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)

Friday, February 09, 2018

Nonbinary Student Forced Off Boys' Teams

Outsports posted yesterday a story about a middle school athlete in California who has been kicked off the boys' basketball team for reasons related to the athlete's gender identity.  The athlete, Junior White, identifies as nonbinary -- that is, having a gender identity that is neither singularly male or female.  Junior's assigned sex from birth is male and Junior competes on the boys football and basketball teams. Junior's teammates and the school community were initially supportive of Junior's gender identity, but his Junior' recent decision to use the girls' locker room and restroom -- where Junior feels more comfortable because of his trans* status --  apparently provoked the school principal to insist that Junior's use of the girls' facilities makes him ineligible for boys' sports.  

This is an odd position for the school to take, which to me raises questions about whether the principal's objective is for Junior to play on girls' teams, or for Junior to stop using the girls' bathroom. It is odd because usually it is more controversial when transgender girls want to play girls sports than when they want to keep competing consistent with their male birth sex. It is also inconsistent with California law, which "permits" athletes to participate on athletic teams in a manner consistent with their gender identity, "irrespective of the gender listed on the pupil’s records."  It permits gender-identity based participation -- it does not require the athlete to give up competing on the teams that correspond to the athlete's gender of record.  Put simply, this means if Junior identifies as female, Junior can play girls' sports if Junior wants to. But neither of these statements are true. Junior identifies as nonbinary, and Junior wants to play boys' sports, consistent with the gender in Junior's records.

The principal's decision is even more odd for declaring Junior ineligible for football along with boys' basketball. If a school offers separate boys' and girls' teams in a single sport, a school can prohibit a girl from playing on a boys' team and vice versa, consistent with both Title IX and constitutional principles of equal protection. But in situations where there is not a girls' team in the sport in question, female athletes routinely won the right to try out. Even in contact sports like football (which are exempt from this aspect of Title IX), female plaintiffs have prevailed by challenging their exclusion under the equal protection clause.  So, even if Junior did identify as female, that would not be a valid basis for excluding Junior from the football team. 
The Outsports article mentioned that the Junior and other students and supporters are protesting the school's decision. My feeling is that if they wanted to add a legal challenge to the mix, they would be on solid ground.

Wednesday, February 07, 2018

Is Bias Based on Sex or Conduct?: Reflections on a Recent Judicial Decision Permitting Litigation in a Discplined-Student's Case

A male student may continue to litigate part of his Title IX claim against the University of Cincinnati after the federal court in Ohio partially denied the university's motion to dismiss. The student alleged that the university discriminated against him on the basis of sex when expelling him for having sexual encounter with a female student who was too incapacitated to consent, a claim that requires his support in the form of specific allegations that the university's disciplinary decision or process was tainted by gender bias. In response to the plaintiff's allegations, the court rejected the idea that the 2011 Dear Colleague Letter or the university's efforts to address sexual misconduct were themselves evidence of gender bias. Nor did it agree that allegations of bias in favor of sexual assault victims constitute allegations of sex discrimination. However, the court did accept as plausible allegations of gender bias the plaintiff's allegations that the university police detective who played an influential role in the disciplinary proceeding had developed a romantic attraction to the female complainant in the plaintiff's case. Specifically, the court reasoned, these allegations "give rise to a plausible inference that [the detective] would have a gender-based animus against [the plaintiff], a male who had sexual intercourse, whether consensual or non-consensual, with [the complainant]." As the court noted later when partially denying the university's motion to dismiss the plaintiff's due process claim, the university should have at least given the plaintiff the opportunity at the disciplinary hearing to question the detective about this potential bias.

The due process analysis makes sense to me as it appears potentially prejudicial to keep a respondent from being able to ask questions about the possibility of the detective's bias. But on the Title IX issue, I don't understand that this bias is motivated by the plaintiff's sex, but rather by the plaintiff's alleged conduct. Even the court's own words quoted above seem to me to characterize the bias as being about conduct (that the plaintiff "had sexual intercourse" with the complainant). The court's conclusion that this is "gender-based animus" does not flow from its own description, and in addition, conflicts with the first part of its analysis when it rejects the idea that bias against respondents is the same thing as bias against men. The court could have dismissed the Title IX claim without undermining the plaintiff's ability to litigate the detective alleged bias with the due process claim, since as a matter of due process, bias does not need to be motivated by sex in order to be actionable.

