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!

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).

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. 

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.

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.