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.)