This isn't the first decision I've noticed the conflation of sex for conduct as the motivation for alleged bias in student discipline cases.  I think the reason why this tendency sticks out to me is that it is a reflection of judicial heteronormativity.  Normally, one tests for bias on the basis of sex (or race, etc.) with a substitution technique; one imagines a counterfactual scenario involving someone of the other category. If the judge had applied it here, they would have asked: If the person alleged to have had sexual intercourse with the complainant was female, would the allegations of the detective's bias been plausible?  Based on that question, the judge might conclude (as I have) that the plaintiff's conduct, rather than his sex, is the grounds for the alleged bias.That the judge does not appear to even ask that question stems from a short-sightedness about the range of possibilities where sex and sexual behavior are concerned.

Gischel v. Univ. of Cincinnati, 2018 WL 705886 (S.D. Ohio Feb. 5, 2018)

Tuesday, February 06, 2018

University of Minnesota-Duluth to Face Trial on Coach's Sex Discrimination and Retaliation Claims

Last week the federal district court in Minnesota ruled on the University of Minnesota's motion for summary judgment  in a multi-count lawsuit filed against it by three female former coaches at the Duluth campus, who had alleged a variety of discrimination claims arising from their employment. Though the court granted summary judgment on several of the plaintiffs' claims, it refused to dismiss Coach Shannon Miller's claim that sex discrimination motivated the university's decision not to renew her contract, and her claim that the university retaliated against her for raising Title IX concerns. Those issues are now heading for trial scheduled in March.

Sex discrimination. UMD defended its decision not to renew Miller's contract on two grounds: the poor performance of the women's hockey team, which Miller coached, and the lack of "return on investment" for continuing to pay Miller's relatively high salary. Yet the court acknowledged, there is sufficient evidence that jury could conclude that these explanations were in fact pretext for sex discrimination. Specifically, the court identified: (1) evidence that the men's hockey coach was retained comparable or worse performance of his team; (2) evidence that the department used different criteria to evaluate Miller's renewal than the renewal of the men's team's coach; (3) the fact that the department gave inconsistent explanations for Miller's nonrenewal (saying first it was because of finances, then later arguing it was based on performance); evidence that the university's financial situation "was not as dire as it claimed"; and (5) the fact that the department did not pursue alternatives to nonrenewal that would have been consistent its ostensible concern about finances, such as asking Miller to take a pay cut or seeking donors to fund her salary. 

Retaliation.  The court also concluded there was sufficient evidence on which a jury could conclude that the university had retaliatory motives, in addition or instead of a desire to get rid of Miller because of her sex. Miller engaged in protected conduct by complaining to athletic department administrators about Title IX violations that affected her team. These complaints "continued until shortly before" the athletic director decided not to renew her contract. This timing, along with other evidence, could convince the jury that UMD terminated Miller to punish her for advocating for Title IX.  

Hostile Environment Based on Sexual Orientation. The court dismissed the claims of all three plaintiffs that the athletic department cultivated and tolerated a hostile environment on the grounds that they are lesbians.  After acknowledging that these claims were "strong" the court nevertheless dismissed them on the grounds that federal law does not expressly prohibit discrimination on the basis of sexual orientation. (While Minnesota law does prohibit sexual orientation discrimination, the court concluded that it did not have jurisdiction over these state law claims.) This seems like an appealable issue to me. The nearby Seventh Circuit has reasoned that sexual orientation discrimination is a form of sex discrimination, and other circuit courts may be on the verge.  An appeal here could give the Eighth Circuit Court of Appeals an opportunity to get on board with this emerging and civil-rights expanding interpretation of sex discrimination under Title VII and Title IX. 

Equal Pay. The court also dismissed Coach Miller's Equal Pay Act claim. Even though she was paid less than her men's team counterpart, a male, the court nevertheless determined that his job was not comparable to hers because the men's hockey team draws a bigger audience, more revenue, and as a result puts more pressure on him to win.  This outcome is disappointing but not surprising as other female coaches' equal pay act claims have failed due to judges' unwillingness to see equivalence between coaching women and coaching men. Unfortunately, the rationale permits sex discrimination in the marketplace to justify lower salaries for female coaches who work just as hard and have no control over the public's bias.  

