Monday, January 22, 2018

Title IX Claims Dismissed in Two Discipline Cases

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

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

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

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

Sunday, January 21, 2018

Larry Nassar, rape culture, and blogging in 2018

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, January 20, 2018

SMU Rowers' Lawsuit Challenges Inequitable Medical Treatment

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

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

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

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

Friday, January 19, 2018

Fraternity Rape Title IX Claim Against Brown Survives Motion to Dismiss

The federal district court in Rhode Island recently denied Brown University's motion to dismiss a Title IX claim in which a female student alleges Brown is liable for damages as a result of the university's response to her having being drugged and raped at a fraternity. According to the plaintiff,  called Jane Doe in the case, one student ("Smith") mixed her drink; later on, another student ("Jones") had sex with her while she was incapacitated. The next morning, Doe received medical treatment at the university health center. At Doe's request, the health center sent out samples of her blood and urine for drug testing at the local hospital, which was how she discovered she had been dosed with the date-rape drug, GHB. The university initiated three disciplinary proceedings: against Jones, Smith, and the university's local chapter of the Phi Kappa Psi fraternity. But when university-retained medical expert concurred with Smith's expert that the hospital's drug testing had been faulty, the university responded by dropping the charges against Smith and the fraternity. (Jones had already been found "not responsible," and Doe's appeal was denied.)

Doe's subsequent lawsuit against Brown included several claims that the district court dismissed in response to a motion by Brown.  But the court retained the Title IX claim and allowed it proceed to the discovery phase of litigation because Doe's allegations, if proven, could be sufficient to convince a jury that Brown is liable under Title IX.  Specifically, Doe alleged that Brown was responsible for the fact that the hospital's drug test was later undermined because university officials continued to send the blood and urine samples "to a laboratory incapable of conducting definitive tests for date-rape drugs – despite Brown's knowledge that other female students reported being drugged at campus events." This allegedly allowed Brown to frame the decision to drop the case against Smith as a matter of insufficient evidence, and hide the fact that it was actually doing it as a favor for Smith's father, a university trustee.  Doe alleges that Brown's actions exonerating the fraternity and the two students led to harassment from other students, including a leaflet campaign by the fraternity, that the university did not address.  

Universities often succeed at dismissing Title IX claims like this one because the standard that plaintiffs must satisfy -- that the university's response amounted to deliberate indifference -- is a difficult one to meet, particularly when the university engaged in some kind of disciplinary response. I think the plaintiff succeeded here in getting over that preliminary hurdle because cover ups like the one she alleged here in favor of the trustee's son, are easy to see as "deliberate."  It will be interesting to see if the parties continue to litigate or whether they settle now that plaintiff has the opportunity to amass evidence in support of the allegations she has made.

Decision: Doe v. Brown University, 2018 WL 443504 (Jan. 16, 2018).
Alpha Chapter distributed leaflets to the University community that disclosed confidential information regarding Doe's allegations

Alpha Chapter distributed leaflets to the University community that disclosed confidential information regarding Doe's allegations

Without this evidence, according to Doe, Brown had an easier time convincing the campus community and general public that its reason for discontinuing its disciplinary process concerning Smith was a lack of evidence, and not in furtherance of a secret design to drop the case as a favor to Smith's father, a University trustee – a decision that was at least curious given that Brown officials had found in the proceedings against Alpha Chapter that Smith had spiked Doe's drink.


Wednesday, January 17, 2018

Title IX Prompts SIU to Add Women's Soccer

Recently Southern Illinois University announced that it would add a women's soccer team in order to resolve questions about its Title IX compliance. Last year, the university's cost-cutting move to eliminate its men's and women's tennis teams along with several scholarships in men's swimming, prompted the filing of a Title IX complaint with the Department of Education's Office for Civil Rights. Cutting viable women's teams, even when a men's team is cut simultaneously, often violates Title IX because the school can no longer claim that is continuing to expand opportunities for the underrepresented sex (the second of the three-part test), or that is fully and effectively satisfying the interests of the underrepresented sex (the third of the three-part test).  A school that cannot comply with either of those tests must therefore show compliance with the proportionality standard (the first part of the three-part test), or risk enforcement action by the OCR. Most schools offer disproportionately higher percentage of opportunities to male than female students, and therefore have difficulty meeting this test. Indeed, publically available data about SIU's participation and enrollment suggests it does not satisfy the proportionality standard, since women constitute 46% of the student body but receive only 39.6% of the athletic opportunities.

