Title IX Claims Dismissed in Two Discipline Cases

In two separate cases, federal district courts ruled that the plaintiffs who were suing their schools after being expelled for sexual misconduct did not satisfactorily allege or support allegations that the school's disciplinary process was tainted by gender bias in violation of Title IX. One of the plaintiffs, however, succeeded in alleging breach of contract claims and can continue to litigate on those grounds.

In the first case, a male student was dismissed from the nursing program at Del Mar College in Texas after multiple incidents misconduct that included sexual comments and gestures made to his classmates.  The court summarily dismissed his claim that the school treated him unfairly compared to female students because he could not show any example in which the college failed to discipline a female student who had engaged in similar misconduct. Nor could he sustain his claim that the college dismissed him in retaliation for complaining about sex discrimination in the disciplinary process, because he disciplinary process that led to his dismissal commenced before his complaint was filed.  Gudgel v. Del Mar College, 2018 WL 472829 (S.D. Tex. Jan. 17, 2018).

In the second case, a male student was expelled from Rider University in  New Jersey after a female student alleged that they had a sexual encounter while she was too intoxicated to consent. He alleged that that the Dean of Students and others involved in the disciplinary process were biased against   him. However, this did not amount to an allegation that the university discriminated against him because of sex, the court reasoned, since at most he could demonstrate only bias in favor of complainants over respondents. Nor did he successfully allege that the university disciplined men more harshly than women for the same conduct. Though the plaintiff complained that his male friend was more intoxicated than another female student when they had a sexual encounter in the same room, he did not allege that the male student sought to file a complaint about her conduct and was prevented from doing so.

However, the court ruled that even though the university's alleged bias did not violate Title IX, it could, if proven, sustain a claim for breach of contract and the related covenant of good faith and fair dealing. The university's sexual misconduct policy, which operates as a contract between the university and its students, promises an impartial investigation. The plaintiff alleged this promise was breached because the investigator ignored inconsistencies in the complainant's statements. Additionally, he alleged that the university did not adhere to its policy of providing an impartial tribunal to adjudicate his case because its members all reported to the Dean of Students, whom plaintiff had alleged had made up his mind against him. As a result of the ruling, the plaintiff has the opportunity to take discovery and gather evidence in support of these allegations. If at the end of discovery the court finds that evidence insufficient to support the claims, it could potentially dismiss them on a motion for summary rather than allow them to proceed to trial. A settlement, of course, is always a possibility as well. For recent examples of settlements in cases like these, see here (Notre Dame) and here (Yale).  Doe v. Rider University, 2018 WL 466225 (D.N.J. Jan. 17, 2018).

Unexpected meeting with Department of Education

Title IX news usually slows down during the summer with the exception of some annual anniversary coverage in June.
But this summer a core group of college students and recent graduates have continued their activism aimed at making college campuses less sexually dangerous and making more college students aware of their rights to a harassment- and violence-free campus. In addition to work on the Know Your IX campaign, this week a group of activists went to DC with a petition signed by over 100,000 people calling on the Department of Education and OCR to beef up enforcement of Title IX to better protect students from sexual assault. A small group of students rallied outside the Department of Education yelling up to the Secretary Arne Duncan's office through a megaphone and were surprised when Under Secretary Martha Kanter came out to personally accept the boxes of petitions saying that she would deliver that to Secretary Duncan.
Unlike Title IX's application to athletics, there is no universal handy checklist or comprehensive measurement scheme to assess a school's sexual climate. Though there are certainly signposts and other markers such as policies and educational and training programs, evaluation of a school's commitment to ensuring its campus is a safe place is quite subjective. Also, there has not yet been a confluence of negative effects to put some proverbial teeth into enforcement. Though the negative publicity a school receives provides some deterrent, it is both difficult to measure the ramifications of this negativity (students lost, donations lost?) and somewhat hard to believe that people will stop going to schools such as Yale or Dartmouth or Swarthmore even with the increase in the visibility of these issues. Additionally, there have been no set of legal cases resulting in large jury awards to scare schools into compliance as there have been in athletics (i.e., Fresno State. Florida Gulf Coast). While the efforts of the current group of student activists have been impressive and consistent and spread all over the country, other actions/results need to help the issue truly take hold.

Yale fined for Clery Act violations

The Department of Education has fined Yale University a total of $165,000 for various violations of the Clery Act. The fines are the total sum from multiple violations in the early 2000s when the university did not report four separate sexual assaults and did not include the Yale-New Haven Hospital as part of the campus thus omitting from their self-reported crime statistics any events that took place there.
The news of the fines comes at a time when college students across the country are accusing their respective administrators of similar violations. (See our previous posts about Occidental, Swarthmore, Amherst, and Dartmouth.)
The fines are the maximum allotted under the law, but they are not the equivalent of some of the large jury awards we have seen in the past decade from Title IX cases. And so it remains to be seen whether this will deter other institutions from similar misreporting.  
Yale has apparently asked for a reconsideration of the fines. Not because they cannot pay them, I suspect, but rather because there is a certain admission of guilt in doing so. When the university entered into a voluntary resolution agreement last year with OCR over Title IX complaints related to the hostile sexual climate at Yale and the policies and procedures in place to address incidents of sexual violence and harassment, it meant there was no finding of wrongdoing. I assume that Yale wants to keep its official record clean.