Decision is: Miller v. Bd. of Regents of the Univ. of Minn., 2018 WL 659851 (D. Minn. Feb. 1, 2018).

Thursday, February 01, 2018

Community College Coaches Challenge Gender Pay Disparity

Three female coaches in California recently filed a lawsuit against the State Center Community College District to challenge gender discrimination in pay and job responsibilities that affect them as coaches at colleges operated by the District. One of the plaintiffs, Rhonda Williams, is head coach of the Fresno City College women's softball team and assistant coach of its golf team, while two others, Kathleen Kuball and Shannon Jeffries, coach at Reedley College in softball and volleyball respectively. They allege that while they have comparable or even more job responsibilities than their male counterparts, they are paid less because the District calculates compensation based on the number of "duty days" each coach is assigned and then assigning female coaches fewer duty days. They allege that this practice is a part of an overall pattern of discrimination against the women's sports programs in the District. The complaint alleges that this discrimination affects female athletes as well, and that it constitutes a violation of Title IX as well as state law.

These coaches join a growing list of others who have used Title IX and other related law (state law, Equal Pay Act, Title VII) to challenge discriminatory conditions in their employment. In fact, it was other coaches from Fresno -- at nearby Fresno State -- whose famously successful lawsuits in 2006-2007 kicked off what appears to the current trend of coaches going to court to fight for equality. Today, sex discrimination lawsuits filed by coaches are more common than those filed by athletes (probably because coaches incur more economic damages and hold their jobs for longer than students are athletes). Often, however, these lawsuits expose discriminatory practices that affect athletes and can lead to systemic change.

Wednesday, January 31, 2018

Are they or aren't they?: Going to court in a time of rule change

Last week Erin wrote about a civil lawsuit against the government, which rescinded Obama-era guidance on Title IX's application to campus sexual assault, filed by groups who work to end sexual violence. This lawsuit, regardless of its success, illustrates the frustration with the current administration's lack of clarity on how and to what the law applies.

The confusion and frustration is also apparent in how transgender students' claims of discrimination are going to be handled by the Office of Civil Rights (OCR). The Huffington Post has reported on--at best--mixed messages about protecting transgender students. Almost a year ago, the administration said it would not apply Title IX to transgender students, in contrast to the previous administration. But in early summer, a memo internal to OCR said the office should still take complaints of discrimination from transgender students but that they may use their own discretion on whether to take on cases of bathroom discrimination. HuffPo reported several cases that were closed--without any investigation--when employees told complainants that these issues were not in their purview.

It is all very confusing. We do know that OCR's review of  cases featuring access to facilities for transgender students has decreased this past year from the previous one--because there are 40% fewer complaints in this area. This does not mean things are getting better. This means students and their allies do not trust the government. And they have no reason to.

A recent piece on the Daily Beast  discusses how transgender students should proceed in the current moment when we are hearing many and conflicting statements about how and whether transgender students will be protected. And the answer is: go to the courts.

Erin's two posts from last week about transgender students' success (at various levels of the process), though arguably anecdotal, reinforce the validity of this tactic; while the executive branch is broken, we should be looking to the courts.

Tuesday, January 30, 2018

Michigan State Investigated Nassar in 2014

The Atlantic recently reported in more detail about Michigan State's 2014 investigation of Larry Nassar, who was recently sentenced to up 175 years in prison for molesting athletes he worked with in his capacity as doctor for the U.S. gymnastics team, and who also worked for Michigan State's athletic department.  In 2014, Michigan State received a complaint from an athlete. After investigating the complaint, university employees found no evidence of misconduct and cleared Nassar to return to work. As the Atlantic describes it:
The Title IX complaint—in which the former MSU student Amanda Thomashow described Nassar massaging her breasts and vaginal area during medical examinations—was handled by Kristine Moore, the school’s Title IX coordinator and a full-time MSU employee. Moore, now MSU’s Assistant General Counsel, responsible for protecting the school from legal liability, concluded that Nassar’s behavior was “medically appropriate,” a judgment she reached based on interviews with three medical specialists and an athletic trainer. All four had personal ties to Nassar, and all four were employed by Michigan State.
The article also describes how Moore, the Title IX Coordinator, gave Thomashow a sanitized version of her final report, that omitted findings about the "unnecessary trauma" on his patients. That version was not publically released until recently, raising questions about why it was kept private and the effect of its suppression on Nassar's continued behavior. The article also questions why Michigan State chose to investigate the complaint internally, rather than outsource it to a private firm. Title IX officials are required to avoid conflicts of interests when handling Title IX complaints, and outsourcing investigations is a way to ensure that bias and familiarity with the parties does not influence the investigators' and decisionmakers' actions. External investigations are also used when the scope of an investigation is beyond the capacity of a university's staff, or (as I pointed out to the reporter) when the university needs to assure the public that the outcome of the investigation is unbiased. 