This disparity existed before the tennis cuts as well, but at least then SIU could more plausibly claim that women's interests were fully satisfied, and thus that it demonstrated compliance under part three. Now, there is clearly an unmet interest in tennis, which some might suppose should be remedied by restoring the women's tennis team. But a university can decide which part of three-part test it demonstrates compliance -- any one of them will satisfy OCR. So adding women's soccer is a viable compliance strategy if in the end the percentage of female athletic opportunities rises to to 46%. In this spirit, SIU has pledged to OCR that it will add a women's soccer team that will have its inaugural season in 2019-20. 

Yet, adding soccer alone probably isn't going to be enough to bring the university into compliance. Even if the roster provided 30 opportunities, which is probably too many, that would only raise women's share of athletic opportunities to 43%.  This explains why the university has also committed to expanding opportunities on its existing teams, "to the maximum extent feasible... while still ensuring meaningful intercollegiate athletic opportunities are being provided for all team members." Done right, this will mean investing more resources to ensure the existing level of quality offered by current programs are not diluted as more players are added. If the university is seen to be padding its rosters on women's teams, it runs the risk of not being able to count those surplus opportunities in its proportionality calculation. The reporting requirements the university has agreed to will help OCR oversee this and the other aspects of the compliance agreement.

Saturday, January 13, 2018

Court Rejects Parents' Arguments That Privacy Requires Transgender Students' Exclusion from Bathrooms

Township High School District Number 211 in Palatine, Illinois, is again in the news for recent developments in its legal struggle over transgender-inclusive locker rooms and bathrooms. In 2015, the Department of Education found that the school district's policy of excluding a transgender girl from the girls' locker room violated Title IX, a precedent-setting decision at the time. In response, the school district had to enter into a resolution agreement that permitted the student's access to the locker room.

Subsequently, the school district came under fire again, this time, in the form of a lawsuit filed by an association called "Students and Parents for Privacy." The association sued the district, arguing that its agreement to permit a transgender girl to use the girls' locker room violated cisgender-female students' constitutional right to privacy and constituted sex discrimination against them, in violation of Title IX. The association also moved for a preliminary injunction that would require the school to bar transgender students from gender-appropriate facilities while the litigation was pending. After a magistrate judge recommended that the district court deny this motion, the association tried to get the district court to reject the magistrate's recommendation, but last week the district court decided that it to would deny the association's preliminary injunction.  

In particular, the district court rejected the association's argument that the magistrate's opinion conflicted with old case law in the Seventh Circuit (a jurisdiction that includes Illinois) that narrowly construes the meaning of sex in cases applying the sex-discrimination provisions in Title VII to transgender plaintiffs. The district court points out that very recent Seventh Circuit decisions (that we have blogged about here and here) make clear that the appellate court no longer embraces the same narrow view. Instead, the district court is bound to follow the appellate court's updated position that "federal protections against sex discrimination are substantially broader than based on only on genitalia and chromosomes."

Moreover, the court reasoned, the association is not entitled to a preliminary injunction because they will suffer no irreparable harm by the fact that the high school will continue to operate under a policy that permits transgender students to use facilities according to their gender identity. Any student who fears their privacy would be impaired by encountering a transgender student in the bathroom or locker room simply has to access existing and available single-user facilities. That these facilities might be more remotely located did not constitute serious irreparable harm in the court's view.

Wednesday, January 10, 2018

School District Settles Transgender Bathroom Case for $800,000

The school board in Kenosha, Wisconsin, voted to settle its litigation with its former student, Ash Whitaker, who sued the school after it refused to permit his access to the boys' locker room and restrooms because he is a transgender male. Whitaker successfully obtained a preliminary injunction that granted the facilities access he was seeking while his litigation was pending; the decision of the district court in favor on this matter was affirmed by the Seventh Circuit Court of Appeals in one of the most important decisions to date on the rights of transgender students under Title IX and the 14th Amendment's Equal Protection Clause.

Soon thereafter, however, Whitaker graduated from high school and the focus of the case changed from what the school was required to do for him going forward to whether the school was liable for damages because of the discrimination that had already occurred. This aspect of the litigation will now end as well as a result of the $800,000 settlement voted on by the school board this week. $650,000 of that amount will reportedly cover Whitaker's attorneys' fees and costs. School officials told the press that the settlement was not an admission of liability for discrimination but a strategy to avoid the costs of ongoing litigation. Whitaker told the press he was happy to have the litigation behind him so that he could focus on being a college student.