Investigating the Department of Education's Office for Civil Rights Title IX enforcement records, journalist Tyler Kingkade discovered that the agency has a resolved at least 70 cases and found many problems with the sexual misconduct policies and practices of school districts, colleges and universities. In higher education, examples of violations included things like unjustifiable delay and other impairment of the complainants' rights, but even more alarming problems were discovered in the agency's investigations into institutions at the K-12 level. Kingkade found that six school districts didn't even investigate sexual misconduct at all. One major metropolitan school district, in District of Columbia, simply files incident reports with local law enforcement. Elsewhere in the country are examples of school districts whose Title IX coordinators haven't worked on any sexual misconduct issues in the last 11 years, and another whose principal only calls the Title IX coordinator for complaints about equity in sports. Kingkade reports several examples of egregious sexual misconduct -- some perpetrated by teachers, others by students -- that school districts knew about but failed to investigate or provide help to the victims.
These findings are important to highlight for a couple of reasons. First, they remind us that we shouldn't leave school districts out of the public and political scrutiny that colleges and universities already receive on these issues. Second, it's proof that Title IX continues to be necessary to challenge the lack of attention that school and university administrators give to sexual misconduct cases. This disconnect was noted in the article by former OCR Director Catherine Lhamon, who said, "The department is still documenting very serious sexual violence and
unbelievable harm to students today in school, [but] its policy arm is
telling schools to stop looking for that...The need is exponentially higher, and OCR is turning in
the other direction." If the agency follows through on its proposed regulations focused campus hearing due process and narrowing the scope of misconduct that falls under Title IX, it will be hard to reconcile those changes with the pattern of problems that its own enforcement efforts continue to reveal.
Friday, April 26, 2019
Wednesday, April 17, 2019
Morehouse Opens Admission to Transgender Men, but Will Expel Students Who Transition to Female
I was pleased to read that all-male HBCU Morehouse College has opened its admission to transgender men. But the policy also requires all students admitted to Morehouse to identify as male for the duration of their education there, saying that any student who transitions from male to female "will not be eligible to matriculate." This part of the policy is cruel and unlawful. Like the military ban, it will force people to suppress or hide their gender identities, since coming out risks rejection from the community and having to start over in another setting. It is unlawful because despite the Department of Education's backpedaling on this view, federal courts are continuing to view Title IX to prohibit discrimination against transgender students. Assuming that Title IX applies in this manner, it would be unlawful for any school that receives federal funds to expel a student because they are transgender.
Morehouse and other single-sex colleges are not exempt from this application of Title IX. Private undergraduate institutions are exempt from Title IX in their admissions policy, which is how we have single-sex private colleges in the first place. But expulsion decisions are not admissions decisions and are not covered by the exemption for admissions.
Unfortunately, Morehouse isn't the only single-sex institution with policies that threaten expulsion to students who come to terms with their gender identity after they have enrolled. In 2011, I made this same argument about a women's college in Virginia when it adopted a policy to expel any student who transitions to male while they are enrolled. Hollins College continues to defend this policy on the grounds that Title IX does not cover transgender students. Since 2011, however, federal courts such as the Seventh Circuit as well as district courts in Florida, Ohio, Pennsylvania and others have ruled that it does, calling into question the legality of Hollins' policy, as well as now Morehouse's.
However, in contrast to Morehouse, its sister school Spelman has a transgender-inclusive admissions policy that states, "If a woman is admitted and transitions to male while a student at Spelman, the College will permit that student to continue to matriculate at and graduate from Spelman."
Morehouse and other single-sex colleges are not exempt from this application of Title IX. Private undergraduate institutions are exempt from Title IX in their admissions policy, which is how we have single-sex private colleges in the first place. But expulsion decisions are not admissions decisions and are not covered by the exemption for admissions.
Unfortunately, Morehouse isn't the only single-sex institution with policies that threaten expulsion to students who come to terms with their gender identity after they have enrolled. In 2011, I made this same argument about a women's college in Virginia when it adopted a policy to expel any student who transitions to male while they are enrolled. Hollins College continues to defend this policy on the grounds that Title IX does not cover transgender students. Since 2011, however, federal courts such as the Seventh Circuit as well as district courts in Florida, Ohio, Pennsylvania and others have ruled that it does, calling into question the legality of Hollins' policy, as well as now Morehouse's.
