Sexual Harassment Roundup

Here is another installment in our regular effort to provide summaries of all Title IX sexual harassment decisions issued by the courts:

A state court in Pennsylvania agreed that Slippery Rock University lawfully terminated a professor of sports management who, while leading a class trip to Spain, got drunk with his students and made sexual remarks to them. After the trip, a student complained to the professor about his conduct, and he responded by apologizing and by reporting to his Dean what had occurred. Eventually, a disciplinary proceeding ensued that resulted in the professor's termination, due largely to the fact that he had committed an act of sexual harassment in the past, and had agreed that he should be fired if it happened again.  The professor then appealed the decision to an arbitrator, who ordered him reinstated, finding that the university did not provide proper notice to the professor of the charges against him.  The university, in turn, appealed to the court, where the judge determined that, in fact, the notice was proper. As a second reason for overturning the arbitrator's decision, the judge noted that retaining the professor would put future students at risk of harm and the university at risk of liability under Title IX. Therefore, the arbitrator's decision was "against public policy" and should be overturned on that ground.  Slippery Rock Univ. v. Ass'n of Pa.  State College and Univ. Professors, 2013 WL 2450495 (Pa. Comm. Ct. June 7, 2013).

The parents of a disabled student sued a school district, alleging school officials' deliberate indifference to sexual assault by his peers that the student endured in the school bathroom.  However, the court determined that the school was not liable under Title IX because the parents had failed to allege that they notified school officials that he had been sexually assaulted, rather than bullied in a more generic way. C.L. ex rel. R.L. v. Leander Independent School Dist., 2013 WL 2452724 (W.D. Tex. June 4, 2013).

A former student's lawsuit against a community college based on sexual harassment by her professor was dismissed for being filed too late. The statute of limitations that applies to Title IX claims is based on the state's statute for tort claims, which in this case (in Pennsylvania) was two years. Despite the fact that the professor allegedly continued to harass the plaintiff until about a year before she filed suit, the professor was terminated as an employee of the college during that time. Because institutional liability for harassment does not extend to a harassment over which the school has no control (such as by former employees), the court reasoned that she needed to have filed a claim against the institution within two years of the professor's termination. Because she failed to do this, the plaintiff's case was dismissed as untimely. Gjeka v. Delaware County Community College, 2013 WL 2257727 (E.D.Pa., May 23, 2013).

A court dismissed a case against a school district in which a bullied student's parents allege that school officials were indifferent to bullying endured by their son.  The complaint failed to state a claim because the plaintiffs did not allege that the bullying was because of sex (such as targeting the victim for gender nonconformity, or consisting of sexual conduct). Baker v. Hamilton City Schools Bd. of Educ., 2013 WL 1131068 (S.D.Ohio, March 18, 2013).

The Sixth Circuit Court of Appeals affirmed a lower court's dismissal of a case alleging that school district officials were deliberately indifferent to known threat of sexual abuse by a teacher. Prior to the reports of sexual abuse, school officials had reprimanded and warned the teacher to curtail physical contact with students, based on reported incidents in which he had grabbed or pinched a student. Such response was not unreasonable, the court determined, because the earlier reports of physical contact were of a nonsexual nature. McCoy v. Board of Educ., Columbus City Schools, 2013 WL 538953 (6th Cir. Feb. 13, 2013).

Slippery Rock Settles Retaliation Suit

Slippery Rock University has settled on undisclosed terms the retaliation case filed against it by two female athletics officials, which we had earlier blogged about here. The plaintiffs had alleged that their employment contracts were not renewed in retaliation for their cooperation in an earlier lawsuit against the university that challenged the athletic department's compliance with Title IX.

Slippery Rock back in legal trouble

Slippery Rock University in Pennsylvania is back in legal hot water again. (Click on the Slippery Rock tag for more on the history of Title IX lawsuits and settlements.)
This time a lawsuit is being brought by two women who are claiming retaliation over their participation in the initial lawsuits, which lead to SRU having to reinstate three women's teams that had been cut.
The first plaintiff is the women's volleyball coach who was told her contract will not be renewed when it ends in 2013.
The second woman is an assistant to the athletic director who says she has been overloaded with work and left out of department meetings she otherwise would have been a part of.
The lawsuit alleges that the retaliation is also due to the fact that the athletic director, Paul Lueken, cannot work with strong women.