Here, there was obviously a pattern of abuse for investigators to discover. At that point, according to another expert quoted in the story, they should have realized that the scope of the investigation and its impact on the university warranted outside help. When I spoke to the reporter about this story, I had to consider the possibility that the failure to make that decision was a good-faith mistake. But I also acknowledged that the way the investigation was handled raises the possibility that university officials acted with intent to protect a renowned and powerful physician on its staff. As Michigan State is now under investigation by the state attorney general, it is possible more evidence will come to light, whether Michigan State's motives were benign or nefarious. 

Friday, January 26, 2018

Lawsuit Challenges Withdrawal of Campus Sexual Assault Policy

A group of organizations that advocate for sexual assault victims filed a lawsuit this week challenging the Department of Education's withdrawal of guidance documents that the prior administration had used to clarify Title IX's application to institutional response to sexual violence.  The complaint points out several of the ways that the 2017 withdrawal of the 2011 Dear Colleague Letter and 2014 Q&A weakens educational institutions' responses to sexual assault claims.  For example, the complaint alleges, the withdrawal prohibits educational institutions from issuing interim measures that adjust complainants' work and class schedules and housing assignments, requires them to consider the impact on a perpetrator's access to education even after the individual has been found responsible for sexual misconduct, permits them to ignore off-campus misconduct when deciding whether the complainant has endured a sexually hostile environment, permits one-sided appellate rights, and many other examples.

The complaint alleges that the agency's motivation is bias against complainants that is rooted in gender stereotypes that women's reports of sexual assault are not credible (a stereotype that persists all the way to the head of the Executive Branch, the complaint alleges).  The agency was also relying on misinformation, the complaint alleges, such as its belief that the 2011 Dear Colleague Letter limited due process protections for students, its belief that the DCL caused schools to treat respondents unfairly, and its belief that the false reports are rampant when research shows they are rare.

The complaint alleges that the withdrawal violates the Administrative Procedure Act because, in relying on stereotypes and false information, it constitutes arbitrary and capricious agency action. Its second count alleges that by disadvantaging victims of sexual harassment, the withdrawal is outside the scope of the agency's authority under Title IX. And it alleges that the reliance on gender stereotypes and disparate impact on women is a violation of equal protection secured by the Constitution's Fifth Amendment.

Civil rights lawsuits like this have a hard road to victory, to be sure. They often fall to threshold questions on standing, mootness, and finality, for example. Other things working against the plaintiffs here are the narrowness the disparate impact doctrine, the limited contexts so far in which courts have recognized gender stereotypes, and the tendency for courts to defer to agencies' decisions that lead to the absence of enforcement. But irrespective of this lawsuit's eventual success in the judicial arena, its impact in the political arena is as important or even more so. The lawsuit signals a marshaling of opposition against the direction the Department of Education is taking on sexual assault and serves as a focal point for political pressure. Additionally, it combats the mythologizing of the 2011 Dear Colleague Letter as the enemy of due process and provides a cogent argument against its withdrawal that will help to educate the public and mobilize political action. I'll be watching and updating the progress of the lawsuit in court, but its extra-judicial influence is important no matter the lawsuit's outcome.

Thursday, January 25, 2018

University of Iowa enters into voluntary resolution

The University of Iowa has entered into a voluntary resolution with the Office of Civil Rights 20 months after the investigation by the agency into a complaint of disparate treatment of male and female student athletes.

The complaint was filed by members of the field hockey team and part of a larger confluence of events which involved the firing of long-time field hockey coach Tracy Griesbaum and the removal of her partner, senior athletics administrator, Jane Meyer from her position immediately after Meyer complained about gender equity in the department.

