OCR Title IX Roundup

Here are links for a few recent stories about administrative enforcement of Title IX:

The Department of Education's Office for Civil Rights has entered into an agreement with Mercer County Community College in New Jersey that will require the college to revise its grievance procedure to comply with Title IX requirements and review all sexual harassment and sexual assault complaints filed in the last academic year to determine whether those requirements were satisfied. The college's grievance procedure must be revised on a number of matters such as identifying its application to all matters of sex discrimination including sexual harassment and sexual violence, clarifying the process for filing a complaint, establishing a prompt time frame for resolution, endorsing a preponderance evidence standard of proof, and providing similar procedural rights for the complainant and respondent.

OCR has reportedly opened three investigations at universities in the state of Texas in the past year, including a broadly-focused one at Texas A&M that will consider a male student's complaint that the university's disciplinary process violates male respondents' rights.  The complainant in that case was suspended for seven months after a disciplinary hearing found that he had violated university policy by forcing a female student to have oral sex with him.  Though OCR investigations into issues related to sexual assault typically focus on the rights of the complainant, it is not unprecedented for OCR to investigate respondent's rights as it is doing here, as demonstrated by an ongoing investigation at Brandeis.

A student at the University of Wisconsin-Whitewater filed a Title IX complaint with the Department of Education's Office for Civil Rights alleging that the Dean of Students did not adequately respond to a sexual assault she reported; specifically, in that the Dean failed to interview witnesses to the incident or accept the student's police report or medical records from the incident.  She also alleges that it was three months before her assailant was removed from her classes. 

"Transcending Gender Lines: Title IX and Transgender Rights"

Yesterday I had the opportunity to participate in a symposium at the University of Wisconsin about Title IX's application to transgender rights, sponsored by the law school's Journal of Law, Gender and Society.  Devi Rao from the National Women's Law Center kicked things off by discussing how Title IX courts have interpreted sex discrimination to include discrimination on the basis of gender nonconformity, clarifying the law's protection against harassment to include transgender and other gender-nonconforming students.  I followed by talking about legal precedent from the employment context, that if applied to cases involving students, could broaden Title IX's protections for transgender students to cases outside of the harassment context, where gender nonconformity theory may be less useful.  Rounding out the morning, we heard from Professor Jillian Weiss from Ramapo College, who emphasized the limits of Title IX in securing transgender rights, and advocated for judicial recognition of a constitutional right to gender autonomy as a way to supplement efforts to secure their legal protection. 

In the afternoon, Harper Jean Tobin from the National Center for Transgender Equality argued that Title IX should be interpreted to allow students access to single-sex facilities like bathrooms and restrooms based on their gender identity. Afterwards, Ilona Turner of the Transgender Law Center and Scott Thomspon from the law firm Cleary Gottlieb made a similar argument in favor of transgender students' participation on athletic teams. 

In addition to these presentations, we all enjoyed engaging discussion facilitated by able moderators.  It was a great day of insight and inquiry in Madison. I'm looking forward to the publication of these conference proceedings in an upcoming issue of the Journal.   

Sexual Harassment Litigation Roundup

Here is a roundup of news related to Title IX cases involving sexual harassment and assault:

• A former student at Arizona State has sued the Board of Regents claiming that the university failed to adequately protect her from a rape that occurred at a fraternity house.

• A district court judge set aside a jury verdict in favor of a Michigan student, who had sued the school district over its response to other students' perpetration sexual and anti-gay harassment. The case had been reinstated by the 6th Circuit after the district court dismissed on summary judgment. But considering new evidence presented at the jury trial, the district court judge held that the harassment was not severe and pervasive, but typical of middle school students, and that the school responded adequately by investigating each incident of harassment and punishing the perpetrators. See Patterson v. Hudson Area Schools, 2010 WL 2670167 (E.D. Mich. July 1, 2010).
  

• A district court in Indiana dismissed a plaintiff's case stemming from peer harassment because there was no support for plaintiff's claim the abuse was motivated by his gender nonconformity, only his perceived sexual orientation (which is not covered by Title IX). Turpin v. Good, 2010 WL 2560421 (S.D. Ind., June 24, 2010).
  

• A district court in Illinois dismissed a case in which a student challenged the university's response to his complaints about a professor's weird and inappropriate statements about the plaintiff's hair (the professor said that his hair would be sexy on a lady, and that if the plaintiff was a lady, he would want to date him). The court held that this did not constitute harassment based on the plaintiff's sex. The court also considered the fact that the professor harassed male and female students equally to cut against the plaintiff's argument that the harassment was motivated by his sex. Milligan v. Bd. of Trustees, 2010 WL 2649917 (S.D. Ill. June 30, 2010).
  

• A district court in Wisconsin denied a university's motion for summary judgment in a case arising out of a resident advisor's alleged assault on the plaintiff, a student, in her dorm room at the University of Wisconsin-Parkside. The court agreed that the plaintiff's complaint contained sufficient allegations -- including that campus officials waited three days before calling the police -- that could allow a jury to find the university liability under Title IX. Albiez v. Kaminski, 2010 WL 2465502 (E.D. Wisc. June 14, 2010).