Litigation Update in St. Cloud State Athletics Case

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

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

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

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

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

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

Second Circuit Rules Sex Discrimination Covers Sexual Orientation Discrimination

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

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

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

Wichita State VP Claims Retaliation for Investigating Campus Rape

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

The court denied the university's motion to dismiss most of Robinson's suit and concluded that his complaint satisfactorily alleges the elements of a retaliation claim under Title IX. The element disputed in this case is the requirement that a retaliation plaintiff allege that he engaged in conduct protected by the statute. Generally such protected conduct may include advocating internally for Title IX compliance. However, when Title IX compliance is part of one's job duties, efforts to internal secure compliance do not count as protected conduct. Yet, Robinson's complaint included allegations that his Title IX advocacy had gone beyond the scope of his job as the court explained:

Had the Complaint in this case merely alleged that plaintiff warned WSU that it could face liability for failing to investigate alleged sexual assaults, the court might enter judgment against plaintiff on Count I. ... But here, the Complaint alleges substantially more than that. It alleges that plaintiff started two investigations and filed a complaint. The Complaint thus sufficiently alleges that plaintiff crossed the line from being an employee merely performing his job as Title IX compliance overseer and actively assisted others in asserting Title IX rights.... These allegations preclude the court from applying the manager rule to plaintiff’s claim and thus preclude judgment on the pleadings. 

The court also denied the university president's motion to dismiss Robinson's due process claim against him (though it did dismiss some state law claims).  That means the retaliation and due process claims will proceed to the discovery phase of litigation and, barring settlement or summary judgment, eventually to trial.  Yet regardless of what happens to this case moving forward, administrators working on Title IX issues will find this preliminary ruling helpful and reassuring on the question of what constitutes protected conduct as a matter of law. 

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

In Oregon School District, Girls Must Pay More to Play

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

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

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

NSF Will Require Grant Applications to Disclose Sexual Harassment

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

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

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

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

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

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

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

Nonbinary Student Forced Off Boys' Teams

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Community College Coaches Challenge Gender Pay Disparity

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

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