However, in contrast to Morehouse, its sister school Spelman has a transgender-inclusive admissions policy that states, "If a woman is admitted and transitions to male while a student at Spelman, the College will permit that student to continue to matriculate at and graduate from Spelman."
Tuesday, April 16, 2019
Sixth Circuit Calls Off EMU's Reinstatement of Softball
The Sixth Circuit Court of Appeals has reportedly granted a stay that pauses a district court's order that Eastern Michigan University reinstate its women's softball team. As we blogged about last fall, the district court granted a preliminary injunction that would prevent the university from terminating softball along with the women's tennis team because the cuts would leave EMU in violation of all three prongs of Title IX's test for compliance in the number of athletic activities available to each sex. Then in February EMU went back to the district court with a plan to add lacrosse instead, which the court rejected, ordering the university to hire a softball coach by April 1 and start planning for competition next season. Though the university reinstated tennis, it petitioned the appellate court to stay the district court's order.
The Sixth Circuit Court of Appeals granted the requested stay, reasoning that Title IX requires equity in the availability of athletic opportunities overall, but does not require a university to support particular teams. Either proportionality or the absence of unmet interest among women (as the underrepresented sex) could satisfy the law's equity requirement, so the EMU could theoretically demonstrate Title IX compliance by adding or expanding women's opportunities in sports other than softball.
While I agree that Title IX doesn't require EMU to carry any particular sport, I have two concerns about using that rationale to undermine the court's injunction against cutting softball. First, will substituting softball with lacrosse bring the university into proportionality compliance? Because the fact that softball players are challenging the university's decision to terminate their team is evidence of unmet interest, so prong three is off the table.
Second, even if lacrosse-for-softball does bring the university into proportionality compliance, the timing of this is all wrong. Without softball, the university is out of compliance *right now* because of unmet interest. That's why the district court enjoined the cuts. If the university wanted to replace softball with lacrosse, it should have added lacrosse first to attain proportionality, then cut softball. If district courts can't effectively prevent unlawful cuts from happening before they happen, then Title IX loses whatever teeth it has to keep universities accountable for equity in athletics. EMU seems to be getting away with noncompliance here, so what's to stop other universities from taking the same "cut now, comply later" approach?
The Sixth Circuit Court of Appeals granted the requested stay, reasoning that Title IX requires equity in the availability of athletic opportunities overall, but does not require a university to support particular teams. Either proportionality or the absence of unmet interest among women (as the underrepresented sex) could satisfy the law's equity requirement, so the EMU could theoretically demonstrate Title IX compliance by adding or expanding women's opportunities in sports other than softball.
While I agree that Title IX doesn't require EMU to carry any particular sport, I have two concerns about using that rationale to undermine the court's injunction against cutting softball. First, will substituting softball with lacrosse bring the university into proportionality compliance? Because the fact that softball players are challenging the university's decision to terminate their team is evidence of unmet interest, so prong three is off the table.
Second, even if lacrosse-for-softball does bring the university into proportionality compliance, the timing of this is all wrong. Without softball, the university is out of compliance *right now* because of unmet interest. That's why the district court enjoined the cuts. If the university wanted to replace softball with lacrosse, it should have added lacrosse first to attain proportionality, then cut softball. If district courts can't effectively prevent unlawful cuts from happening before they happen, then Title IX loses whatever teeth it has to keep universities accountable for equity in athletics. EMU seems to be getting away with noncompliance here, so what's to stop other universities from taking the same "cut now, comply later" approach?
Tuesday, April 09, 2019
Parents May Continue to Litigate Title IX Challenge to High School's Transgender Inclusive Locker Room Policy
A district court in Illinois issued a ruling yesterday on a school district's motion to dismiss the various claims in a lawsuit filed by parents challenging its policy of permitting transgender students to use facilities that correspond to their gender identities. The parents claim that their daughters have been upset and humiliated by having to share girls' locker rooms with other female students who have male anatomy. One parent alleges that the school denied her request to allow her daughter to access a private changing facility, and another that the school failed to investigate or remediate a situation where her daughter was exposed to another student's penis.