The University has framed the resolution as a victory noting that the investigation revealed no violations, but only disparities in treatment in the areas of  equipment, recruiting, and locker rooms. The University will have to submit reports in April and June which state how they will address these disparities. They must also, by the end of this month, explain how they were in compliance in 2016-17. I am interested in seeing that report.

Two thoughts on this "resolution." First, claims of victory based on disparities versus violations borders on offensive in part because of the culture of the department (more on that below), the history of inequitable treatment, and because disparities are violations. The law mandates equitable treatment across genders. To have a disparity means there is not equitable treatment.

Additionally, these are disparities that have been around for years and years. In the early aughts I served, as a graduate student, on the Gender Equity Subcommittee charged with assessing equity as part of the NCAA's (now defunct) accreditation process of DI schools. We heard about the same things: lack of recruiting dollars for coaches of women's teams, inequitable facilities and equipment and access to them; and more. There is no amount of elapsed time that results in a disparity becoming a violation (in part because of the semantics I mentioned above). But certainly for Iowa to tout lack of violations when these disparities have been persistent and ongoing, seems inappropriate--at best, and borders on offensive.

Two, I fear that the fact of OCR finding no violations means Iowa is (nearly) good will do little to address the atmosphere in the department in which women--as athletes and administrators--continue to face discrimination. This atmosphere has been maintained--if not created--by athletics director Gary Barta who seems to be doing little to address the situation beyond what he is required to do.

I note here that the first complaint filed by the field hockey team members was about how complaints against female and male coaches were handled differently by the department was never investigated. There are several examples* of members of the football coaching staff endangering the health and safety of their athletes with no repercussions. While the University cannot deny its loss in the Jane Meyer case, which resulted in a jury award, the settlement with Griesbaum means they admit no guilt. This is all to say that there are issues in Iowa athletics that extend beyond locker rooms, equipment, and recruiting. I imagine many at and associated with the university are disappointed in this "resolution."

Also a note about the first article linked above which was the only I found about the resolution agreement: it incorrectly states that compliance with Title IX is measured by the three-prong test. As we have written repeatedly, the test measures one aspect of  compliance: participation. I would argue that these misunderstandings that compliance is only about numbers of athletes is part of the reason why people do not see inequitable treatment (i.e., quality of experience) as a violation/non-compliance.

* Including the choice to keep an injured quarterback in during a bowl game Iowa was losing badly; an example cited by a former ESPN analyst in a story about why he left his job when he felt complicit in the violence done to football players.

Wednesday, January 24, 2018

Courts Address Deliberate Indifference, Anti-Gay Harassment in Recent Cases

A federal district court in Massachusetts recently denied the City of Attleboro's motion to dismiss a claim that the school district violated Title IX by failing to adequately respond to bullying of the plaintiff by her high school peers. The plaintiff was targeted for persistent name-calling, including anti-gay slurs, over several years. The school district argued that the bullying was outside the scope of Title IX because it had nothing to do with the plaintiff's sex, but the court rejected that argument because, "sex discrimination can be based on sex stereotypes. Actionable stereotypes include those based on sexual orientation." The court also determined that a jury could decide that the school district's response to the bullying that it knew about amounted to deliberate indifference. Though the school district allegedly did more than nothing, it is possible to view its response as "clearly unreasonable" because it was inconsistent and failed to escalate as the problem persisted.
 Harrington v. City of Attleboro, 2018 WL 475000 (D. Mass. Jan. 17, 2018).

In another recent decision involving K-12, the Houston Independent School District did successfully dismiss a Title IX claim challenging the adequacy of its response to a report of sexual assault by a 12 grade boy of a 10th grade girl. (He placed her hand inside his pants, they disputed whether it was consensual.) The court determined that the allegations against HISD did not amount to deliberate indifference since it was not clearly unreasonable to defer to the investigation of the school district's police unit. Nor was the school district clearly unreasonable in limiting its response to what was in effect a no contact order, since that order was "mostly successful" in preventing future contact between the two students. Ayala v. Houston Indep. Sch. Dist., 2018 WL 496898 (S.D. Tex. Jan. 22, 2018).

