Wednesday, October 24, 2018

Two Recent Summary Judgment Decisions in Disciplined-Student Cases

When a university is sued by a student who has been disciplined for sexual misconduct, it will typically file a motion to dismiss, arguing that the allegations in the plaintiff's complaint -- even if true -- are not legally sufficient to sustain a claim under Title IX or whatever source of law the plaintiff is alleging to have been violated. If the university wins on this early-stage motion, the case goes away before it ever really gets off the ground. But if the university's motion does not succeed, the plaintiff has the opportunity to take discovery: to gather evidence that it will use to support the allegations in the complaint when the case gets to trial. This includes taking depositions of university officials and requesting documents from them as well. At the close of discovery, the university can again seek to have the case thrown out -- this time, on a motion for summary judgment -- but the discovery process itself can be enough of a hassle that universities will chose to settle before the case gets this far.  That is why the volume of decisions on motions to dismiss is so much higher than decisions on motions for summary judgment.  When summary judgment decisions come out, this blogger takes notice!  Here are two recent ones: one where the university loses, and one where the uni
university wins.

Rossley v. Drake University (university loses). Drake University in Iowa moved for summary judgment to end litigation over a former student's claim that the university violated Title IX when it expelled him for sexual misconduct. The district court granted summary judgment on the plaintiff's erroneous outcome claim, rejecting all of plaintiff's arguments that university officers were biased against him because of his sex. The mere fact that the university found against him, a male, is not evidence of gender bias. Though some courts have said that a disciplinary decision that goes against the weight of the evidence can be a plausible basis for an allegation of gender bias, summary judgment is where the plaintiff must stop alleging and start proving. The court also rejected the notion that a university's use of "victim-centered" or "trauma-informed" process is per se gender biased, when such university uses gender neutral language in its policies. Additionally, the court rejected the idea that the 2011 Dear Colleague Letter served as evidence of gender bias, since there is no evidence that the letter motivated university officials to react in ways that were biased against male students.

However, the court denied Drake's motion for summary judgment on the plaintiff's Title IX claim based on selective enforcement.  In this case, the plaintiff alleged that the university deployed its investigatory and disciplinary process in response to the complainant's allegations against him, they failed to the same in response to his allegations against her. The court affirmed that if the plaintiff and his accuser were similarly situated in their respective allegations, than the different treatment they received would violate Title IX. However, there are disputed facts about whether the plaintiff and the accuser were similarly situated, thus precluding a summary judgment decision and necessitating fact-finding by the jury. He did not file a formal complaint against her, which could explain why they didn't take his allegations seriously, except that he alleges university officials dissuaded him from filing a complaint. To get to the bottom of these disputed facts, the jury needs to hear the relevant testimony and decide for itself whether the university treated his allegations less seriously than hers despite their material similarity.

Ayala v. Butler University.  Butler University, on the other hand, won summary judgment of Title IX (and other) claims filed by a student challenging his expulsion for sexual misconduct. Though the male plaintiff argued that the university's process was tainted by gender bias, the court found nothing in evidence that could convince a juror of that. The investigator's "persistent questions... about verbal consent" at most suggest bias towards victims, not bias towards women or against men. And evidence that Butler treated a male respondent in another case with a lesser sanction doesn't suggest any kind of pattern of treating male respondents differently because of their sex. The court easily dismissed this plaintiff's case against Butler.

Monday, October 22, 2018

HHS Leading Charge to Narrowly Define Sex In Disregard of Transgender Identities

According to an internal administration memorandum obtained and reported on by the New York Times, the Department of Health and Human Service's Office for Civil Rights is working on a proposed rule that would narrowly define sex for purposes of Title IX. Under the memo's proposed definition, sex means "a person’s status as male or female based on immutable biological traits identifiable by or before birth.” And, “The sex listed on a person’s birth certificate, as originally issued, shall constitute definitive proof of a person’s sex unless rebutted by reliable genetic evidence.”