The court dismissed plaintiffs' claims that the school's transgender-inclusive facilities violate their daughters' constitutional rights to due process (bodily integrity) and religious freedom, as well as the parents' constitutional rights to autonomy in raising their children. But the court allowed the plaintiffs to continue to litigate their claim that the school district has violated their daughters' rights under Title IX. The court agreed that the plaintiffs had adequately alleged sexual harassment, of which the school had notice and responded to with deliberate indifference. The court noted that the Seventh Circuit has allowed harassment claims under Title VI and Title VII to survive motions to dismiss that minimally plead the elements of a harassment claim. These cases establish the pleading standard for Title IX harassment cases as well, and the details in the plaintiffs' complaint surpasses this low bar.
This ruling is the first of its kind in a transgender bathroom case, though importantly, the court was careful to point out its limited scope and preliminary nature -- noting that whether the plaintiffs "can ultimately prevail on this claim is a question for another day." I also think it's premature to worry that this case will somehow dismantle the trend in favor Title IX's protection of transgender students' rights by creating an inherent conflict between transgender students' rights and the rights of other students to be free of a sexual harassment. One possible outcome is that once the plaintiffs are required to supply evidence in support of their claims, they will not be able to establish as a general matter that the prospect of encountering a transgender student in a locker room is harassment that is severe or pervasive and objectively offensive. It's also possible that the parents could win on very narrow grounds that still respects the school's policy of inclusion, but finds it marginally at fault for not doing more to accommodate all students' right to privacy, such as by making locker room alternatives available to anyone who is not comfortable in communal changing space. Either of these two possibilities seem much more likely than a court order enjoining the school from permitting transgender students to use the facilities that correspond to their gender identity, which even after this preliminary ruling in the parents' favor, still seems unlikely and far-fetched to me.
Decision: Students and Parents for Privacy v. School Directors of Township High School District 211, No. 16C 4945 (N.D. Ill. Mar. 29, 2019).
The court dismissed plaintiffs' claims that the school's transgender-inclusive facilities violate their daughters' constitutional rights to due process (bodily integrity) and religious freedom, as well as the parents' constitutional rights to autonomy in raising their children. But the court allowed the plaintiffs to continue to litigate their claim that the school district has violated their daughters' rights under Title IX. The court agreed that the plaintiffs had adequately alleged sexual harassment, of which the school had notice and responded to with deliberate indifference. The court noted that the Seventh Circuit has allowed harassment claims under Title VI and Title VII to survive motions to dismiss that minimally plead the elements of a harassment claim. These cases establish the pleading standard for Title IX harassment cases as well, and the details in the plaintiffs' complaint surpasses this low bar.
This ruling is the first of its kind in a transgender bathroom case, though importantly, the court was careful to point out its limited scope and preliminary nature -- noting that whether the plaintiffs "can ultimately prevail on this claim is a question for another day." I also think it's premature to worry that this case will somehow dismantle the trend in favor Title IX's protection of transgender students' rights by creating an inherent conflict between transgender students' rights and the rights of other students to be free of a sexual harassment. One possible outcome is that once the plaintiffs are required to supply evidence in support of their claims, they will not be able to establish as a general matter that the prospect of encountering a transgender student in a locker room is harassment that is severe or pervasive and objectively offensive. It's also possible that the parents could win on very narrow grounds that still respects the school's policy of inclusion, but finds it marginally at fault for not doing more to accommodate all students' right to privacy, such as by making locker room alternatives available to anyone who is not comfortable in communal changing space. Either of these two possibilities seem much more likely than a court order enjoining the school from permitting transgender students to use the facilities that correspond to their gender identity, which even after this preliminary ruling in the parents' favor, still seems unlikely and far-fetched to me.
Decision: Students and Parents for Privacy v. School Directors of Township High School District 211, No. 16C 4945 (N.D. Ill. Mar. 29, 2019).
Tuesday, April 02, 2019
Plaintiffs Win Dress Code Challenge with Equal Protection Argument
An Equal Protection challenge to a public charter school's gendered dress code recently survived summary judgment. But the court dismissed the plaintiff's Title IX claim. As we noted in an earlier post about this case, the plaintiffs are a group of parents suing Charter Day School on behalf of their female children to challenge the school's dress code policy that prohibits girls from wearing pants. The school's uniform policy is part of its mission as a "traditional values charter school." Boys can wear pants or shorts while girls are restricted to skirts.