Tuesday, January 23, 2018

OCR Finds Title IX Violations at Buffalo State

Inside Higher Ed reported last week on its recent discovery that the Department of Education's Office for Civil Rights had concluded last November that Buffalo State failed to comply with its obligation under Title IX to promptly and effectively respond to an incident of sexual misconduct about which it had notice,even though the incident occurred off campus and even though the student who allegedly assaulted did not make a formal complaint to the university. This enforcement action serves as evidence that even as OCR politically seeks to distance itself from the prior administration's ramping up of Title IX's application to sexual misconduct (including its withdrawal of the 2011 Dear Colleague Letter), the agency remains in practice committed to a very similar enforcement strategy based on an interpretation of existing regulations and guidance. (Related news about the OCR's recent efforts to improve public access to information about ongoing civil rights complaints, despite having earlier criticized the prior administration for taking steps towards transparency, provides another timely example of OCR's tendency to criticize the prior administration while endorsing its approach.)

According to OCR's findings in the Buffalo State case, a female student-athlete appears to have been sexually assaulted by a male student-athlete in an encounter off campus. The female student, referred to in the findings as the complaint, spoke to university campus police about the encounter after her friend called them to their dorm. The university police called an ambulance as well as the local Buffalo police (which would eventually determine that it lacked probable cause to proceed against the alleged assailant in a criminal proceeding), and later, informed the Title IX Coordinator of the report as well.  The Title IX Coordinator also received information about the incident from the complainant's coach, who was informed by the complainant's mother about the incident the day after it happened. Yet despite its knowledge of the incident, neither the Title IX Coordinator nor the university police conducted an investigation into the incident. OCR concluded that this failure to investigate amounted to a violation of Title IX. It disagreed with the university that it was justified in not going forward with any kind of response by the facts that (1) the incident took place off campus, (2) neither the location of the incident and the alleged assailant were part of a pattern of sexual misconduct, and (3)  the complainant did not file a formal complaint seeking disciplinary action against the alleged assailant. Rather, OCR insisted that university officials had enough information to at least conduct interviews of the complainant, alleged assailant, and witnesses. Additionally, its findings included facts that attribute the complainant's failure to file a formal complaint to some shortcomings on the university's part.  The information she received about the disciplinary process was at times incomplete, and at other times confusing. Moreover, the complainant believed after talking to the Title IX Coordinator that the process wouldn't necessarily protect her from seeing the alleged assailant in class, which was her primary concern.  She had the impression the Title IX Coordinator was trying to talk her out of moving forward in that direction.

OCR also faulted the university for failing to provide the complainant with interim measures. The morning after the incident, the complainant's mother called her coach and requested assistance ensuring that the complainant's anticipated absences would be excused by her professors, and in getting the alleged assailant moved from a class in which both students were enrolled, and the complainant later additionally requested a "no contact" order.  Despite further inquiries into these measures by the complainant, her mother, and their advocate, in the end, the the university provided no assistance negotiating excused absences with her professors, leading to the professors' conclusions (contrary to university policy) that the absences were not excused.  Nor did they issue a "no contact" order.  And while they did initiate the alleged assailant's removal from the course, they did not inform the complainant that he had stopped attending so that she would feel safe to return. The university's failure to assist the complainant led to her withdrawal from the university.

Buffalo State is obligated to improve its staff training on responding to incidents of sexual harassment and misconduct. Additionally, it will reimburse the complainant for expenses she incurred besides her already-reimbursed tuition, the semester she withdrew.  

Monday, January 22, 2018

Title IX Claims Dismissed in Two Discipline Cases

In two separate cases, federal district courts ruled that the plaintiffs who were suing their schools after being expelled for sexual misconduct did not satisfactorily allege or support allegations that the school's disciplinary process was tainted by gender bias in violation of Title IX. One of the plaintiffs, however, succeeded in alleging breach of contract claims and can continue to litigate on those grounds.

In the first case, a male student was dismissed from the nursing program at Del Mar College in Texas after multiple incidents misconduct that included sexual comments and gestures made to his classmates.  The court summarily dismissed his claim that the school treated him unfairly compared to female students because he could not show any example in which the college failed to discipline a female student who had engaged in similar misconduct. Nor could he sustain his claim that the college dismissed him in retaliation for complaining about sex discrimination in the disciplinary process, because he disciplinary process that led to his dismissal commenced before his complaint was filed.  Gudgel v. Del Mar College, 2018 WL 472829 (S.D. Tex. Jan. 17, 2018).

