be sued for violations of the 14th Amendment.

Lastly, the court addressed the scope of testimony of the plaintiff’s expert witness, Dr. Donna Lopiano. Lopiano, a former athletic director and advocate who currently serves as gender equity consultant. Here, the court agreed with the university’s argument that the law prohibits expert witnesses to testify about legal requirements or to provide legal conclusions.  Yet, the court ruled that Dr. Lopiano is permitted to testify about her own findings about the university’s compliance with equal opportunity, equal treatment, and scholarship provisions of Title IX, as well as Title IX compliance at other institutions. 

Portz v. St. Cloud State Univ., 2018 WL 1050405 (D. Minn. Feb. 26, 2018).

Monday, February 26, 2018

Second Circuit Rules Sex Discrimination Covers Sexual Orientation Discrimination

The Second Circuit Court of Appeals ruled today that when an employer discriminates against an employee because that employee is gay or lesbian, that employer had discriminated "on the basis of sex" in violation of Title VII.  Because Title IX contains a similar sex-discrimination provision, it is virtually certain that lower courts in this jurisdiction will apply the same reasoning in Title IX cases as well.

The case before the court began when a now-deceased parachute instructor was fired from his job for what he believed was the employer's anti-gay bias. A lower court dismissed his claim that this discrimination was covered under Title VII, citing older Second Circuit precedent holding that sexual orientation discrimination and sex discrimination are categorically distinct. The plaintiff's estate appealed, however, hoping to get the Second Circuit to join the recent, emerging recognition by the EEOC and some courts that an employer who is biased against an employee's sexual orientation is necessarily taking that person's sex into account. Taking a gay man for instance, discrimination motivated by his sexual orientation necessarily takes his status as a man into account, since a woman who is attracted to men is not targeted for similar discrimination. Relatedly, the already-settled application of Title VII to discrimination motivated by the employee's failure to conform to sex stereotypes implicates sexual orientation discrimination as well, since a gay man fails to conform to the stereotypes that men are attracted to women. Finally, discrimination against a gay man is associational sex discrimination, in the sense that it targets him for his (romantic) associations with men but not women.  In making these points, the Second Circuit expressly refuted counter arguments raised by the Department of Justice, which filed an amicus brief in the case. The court remanded the plaintiff's Title VII claim back to the lower court where it should be reinstated.

The Second Circuit joins the Seventh Circuit, whose similar ruling last year was also noted on this blog, as the second appellate-level court to interpret Title VII (and by extension Title IX) in this broad manner (some lower courts have as well, including in the Title IX case against Pepperdine). The Second Circuit covers New York, Connecticut, and Vermont, while the Seventh includes  Indiana, Illinois and Wisconsin. In these states, therefore, there is clear federal law that prohibits sexual orientation discrimination by employers regulated by Title VII and schools subject to Title IX. Additionally, the persuasive power of these rulings from two influential circuit courts will likely persuade federal courts in other states as well.

Saturday, February 24, 2018

Wichita State VP Claims Retaliation for Investigating Campus Rape

Earlier this month the federal district court in Kansas ruled on Wichita State University's motion to dismiss a lawsuit filed by Wade Robinson, its former Vice President for Campus Life and University Relations. Robinson had sued the university after he was fired, alleging that the university took this and other adverse action against him in retaliation for his efforts to investigate incidents of rape reported to his office, including a rape allegedly committed by a member of the university's basketball team.

The court denied the university's motion to dismiss most of Robinson's suit and concluded that his complaint satisfactorily alleges the elements of a retaliation claim under Title IX. The element disputed in this case is the requirement that a retaliation plaintiff allege that he engaged in conduct protected by the statute. Generally such protected conduct may include advocating internally for Title IX compliance. However, when Title IX compliance is part of one's job duties, efforts to internal secure compliance do not count as protected conduct. Yet, Robinson's complaint included allegations that his Title IX advocacy had gone beyond the scope of his job as the court explained:
Had the Complaint in this case merely alleged that plaintiff warned WSU that it could face liability for failing to investigate alleged sexual assaults, the court might enter judgment against plaintiff on Count I. ... But here, the Complaint alleges substantially more than that. It alleges that plaintiff started two investigations and filed a complaint. The Complaint thus sufficiently alleges that plaintiff crossed the line from being an employee merely performing his job as Title IX compliance overseer and actively assisted others in asserting Title IX rights.... These allegations preclude the court from applying the manager rule to plaintiff’s claim and thus preclude judgment on the pleadings. 
The court also denied the university president's motion to dismiss Robinson's due process claim against him (though it did dismiss some state law claims).  That means the retaliation and due process claims will proceed to the discovery phase of litigation and, barring settlement or summary judgment, eventually to trial.  Yet regardless of what happens to this case moving forward, administrators working on Title IX issues will find this preliminary ruling helpful and reassuring on the question of what constitutes protected conduct as a matter of law. 