The apparent goal of such a definition is to limit the protection Title IX affords to transgender students, particularly in facilities like bathrooms and locker rooms. HHS's effort is responsive to the recent wave of judicial decisions that have found in favor of transgender students asserting their civil rights in that context. However, I think it would still be possible to successfully challenge transgender discrimination in the courts, even if this proposed definition becomes part of HHS and other agencies' Title IX regulations -- for two reasons. First, many transgender students who have succeeded in the courts have won on equal protection grounds as well as Title IX, and the administration's definitions under Title IX or other statutory law cannot alter the Constitution or the courts' interpretation of it. Second, defining "sex" in a narrow and biological manner does not necessary foreclose a judicial interpretation of "sex discrimination" that covers discrimination against a student because they are trans. The way some courts view it, trans discrimination is sex discrimination because it is motivated by the fact that one's biological or birth-assigned sex is not consistent with one's gender identity and expression. A regulatory definition of sex that is limited to biological and birth assigned traits does not necessarily undermine this view.

One other point: if you are wondering what HHS has to do with Title IX, yes, it is unusual for that agency to step out ahead of the Department of Education on Title IX policy, given ED's primary responsibility for administering Title IX. While every agency that administers a program that provides federal funding to education institutions is responsible for ensuring that it is not subsidizing sex discrimination with taxpayer dollars, they typically do so by taking the lead from the Department of Education and adopting its regulations as their own. ED currently does not have rule or policy that defines sex, having withdrawn the previous administration's pro-transgender policy earlier in this president's administration. ED seems to have its hands full dealing with the sexual misconduct rules, and/or lacks the political motivation to put transgender rights on the top of its agenda. HHS on the other hand, whose Office for Civil Rights is lead by a known opponent of LGBT rights, has been consistently targeting transgender rights for the duration of this administration -- such as by scaling back nondiscrimination protections under 1557, and by promulgating rules that would let health care providers opt out of providing care to transgender patients when they have a religious objection to doing so. In conclusion, the big questions in light of this news are: to what extent will HHS's anti-trans agenda be permitted to infect the entire administration, and will the administration's efforts undermine the effort to secure transgender rights through the federal courts?  

Wednesday, October 17, 2018

Eastern Michigan Must Reinstate Women's Teams

A federal district court in Michigan has issued an injunction against Eastern Michigan University that will prevent it from going forward with its plans to cut women's softball and tennis teams.  The university had announced plans last year to cut those teams, along with two men's teams, wresting and swimming and diving.  However, as the court correctly determined, cutting the same number of men's and women's teams is not gender equity when men have disproportionately more athletic opportunities to begin with, and continue to have a greater share of opportunities once the cuts have taken place.

The undergraduate population at EMU is about 60% female, yet the distribution of athletic opportunities favors men, 56:44 percent. Accordingly, EMU did not try to claim compliance under the proportionality prong. Nor did it argue that it complied under the third test that calls for the absence of unmet interests and abilities among members of the underrepresented sex -- a decision the court validated by pointing out that EMU's elimination of women's programs creates the very unmet interest the third compliance prong requires to have been satisfied.

Instead, EMU argued that the average number of athletic opportunities over the last five years was greater than the average number over the five year period before that, thus satisfying compliance under the second compliance prong, which calls for "history and continuing practice" of program expansion for the underrepresented sex.  Of course, the court saw through the this arbitrary comparison of averaged data, which only served to mask the fluctuation up and down of the number of female athletic opportunities. This compliance prong calls for steady growth, which EMU's numbers did not show. In addition, EMU's most recent addition of a women's team was rowing in 2000 - hardly evidence of continuing practice. Though EMU also tried to claim credit for increases to female athletic opportunities under its roster management plan -- i.e, expanding the rosters of its existing women's teams --  the court rejected this as well because EMU could not show that such increases were "responsive to the developing interests of the underrepresented sex" as this compliance prong requires. Upon concluding that the plaintiffs had demonstrated likely success on the merits as well as the other factors consider when deciding on a preliminary injunction, the court ordered that the university must reinstate the eliminated teams. 