In the second case, a male student was expelled from Rider University in  New Jersey after a female student alleged that they had a sexual encounter while she was too intoxicated to consent. He alleged that that the Dean of Students and others involved in the disciplinary process were biased against   him. However, this did not amount to an allegation that the university discriminated against him because of sex, the court reasoned, since at most he could demonstrate only bias in favor of complainants over respondents. Nor did he successfully allege that the university disciplined men more harshly than women for the same conduct. Though the plaintiff complained that his male friend was more intoxicated than another female student when they had a sexual encounter in the same room, he did not allege that the male student sought to file a complaint about her conduct and was prevented from doing so.

However, the court ruled that even though the university's alleged bias did not violate Title IX, it could, if proven, sustain a claim for breach of contract and the related covenant of good faith and fair dealing. The university's sexual misconduct policy, which operates as a contract between the university and its students, promises an impartial investigation. The plaintiff alleged this promise was breached because the investigator ignored inconsistencies in the complainant's statements. Additionally, he alleged that the university did not adhere to its policy of providing an impartial tribunal to adjudicate his case because its members all reported to the Dean of Students, whom plaintiff had alleged had made up his mind against him. As a result of the ruling, the plaintiff has the opportunity to take discovery and gather evidence in support of these allegations. If at the end of discovery the court finds that evidence insufficient to support the claims, it could potentially dismiss them on a motion for summary rather than allow them to proceed to trial. A settlement, of course, is always a possibility as well. For recent examples of settlements in cases like these, see here (Notre Dame) and here (Yale).  Doe v. Rider University, 2018 WL 466225 (D.N.J. Jan. 17, 2018).

Sunday, January 21, 2018

Larry Nassar, rape culture, and blogging in 2018

This post is going to be a little more personal than others--or perhaps more accurately it will acknowledge the personal aspects of doing this blog and work; something I have been thinking about for a few months.

This past week the case of former USA Gymnastics doctor Larry Nassar dominated sports and non-sports news. We have not covered this case, in part, because it initially was outside our purview given the focus on Nassar's role as a doctor for a national governing body, USA Gymnastics. Most of the coverage this week has continued that focus, but there have also been mentions of the role of Michigan State University in allowing the abuse to continue as they ignored complaints about Nassar that began in the early 1990s. Journalists and activists, including some of our colleagues, have done and continue to do an excellent job covering all the aspects of this case. *

In terms of MSU's role, I see this as a pivotal moment in how seriously we as a culture and intercollegiate sport as an institution are going to take the sexual abuse of young women. This situation is not entirely dissimilar to what happened at Penn State but to date I have not heard the Nassar case discussed in the same way despite the fact that the abuse was ongoing, systemic, occurred in campus facilities, and was made known to people who could have stopped it. (See the column by Jessica Luther linked below as the one exception I found as I was editing this post.) Is the NCAA going to step in? Are administrators going to be fired? This is abuse and cover-up on a massive scale; I will not say it is "worse" than Penn State (playing that game helps no one) but certainly farther-reaching because of Nassar's role with USA Gymnastics. Who will be held responsible and in what ways? This case should not be over when sentencing ends. (A link I posted below addresses some of these issues.)

My own attention to the case has been admittedly a little distant. I have been following it but not closely. I have mentioned it in my classes but not assigned readings or had in-depth discussions. That is likely to change this semester, but I am still working out the details. I saw snippets of the hearings in the gym, channel surfing, and on videos FB friends have posted. I finally, last night, sat down to watch all of Aly Raisman's statement to the court.

This is all to say that these stories--the flood of stories--have created so many different responses and reactions; the range of which I will not attempt to articulate here but certainly include empowerment and awareness. My own responses have varied, and I am speaking of over the years not just the last few months. We have been writing about sexual assault for years now. There are cases to which I have become very invested for one reason or another. Stories which have stuck with me. Injustices--so many injustices--which anger, and frustrate, and sadden me. These feelings remain even after I hit the publish button.

They are with me when I go to the liquor store and see young college men filling carts with pails of margarita mix, boxes of pink wine, and handles of liquor. I wonder and worry what is going to happen that night just up the hill from where I live. They are with me when I look at my students, whose lives are so very different than mine. I wonder what they have been through, what negotiations they engage in every weekend. In the former situation I feel mostly helpless. In the latter, I make sure everyone knows whether because of a sticker on my door or my words in class, that I am there. Unfortunately being there usually means being there after the fact.

