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.
Wednesday, June 27, 2018
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).
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).
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.)
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.)
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