Robinson v. Wichita State Univ., 2018 WL 836294 (D. Kan. Feb. 13, 2018).

Friday, February 23, 2018

In Oregon School District, Girls Must Pay More to Play

Here's an interesting article that Oregon Public Broadcasting ran this week about the Beaverton school district charging girls more than boys for opportunities to participate in sports and other activities. A local woman first noticed gender disparities in utility charges, of all things, after she inquired about the school district's practice of billing her nonprofit, which runs after school programs on school grounds, for water and electricity. When she started looking into what other organizations the school district charges, she noticed a gender pattern: activities like cheer and dance, which primarily attract girls, were also being billed.

The utilities issue prompted her and other parents to ask questions about sports as well.  The school district charges athletes $225 to participate on a high school team, but the parents discovered that this fee is waived more often for boys than for girls. The parents also started looking into supplemental athletic activities like off-season camps, that are not part of the school's program but are offered by separate business run by the coaches.  These also charge for participation.  When the cost of these optional-but-not-really-if-you-want-to-make-the-team programs are added in, another disparity appears: Girls playing soccer at one of the district high schools were charged $450 total; boys paid $265, and an even greater difference exists between boys and girls playing basketball at the other high school.

The parents' advocacy has prompted the school district to pay closer attention to how coaches are running private, off-season camps. But the article did not indicate that school district officials were planning to regulate what coaches could charge in order to ensure equity between boys and girls participation costs or if they would offset the higher cost to girls in some other way. The parents advocating for equality liken the role of coach-run businesses to other third parties, like booster clubs, which Title IX does not recognize as an excuse for more favorable treatment granted to boys' teams. The article notes that this position is unpopular with parents in boys-team booster clubs, but it at least quotes a school district official acknowledging this is how Title IX works. OPB  has promised more reporting on this issue, so we will see what changes it leads to.  The parents seem dogged and resourceful and unlikely to give up. It also helps that the law is on their side.

Wednesday, February 14, 2018

NSF Will Require Grant Applications to Disclose Sexual Harassment

The National Science Foundation announced last week that it will require institutions seeking foundation grants to disclose in their proposals any institutional findings of sexual harassment (or other harassment) by the grant's primary investigators or other personnel. Additionally, a grant-recipient must report any grant personnel are put on administrative leave over harassment allegations. This obligation extends throughout the period of time the grant is in effect, and could result in the NSF's suspension of the grant. 

Because NSF is a federal agency that distributes federal funds, it has a responsibility independent from Department of Education's to ensure that its grant decisions do not violate Title IX requirement that taxpayer dollars are not used to support sex discrimination. Consistent with this requirement, the NSF has its own Title IX regulations and conducts routine, random reviews of academic departments that it supports with grant money. It has also already denounced sexual harassment in a 2016 public statement.

The example of the NSF is an important reminder that the Department of Education is not the only agency with power to hold institutions accountable for sex discrimination and sexual harassment. As the current DoE is backing off of the prior administration's Title IX enforcement efforts around sexual misconduct, the efforts of other agencies will become increasingly significant. Notably, the NSF has more political independence to distance itself from the current administration, since its director was appointed by President Obama in 2014 to serve a six-year term.

Saturday, February 10, 2018

6th Circuit Reinstates Discplined-Student's Title IX Claim

Yesterday the Sixth Circuit Court of Appeals reversed a lower court ruling that dismissed Title IX claims against Miami (Ohio) University in the case of a male student who was suspended for four months for "non-consensual sex acts" with a female student while he was intoxicated.  The district court had concluded that the male student, who brought various claims against the university in challenge of his suspension, did not adequately allege that the procedural errors he claimed affected the outcome of his case were motivated by bias on the part of university administrators. On appeal, however, the appellate disagreed. Specifically, the appellate court credited the plaintiff's allegations of the university's pattern of pursuing investigations and disciplining male and not female students, including the allegation that the university initiated an investigation against him but not the female student in his case. Focusing on the low burden on plaintiffs at the stage of a motion to dismiss, the court concluded that, "discovery may reveal that the alleged patterns of gender-based decision-making do not, in fact, exist. That information, however, is currently controlled by the defendants, and John has sufficiently pleaded circumstantial evidence of gender discrimination."  In particular, I think discovery could potentially reveal information that either refutes this pattern or explains it by something other than gender bias. 

As for other claims in the plaintiff's case, the court affirmed the lower court's dismissal of the plaintiff's deliberative indifference and hostile environment Title IX claims. But it partially reversed the lower court's dismissal of his equal protection and due process claims. The equal protection claim involved a similar allegation as the Title IX claim: that the university had information that could have lead it to conclude that either student violated the sexual misconduct policy (specifically, he alleged that she kissed him without consent) and only chose to investigate him and not her.  The due process claim that was reinstated involved an allegation of decisionmaker bias.

Doe v. Miami Univ., 2018 WL 797451 (6th Cir. Feb. 9, 2018)