Wednesday, February 14, 2018

NSF Will Require Grant Applications to Disclose Sexual Harassment

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

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

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

Saturday, February 10, 2018

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

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

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

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

Friday, February 09, 2018

Nonbinary Student Forced Off Boys' Teams

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

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

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

Wednesday, February 07, 2018

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

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

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

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

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

Tuesday, February 06, 2018

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

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

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

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

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

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

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