Friday, August 31, 2018

Baylor is irredeemable

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

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

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

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

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

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

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

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

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

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

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

And this is what is so difficult about justice and sexual violence — the repercussions of the crime can last a lifetime. Satisfying justice may not be possible, but we can certainly do better given that all too often, victims of sexual harassment and violence receive no justice at all. 
We spend so little energy thinking about justice for victims and so much energy thinking about the men who perpetrate sexual harassment and violence. We worry about what will become of them in the wake of their mistakes. We don’t worry as much about those who have suffered at their hands. It is easier, for far too many people, to empathize with predators than it is to empathize with prey.

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

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

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

Wednesday, August 29, 2018

Proposed New Sexual Misconduct Rule Imports Deliberate Indifference Standard

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

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

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

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

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

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

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

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


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

Tuesday, August 21, 2018

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

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

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

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

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

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

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

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

Wednesday, August 01, 2018

Florida School Loses Bathroom Discrimination Case to Transgender Student

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

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

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

Tuesday, July 31, 2018

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

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

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

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

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

Saturday, July 28, 2018

Another Court Upholds Transgender Students' Bathroom Rights

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

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

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

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

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

Friday, July 27, 2018

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

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

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

The agency also expressed "concerns" that the university's policies that govern the disciplinary process for sexual misconduct provide equal rights to the respondent to present evidence and receive information about the proceeding. Specifically, the agency was concerned about procedural requirements under which:
  • complainant is solicited for names of potential witnesses, though the policy does not say to do the same for respondent
  • complainant is given information that retaliation is prohibited under its policy, but the policy does not say to also give respondent this information
  • complainant is given the opportunity to provide input about the appropriate resolution path --i.e., whether the university uses an informal method of resolution instead of the formal process --  but the policy does not say to get input from the respondent.  
I agree that the first two bullet points are aspects of "equitable" procedures as the regulations require. The third one could be problematic depending on what the university does with the input it receives from the respondent. Clearly the selection of formal disciplinary procedures can't be subject to the respondent's consent; that would be inequitable to the complainant.  But such a result is not a necessary consequence of permitting the respondent to give "input" about this choice.

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

Saturday, July 21, 2018

Cuts at UNM Still Fall Short of Title IX Compliance

Earlier this year I posted about the University of New Mexico's decision to publish its consultant's report that, I thought, bent over backwards to reach the conclusion that cutting sports is necessary for Title IX compliance. Interestingly, however, the university's announcement today that it will cut two men's and two women's teams does not put the university into compliance.

The university will eliminate men's soccer and skiing, a total of 38 opportunities. This will bring the total number of men's opportunities from 319 to 280. On the women's side, the university will eliminate beach volleyball and skiing, a total of 25 opportunities. This will leave women with 218 opportunities, compared to the 243 they have now.  Women will therefore receive 43.8% of the athletic opportunities, but because women make up 54.9% of the undergraduate student body, the university is still a long ways off from proportionality.  In addition, by cutting two existing women's teams, the university has likely disqualified itself from compliance under either of the alternative tests. Cutting women's teams is the opposite of expanding opportunities for the underrepresented sex, the second compliance test. And it creates unmet interest and ability among the underrepresented sex, which demonstrates lack of compliance with the third test. 

The university's plan also calls for phasing out diving from the women’s swimming and diving program, significantly reducing men’s track and field participation slots, and increasing participation opportunities in some women’s programs. However, there is no way that these modest changes will close the proportionality gap. There are 5 divers on the swimming and diving team. And most of UNM's other female sport rosters already exceed the NCAA Division I average squad size. (One sport, women's soccer, has 40 players despite an NCAA average of 28!) The only two teams that don't exceed the average would reach the average by adding only 1 player to the roster. Thus, the university's roster management plan --- unless it plans to inflate rosters with opportunities that it won't legally be able to count under Title IX --- will probably involve a net loss of female athlete opportunities, rather than a gain. That means, the university would have to make up the proportionality gap by cutting over 100 men's opportunities, according to my math. Yet, the men's track team doesn't even have that many on the roster.

By cutting women's teams, UNM is making its compliance challenges worse, not better. This result is not consistent with its pointing at Title IX as a key factor in the decision to downsize its athletic programs in the first place.

Friday, July 20, 2018

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

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

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

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

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

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

Tuesday, July 17, 2018

Baylor settles another case (and more)

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

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

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

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

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

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

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

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


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

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

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

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

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

Monday, July 02, 2018

Advocates Petition for Correction of 2017 Dear Colleague Letter

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

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

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

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

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

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

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

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

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

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

Wednesday, June 27, 2018

OCR Finds Title IX Violations at UNC Chapel Hill

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

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

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

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

Friday, June 08, 2018

Decision Roundup: Deliberate Indifference Edition

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

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

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

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

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

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

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

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

Thursday, June 07, 2018

Decision Roundup: Displined Student Edition

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

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

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

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

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

Tuesday, June 05, 2018

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

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

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

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

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

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

Wednesday, May 23, 2018

District Court Sides With Gavin Grimm

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

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

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

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

Monday, May 21, 2018

A Roundup of Recent K-12 Discpline Cases

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

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

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

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

Friday, May 18, 2018

Florida Atlantic Accused of Fudging Athletic Participation Data

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

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

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

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

Wednesday, May 16, 2018

Michigan State Settles With Nassar Victims for $500 Million

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

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

Wednesday, May 02, 2018

Eighth Circuit Rejects University's Sovereign Immunity Defense

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

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

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

Monday, April 23, 2018

OCR Will Now Dismiss Complaints By "Frequent Flyers"

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

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

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

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

Thursday, April 12, 2018

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

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

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

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

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

Tuesday, April 03, 2018

Big Payouts--Not to Victims

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

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

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

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

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

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

Saturday, March 31, 2018

Roundup of Recent Disciplined-Student Cases

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


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

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

Friday, March 30, 2018

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

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

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

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

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

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

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

Wednesday, March 28, 2018

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

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

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

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

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

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

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

Sunday, March 18, 2018

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

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

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