The court granted the school's motion to dismiss the plaintiff's claim that the dress code violated Title IX after concluding that Title IX does not prohibit schools from imposing gender-specific dress codes. The court based its conclusion on the fact that the original Title IX implementing regulations (promulgated by Department of Education's predecessor agency, HEW) contained a provision prohibiting gendered dress codes, but amended the regulations in 1982 to remove this provision. The court interprets this absence of a prohibition as an express permission to maintain gendered dress codes and extended judicial deference to this interpretation of the regs. Interestingly, even though the court cited the agency's stated rationale for striking the prohibition on gendered dress codes from the regs -- to allow the agency to focus its enforcement efforts on other Title IX issues -- it failed to acknowledge that this rationale is in no way conflicted by judicial enforcement of Title IX to prohibit gendered dress codes. Title IX is a general prohibition on all sex discrimination that is not expressly excluded from the statute's scope. As such, I believe that the court should have entertained the argument that the dress code constituted unlawful sex discrimination in violation of Title IX.
Fortunately, though, the plaintiffs fared better on their second argument that the dress code violated the Equal Protection Clause, which applies to the policies of a public charter school. Without rejected the idea that a stricter version of intermediate scrutiny might apply, the court determined that the dress code did not even survive the more lenient "comparable burdens" test that is sometimes used for dress codes.The court noted that the requirement for boys to wear pants (and not skirts) is consistent with community norms, but the requirement for girls to wear skirts (and not pants) is inconsistent with community norms. ("Women (and girls) have, for at least several decades, routinely worn pants and skirts in various settings, including professional settings and school settings. Females have been allowed to wear trousers or pants in all but the most formal or conservative settings since the 1970s. According to plaintiffs' expert, most public school dress codes across the country allowed girls to wear pants or shorts by the mid 1980s.") Though the school argued that the gendered dress code provides students with a "visual cue" that promotes respect between the sexes and thus serves an important purpose, the court did not see any evidence that the requirement actually promoted this goal. For one thing, the dress code requirement is lifted on certain days, for special events or because of phys ed, and it does not appear that boys and girls treat each other with less respect on those days.
The school board is reportedly in the process of "discussing its options" for how to proceed in the face of the court's ruling. Realistically, this means choosing between appealing the court's ruling to the federal appellate court, or agreeing to change the policy in exchange for the plaintiffs dropping the case.
The court granted the school's motion to dismiss the plaintiff's claim that the dress code violated Title IX after concluding that Title IX does not prohibit schools from imposing gender-specific dress codes. The court based its conclusion on the fact that the original Title IX implementing regulations (promulgated by Department of Education's predecessor agency, HEW) contained a provision prohibiting gendered dress codes, but amended the regulations in 1982 to remove this provision. The court interprets this absence of a prohibition as an express permission to maintain gendered dress codes and extended judicial deference to this interpretation of the regs. Interestingly, even though the court cited the agency's stated rationale for striking the prohibition on gendered dress codes from the regs -- to allow the agency to focus its enforcement efforts on other Title IX issues -- it failed to acknowledge that this rationale is in no way conflicted by judicial enforcement of Title IX to prohibit gendered dress codes. Title IX is a general prohibition on all sex discrimination that is not expressly excluded from the statute's scope. As such, I believe that the court should have entertained the argument that the dress code constituted unlawful sex discrimination in violation of Title IX.
Fortunately, though, the plaintiffs fared better on their second argument that the dress code violated the Equal Protection Clause, which applies to the policies of a public charter school. Without rejected the idea that a stricter version of intermediate scrutiny might apply, the court determined that the dress code did not even survive the more lenient "comparable burdens" test that is sometimes used for dress codes.The court noted that the requirement for boys to wear pants (and not skirts) is consistent with community norms, but the requirement for girls to wear skirts (and not pants) is inconsistent with community norms. ("Women (and girls) have, for at least several decades, routinely worn pants and skirts in various settings, including professional settings and school settings. Females have been allowed to wear trousers or pants in all but the most formal or conservative settings since the 1970s. According to plaintiffs' expert, most public school dress codes across the country allowed girls to wear pants or shorts by the mid 1980s.") Though the school argued that the gendered dress code provides students with a "visual cue" that promotes respect between the sexes and thus serves an important purpose, the court did not see any evidence that the requirement actually promoted this goal. For one thing, the dress code requirement is lifted on certain days, for special events or because of phys ed, and it does not appear that boys and girls treat each other with less respect on those days.
The school board is reportedly in the process of "discussing its options" for how to proceed in the face of the court's ruling. Realistically, this means choosing between appealing the court's ruling to the federal appellate court, or agreeing to change the policy in exchange for the plaintiffs dropping the case.
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