EMU's argument about compliance under the second prong was so astonishingly weak in my opinion, that the outcome here was hardly surprising. The court's thorough analysis, however, is helpful to addressing misconceptions about the second compliance program. In addition, the court's order to reinstate eliminated teams should provide a cautionary tale for any college athletic program that thinks cutting an equal number of men's and women's teams is equitable when women are already seriously underrepresented.

Decision: Mayerova v. Eastern Michigan Univ., No. 2:18-cv-11909 (E.D. Mich. Sept. 27, 2018).

Wednesday, October 10, 2018

OCR Investigates Complaint Against School's Transgender Bathroom Poicy

The Department of Education's Office for Civil Rights has opened an investigation into the school district in Decatur, Georgia, based on allegations that the district's transgender-inclusive bathroom policy lead to the sexual assault of five-year-old cisgender girl in the girl's bathroom at one of the district's elementary schools. The complaint also alleges that it compromises the privacy of girls by exposing them to "the problem of Peeping Toms."

Here is more detail about the alleged assault, as described in the the complaint:
[I]n November 2017, a boy known to the school administration to identify as “gender fluid” (“the Assailant”) was permitted—pursuant to and as a direct result of the Policy—to enter the girls’ room while [Victim] was there. While the two young children were in the girls’ restroom alone together, the Assailant confronted [Victim], pushed her against a wall, and forcibly touched her genitals despite her protests, causing her both pain and fear. This sexual assault (“the Assault”), which was a foreseeable result of the Policy and would not have happened but for the Policy, discriminated against [Victim] based on her sex and created a hostile and intimidating environment in which [Victim] must fear repeated incidents of sexual harassment or assault in the future.
According to the Washington Post, "City Schools of Decatur officials have contested the version of events laid out in the complaint," including by "contradicting claims that the classmate the girl identified is gender fluid." It also noted that "a social service agency investigation determined the girl's allegations were 'unfounded.'"

This is an investigation we will watch closely and with concern. The Department of Education repealed the previous administration's guidance that requires schools to accommodate transgender students according to their gender identities in bathrooms and locker rooms, but it has not prohibited schools from doing so.  If the agency finds that the school has violated Title IX, it could signal the agency's position that inclusive bathroom policies violate Title IX. It would also create a conflict between the agency and judicial interpretations of Title IX which have in recent years consistently supported transgender students rights in bathrooms, and which have rejected arguments on behalf of cisgender girls that the inclusion of transgender girls somehow violates their rights.

Friday, October 05, 2018

Refections on a terrible, horrible, no-good, very bad (couple of) week(s)

Anyone who has been near the internet in the past two weeks will have seen stories and memes and other writings about the messages the Kavanaugh hearings have sent to women--especially young women and girls--who have been or may be victims of sexual assault. The term "chilling effect" has been ubiquitous and this, the second week (depending on how one is counting) that effect arguably grew with the backlash--the sadly inevitable backlash--against Dr. Christine Blasey Ford's allegations against the nominee. Her testimony last week, largely received with either muted and eyes-cast-down silence or head-nodding sympathy, was re-interpreted this week seemingly led by those with the anger-scrunched faces from which emanated shouts of ire.

The new narrative: men are in danger because these women can just say anything they want. One, the men in danger are white men. No one said that out loud and some will protest that categorization with "what about Clarence Thomas?" What this does is fail to recognize the actual dangers Black men face now and have faced historically and the systems of discrimination that have been reified because of these fears. [This is an especially good moment to watch or re-watch 13th.] Two, the narrative is not new. This is what we have been seeing in the work against campus sexual assault or rather the work to address acts of sexual assault on college campuses. This backlash, framed as due process rights for accused men, has been building for several years. [On the recommended reading list: this article about due process rhetoric.] It is reflected in the new sexual assault and harassment guidelines proposed by the Department of Education. Finally, the chilling effect is not new. What also emerged in the past few weeks are stories about why people did not report. They are numerous and they indicate that one, under reporting is real and that we need to pay attention to what the statistics about assaults do not say; and two, that the chilling effect of various social institutions (all the social institutions??) has been so deep that it does not require a catch phrase--we just called it reality.