Sexual assault is not new and the activism to address and prevent it is not either, which likely means that the frustration and weariness is also not new. While I am not one for catchphrases, the concept of persistence is certainly at the forefront of my thinking these days. I also realize that it is not something everyone is capable of and certainly not all the time. And I am grateful for everyone who is writing and protesting and testifying and doing this work.

I am saying this now and here not to detract from the Nassar case; I believe it is all related. Rather I am using it to explain in part why I blog and what my intentions are going forward. In the past year plus, the blogging has not been so prolific and while there are a number of reasons for this, one is that these posts are more difficult to write.

I am not going to share the entire Title IX Blog origin story, but when we started this in 2006 (!!) it all felt easier--and simpler. Teams getting cut, facilities, game times, practice schedules that all favored men's teams--these things were clear cut. Even my cultural contextualization of the inequities was not especially difficult. As we saw more and more retaliation cases and former female coaches suing their institutions, things got slightly more complicated but more so because of the evidence available, not the law.

How the law is being interpreted is changing. This makes things more difficult. Also, cases are more complicated which makes trying to interpret and then write about them difficult; and this takes time because I aim to do more than just report the facts as they have been presented in other media sources.

I will continue to write about the "easy" things, but my focus for 2018 is to engage thoughtfully and critically with the harder things, primarily college sexual assault and the intersections with athletics, and the protection of transgender students. These issues are personal for me. While I am an educator and scholar (things perceived as professional though also personal for me), I am also a queer woman who knows many survivors and who loves people who cannot always use bathrooms and other spaces safely.

I applaud Nassar's victims who have been able to achieve a feeling of empowerment, and I feel for and sympathize with others who are not there and may never be and hope they know that everyone's process is different and valid.

Finally, I want to extend this virtual thank you to all the activists, scholars, lawyers, administrators, and others who are doing work on Title IX, gender and sexual orientation discrimination, and sexual assault. While at times it may not seem necessary for me personally to write another piece about the case that everyone else is talking and writing about, the larger movement and the people who comprise it remind me that every word is important.

* Nancy Hogshead-Makar: How to Stop Sexual Abuse in Sports; law professor, Michael McCann on legal ramifications; Jessica Luther on Sandusky vs Nassar;

Saturday, January 20, 2018

SMU Rowers' Lawsuit Challenges Inequitable Medical Treatment

In a lawsuit filed yesterday, eight current and former members of the women's rowing team at Southern Methodist University allege that the university violated Title IX by giving female athletes less medical attention than their male counterparts. The lawsuit, which also includes a negligence claim, seeks damages related to hip injuries that they suffered as a result.

According to the press, the plaintiffs allege that athletic department trainers and medical staff failed to diagnose their injuries and treated them inadequately once they had. The injured rowers were also silenced by a culture of "intimidation and shame," they claim. One rower gave an example that she was to injured to row, walk, sit or stand for extended periods of time.  Instead of seeking medical help, her coach asked her if her mattress was too firm. The rowers suffered labral tears in their hips, which they allege is a rare injury in the sport of rowing, but which afflicted up to fifteen SMU rowers. The high incidence rate, they claim, resulted from the improper rowing technique that their coach employed, combined with the lack of medical attention. One rower told the press, "I am almost positive that if there were 15 football players or 15 basketball players that had the same injury by the same coaches in eight years, I do not believe [SMU] would have let that go on." 

Title IX requires athletic departments to not only provide an equitable number of opportunities to male and female athletes, but also to ensure that men's and women's programs receive equal treatment. Title IX regulations itemize a list of factors that comprise the equal treatment analysis, and access to medical treatment is included on this list, along with things like facilities, uniforms, equipment, scheduling, quality of coaching, and others. In this case, the plaintiffs allege, SMU added rowing to balance the numbers, but did not follow that up with the necessary investment of resources needed to ensure equal treatment. 

It's common for judicial and administrative cases involving equal treatment to uncover evidence of inequitable access to medical treatment, but I'm not aware of any other lawsuit seeking damages for specific injuries that resulted from the inequality.