Slippery Rock settles--again

The gender equity case against Slippery Rock University that started in 2006 and was reopened last spring when some felt SRU was not meeting the settlement's requirements has settled again. The university has promised to improve the softball stadium, commit $300,000 more than in the original settlement toward improving women's athletics, and provide Title IX training for athletes, coaches, and administrators in the athletic department.
The re-settlement brings up a few interesting issues. First, SRU president Dr. Robert Smith said that it was easy to sign the settlement because everyone was working toward the same goal. But I have my doubts about the level of sincerity in this statement. He defended the poor quality of the new softball seating and the layout of said stadium which blocked certain views of the field for fans noting that he didn't think Title IX applied to the quality of the fans' experience. True. But fans in the stands affects the quality of the athletes' experience and nice facilities in which fans can see the entire field of play help get fans in the stands. There seems to be an underlying assumption that female athletes play purely for the love of the sport; that they could play in an empty stadium and still love the game. And maybe they could; but everyone likes fans. Additionally, the alleged inferior quality of the softball stadium, as compared to the baseball facilities, illustrates the argument plaintiffs used to reopen the case: that SRU remains a little weak in its commitment to gender equity. I don't know how administrators can claim they created a first-class facility when it does not equal the quality of its first-class baseball facility. Such a statement would seem to indicate that there are different standards for the men and women.
And second, Dr. Smith discussed the university's adherence to Title IX noting that they have been in compliance with prong one for two years. Women receive 56 percent of the athletic opportunities; a percentage equal to their representation in the undergraduate student body. While we applaud this change since the 2006 settlement, it provides a good opportunity to reiterate that Title IX compliance is not only about number of opportunities. An institution might meeting that one requirement of Title IX but failing miserably in providing things like quality coaching, quality competition, access to facilities, etc. While SRU does not appear to be failing miserably, we were pleased to see them sign this new settlement and recommit themselves to gender equity in their athletic department.

Slippery Rock cuts swimming

It's official. Slippery Rock University which, several years ago tried to cut women's swimming and diving and water polo but was prevented by a lawsuit, has done so. SRU was prevented from cutting these viable women's teams because it had not achieved proportionality and the court ordered that SRU must remain within two percentage points. They currently are. Earlier in the year some of the original plaintiffs attempted to re-open the case when rumors of the cuts were swirling but the judge would not rule on how potential future proportionality would break down.

SRU administrators have said they plan on remaining compliant with the court's mandate through roster management though the article did not give further details about what teams might be expanding their rosters.

Lead plaintiff Beth Choike, a member of both the swim and water polo teams, noted one of the issues with roster management:

"It's not fair for teams because the ones not playing aren't getting the quality experience."

Going down "Hypothetical Lane"

As a follow-up to yesterday's post about Slippery Rock University I decided to crunch some numbers. SRU's student newspaper is citing Judge Donetta Ambrose's decision not to re-open the case "a clear-cut victory" for the university. Ambrose, earlier this month, said that because SRU remained within 2 percentage points of proportionality--a number agreed upon in the April 2007 settlement with female student-athletes who filed a lawsuit after teams were cut--she could not re-open the case brought by some of these initial plaintiffs who were, apparently, trying to prevent the university from cutting swimming and water polo at the end of this season.
Ambrose said she would not go down "Hypothetical Lane." In other words, she could not re-open the case based on numbers that do not exist right now.
Fair enough, I suppose. But I decided to take my own stroll down Hypothetical Lane using numbers SRU has reported to the Department of Education. We don't know what enrollment numbers for academic year 2008-2009 will be, but I am going off the assumption that SRU is planning on keeping a comparable class size and that the proportion of male/female students won't be drastically different in the incoming class. (This assumption is probably a little more tenuous given that I hear rumblings about schools instituting an informal and somewhat covert form of affirmative action for male applicants in order to not totally skew the proportions. But I have to work with what I have right now).
So there are currently 230 opportunities for female student-athletes. Cutting swimming and water polo drops that number to 196. If no men's teams are cut this means that women will be receiving only 48 percent of the opportunities. And if enrollment numbers remain similar, women will comprise just under 55 percent of the undergraduate student body thus creating nearly a 7 percent difference--not even close to the 2 percent difference mandated by the settlement.
But I suspect that administrators at SRU know this already. I can't imagine they haven't bothered to crunch the numbers. It's obvious there are concerned students who are following their decisions and are ready to jump back into action should the need arise.

Case still closed at Slippery Rock

Federal District Court Judge Donetta Ambrose will not re-open the Title IX case against Slippery Rock University even if they do decide, at the end of this season, to cut women's swimming and water polo. The ruling by Ambrose states that because SRU has achieved substantial proportionality it can cut the two women's squads. SRU has not made a final decision about the teams which it attempted to cut several years ago but was forced to reinstate because of the initial lawsuit.