In this climate, we are doing what we can do. I am not speaking for Erin, but I know we have both been using our respective knowledges and positions to interrupt the narratives and share information when and where we can. For me, this has been especially helpful in getting through these weeks, when I really have not known how to feel. In some ways, this week has felt like many others when I have been steeped in stories about sexual assault and injustices and impediments. Several weeks ago I left an institutional meeting in which I was the only one to speak up about a very problematic portrayal of how to handle campus sexual assault. And I wondered how much longer I could do this work; if I was always going to be outsider; if anyone was on my side. Subsequent conversations revealed that I was not an outlier in my thoughts and that my contributions to the discussion were actually quite effective in ways I had not been able to witness at the time. The speaking up matters--even when we cannot see the results; even when the results are not what we wanted.

It was a brutal week on a much larger scale. But it revealed that people will step up and say things--often really hard things. That people will rally. This gives me hope that, for example, schools will be compelled to retain the policies about sexual assault that were the result of the Obama-era guidelines. But things will continue to be hard. I do not expect a good outcome. This means we have to be prepared for more brutality ahead.

Because I see what is coming, I want to note all the good things I saw and experienced this week and hold them alongside all the pain and anguish; to share gratitude. Thank you to friend circles and all the checking in everyone was doing. Thank you to my colleagues and educator friends who put great care and thought into their lessons and interactions with students this week. I saw you and appreciate you. Thank you to all the colleagues I do not know who did the same. I read amazing stories this week of classroom activities related to the hearings. Thank you to all the women of color at the forefront of the activism on this issue with a special thank you to Ana Maria Archila who was one of two women who confronted Senator Jeff Flake in an elevator and made him listen to their stories. There was a lot of talking this week and--ironically--not a lot of hearing. I am thankful to all of those who know how to and value listening.


Monday, October 01, 2018

Federal Funding to Chicago Public Schools is Suspended

The Chicago Tribune reported last week that the Department of Education is suspending some funding to the Chicago Public Schools because of a record of "serious and pervasive violations under Title IX" and its "slow and incomplete responses to federal investigators who are looking into two student complaints filed in recent year."

This is notable departure from the Department's standard practice of using federal funding as leverage to get school districts and other educational institutions to correct their Title IX problems on a going-forward basis, without ever having to actually make good on the threat to terminate funding. 

Title IX generally contemplates an all-or-nothing approach to federal funding; recipients that violate the law are subject to termination, not just to some funding but all of it. For this reason, I've sometimes described this penalty as a hammer that is too big to use. Yet, that does not seem to be what is happening in the CPS case. If one of the country's largest school districts had lost all of its federal funding over Title IX violations, we'd have expected more (a) process -- since the Title IX regulations provide for a series of procedural steps, including a hearing and possibly appeal before that can happen -- and (b) fanfare, because the drastic step of terminating all federal funding over violations of Title IX has never occurred in the past.

Here, it seems that the agency has creatively isolated only federal funding from a particular grant program to qualified magnet schools (presumably on the grounds, detailed in the regulations of the Magnet Schools Assistant Program, that the school districts applying for the grant attest that they not engage in sex and other forms of discrimination) to open up some more options for enforcement besides all and nothing.  By focusing on only one grant program, the agency was (apparently) able to suspend millions of dollars by simply sending a letter -- sidestepping the hearing and other procedural steps necessary to terminate all funding. This has both an upside and a downside, so far as I can see.  The upside is that because of the consequences meted out to CPS, CPS and other school districts might do a better job in the future addressing Title IX issues proactively rather that waiting for the Department of Education's OCR to show up and investigate. On the other hand, this administration is not a fan of public schools, so I would be curious about what procedural safeguards CPS had to ensure that the decision to suspend this funding was fair. It is also unclear what opportunity CPS might have to restore the funding that was lost. (That the article used the words "withheld" and "suspended" rather than "terminated" suggesting the possibility that this is a temporary or conditional decision.)