Though SRU is currently in compliance, I would imagine that cutting two women's teams, when your proportionality score is currently just under -2 percent, might throw the numbers a little out of whack. No word in the story about how SRU would remain in compliance should the cuts be enacted.

Confusion at Slippery Rock

Not too long ago we reported that the Title IX issues at Slippery Rock University that seemed to settle in 2006 were back. Relying on the student newspaper's account of the story, we thought that the case had been reopened. According to President Robert Smith, it has not, though the Women's Law Project, which represents the original 12 plaintiffs, has sent a letter to the judge requesting the case be reopened.

Smith contends, and says that the District Court supports this position, that SRU is now in compliance with Title IX. He seems to be referring only to the number of opportunities, though. He told the Student Government Association that the number of opportunities for female student-athletes has risen and that men's opportunities have been cut since 2006.

But we don't know if the request to reopen the case is only about opportunities--or if it is at all.

There is not much news circulating about this right now and I suspect there won't be any until the judge decides to address the Women's Law Project's letter.

Slippery Rock case reopened

Though the claims from the 2006 case against Slippery Rock University which cut 8 men's and women's teams that year, have been settled, the case is being reopened at the urging of the original 12 plaintiffs. Because current compliance is in doubt, and because the university is being monitored for compliance, the reopening is not especially startling. The judge in the original case is receiving evidence about the situation right now and deliberations will occur in the next few months.
Though a list of specifics was not available in the article, it seems there is some concern over how the university is choosing to meet the accommodations standard. SRU has opted for roster management which means adding spots to existing teams, and has plans to drop women's water polo and swimming after this season. Whether SRU will be allowed to proceed with that plan given that these are currently viable teams will depend, in part, on if they have added enough spots to other teams to compensate.
It will be interesting to see how things proceed but it's also quite interesting to see how a group of students have persisted and pressured their university to follow through. While we hear a lot about initial Title IX complaints and lawsuits, we rarely hear what happens afterwards. The SRU plaintiffs have made sure their issues stay alive until they are satisfactorily resolved.

Anti-Title IX shirts at Slippery Rock

The VP of Financial Affairs for the Slippery Rock University Student Government Association (SGA), Michael Combs, showed up at a meeting wearing a t-shirt that read "End Title IX." The meeting the included a presentation by the VP of Student Life about the recent lawsuit between some of the women's teams and SRU and her support for the teams. The article does not offer much context and only that Combs wanted to raise awareness about how Title IX has affected men's teams. Members of the field hockey team confronted Combs about the shirt and its potential negative repercussions on the whole SGA, but it does not appear that any further discussion occurred. (You can see pics of the shirt at the above link.) More information on the situation can be found in the letters to the editor where two of the lead plaintiffs in the case against SRU write in to express their disappointment in the presence of multiple t-shirts at the SGA meeting. (Suggesting that Combs was not the only SGA member supporting one) and providing some necessary clarifications on Title IX that the article failed to bring up.

Slippery Rock Settlement

Slippery Rock University has settled a lawsuit brought by female athletes challenging the university's decision to cut its women's swimming and women's water polo, among other teams, as part of an overall plan to reduce athletic department expenditures.

In July, a federal district court judge granted the athletes' request for a preliminary injunction against cutting the two teams. The reasoned that SRU's cuts did not result in substantial proportionality, the first alternative compliance prong, and that SRU neither satisfy the second prong, history and continuing practice of program expansion for women's varsity teams. Thus, it was left with prong three--accommodating the interests and abilities of female athletes--as its only option. Cutting two viable women's teams clearly violated this prong, and on this ground awarded a preliminary injunction to the plaintiffs.

This week, a magistrate judge approved a settlement of the case. Plaintiffs' counsel at the Women's Law Project provide this summary of its terms, among them: SRU has agreed to invest $300,000 in its women’s athletic program by making improvements to sports facilities and to equalize access to uniforms, travel, equipment, publicity, trainers. It also agreed to "retain women’s swimming and water polo as varsity teams for one full academic year after SRU has achieved compliance with the proportionality requirement of Title IX within two percentage points." And it agreed to increase funding for women's athletics every year it is not within two percentage points of proportionality.

For the July order see: Choike v. Slippery Rock University, 2006 WL 2060576 (W.D. Pa. July 21, 2006).

UPDATE: The magistrate's order is available at 2007 WL 184778 (W.D. Pa. Jan. 22, 2007) and the federal district court judge's final approval of the settlement is at 2007 WL 2317323 (W.D. Pa. Aug. 8, 2007).