Yale assesses campus climate

As part of a process of regular follow-up to complaints of a negative sexual climate and confusing sexual assault policies and procedures two years ago, Yale University has issued a campus climate report that shows some of the steps the university has taken since 2011 have been effective.
Most effective has been the streamlining of policies and procedures that address incidents (and their reporting) of sexual assault and harassment. Students who were surveyed reported that they felt confident they could access the system for reporting sexual assault and harassment. Many could name an office on campus that deals with these issues. In short, awareness is up. This is good--
--because what remains unclear is how much the climate has actually changed. So while mechanisms and personnel are in place and have been well-advertised, the need to actually use them may not have decreased. Climate is more difficult to measure, but something Yale--and every school--needs to pursue. What are the proactive measures Yale is taking to decrease incidents of sexual assault and harassment? Remembers, the resources and mechanisms Yale has put in place and/or streamlined should have already been there. That's the law. And it was a reaction to an OCR complaint filed by students which ended in a voluntary resolution agreement.
One of the ongoing issues is the lack of female faculty in some departments. Also, the unique needs of graduate students should be addressed. Grad students work closely with faculty members and rely on them for progressing in their degree program and for help in getting a job afterwards. In other words, there is large power imbalance and plenty of cases to suggest that grad students who complain about inappropriate relationships with or behavior from faculty members experience significant backlash.
Yale will continue to assess campus climate. I hope they will report on specific measures to curb sexual assault and harassment and how they are measuring climate.

Former Employee Files Retaliation Suit Against Yale

A former security education coordinator has reportedly filed a lawsuit against Yale University, claiming that her position was terminated in retaliation for blowing the whistle internally on Yale's under-reporting of campus sexual assault.  Plaintiff Susan Burhans alleges that over a 10-year period, she observed that Yale was not devoting adequate resources to address the campus climate of sexual violence.  When she brought the issue to the attention of University administrators, she was ignored or criticized.  And when she allegedly notified a university vice president that Yale was underreporting cases of sexual misconduct, the administration blocked Burhans's new programs to promote a safe environment in compliance with Title IX.

Aspects of Burhans's complaint seem particularly plausible in light of the fact that Yale has since entered into a voluntary agreement with OCR to fix many of the problems Burhans allegedly complained about, including the underreporting. 

A university spokesperson is quoted as denying the charges of retaliation and vowing to vigorously defend the lawsuit. 

Yale Settles Title IX Complaint

Yale University has entered into an agreement with the Department of Education's Office for Civil Rights to resolve OCR's investigation of a complaint filed last year about the university's lax process for dealing with charges of sexual assault and harassment.   The investigation confirmed gaps and weaknesses in Yale's system for reporting, recording, and resolving students' grievances about sexual assault and harassment, such as those stemming from the widely reported "No Means Yes" chant by the pledges to a Yale fraternity.  

According to the Voluntary Resolution Agreement, Yale agrees to create a university-wide Title IX coordinator who will oversee efforts to ensure compliance with Title IX's requirements regarding sexual misconduct.  Yale also agrees to create a university committee charged with educating about and enforcing the university's grievance procedures for sexual misconduct, to train campus police and other staff to respond appropriately to reports of sexual misconduct, to create a 24/7 response center to assist victims of sexual assault, and to regularly assess the campus climate with respect to sexual misconduct.

This resolution agreement is similar to others we've blogged about, containing many express requirements of Title IX (such as the requirement to have a Title IX Coordinator) as well as best practices for preventing and addressing sexual assault and harassment, as well OCR's interpretation in the 2011 Dear Colleague Letter.  In light of the fact that OCR has seen a 78% increase in complaints about schools' and universities' responses to sexual harassment in recent years (between 2008 and 2011), education institutions would thus be wise to proactively implement the same measures Yale has agreed to.  They could wait their turn at an OCR investigation, but wouldn't it be great if they could save everyone the trouble and start now?  After all, they already have a legal obligation under Title IX to protect students from sexual assault and harassment. 

What's happening at Yale?

The news over alleged and potential sexual assault and the sexual climate/culture at Yale does not seem to be dying down. We get notice of another article/editorial/blurb pretty much daily. We haven't done a great job covering the story, but here is something of an update.
The most recent high-profile issue has been the controversy over what Yale quarterback Patrick Witt did or did not do and when he did or did not do it. I am not going to re-hash the whole thing because it seems that no one really has the answers--in part because people/entities have chosen NOT to go looking for them and in part because some of the so-called answers are of questionable origins. The basics: Witt was accused of sexual assault by a female student. She opted for the informal complaint process in which there is no investigation and no formal disciplinary action apparently. The alleged benefit, according to Dean Mary Miller, "is a simpler route to resolution"--as reported in the Yale Daily News.
It also allows the complainant to remain anonymous. And that, I am guessing, was part of the appeal of this process for this female undergraduate. I imagine it would be very difficult to be the woman who accused the quarterback, who is also a potential Rhodes Scholar, of sexual assault. And the process has worked in that she has remained anonymous. But the article above notes that the majority of complaints filed are done so using the informal process.
Last week Yale released, in a greater effort at transparency, the first ever report on the number of sexual misconduct complaints on campus (it included those filed between July and December of last year). There were 52 complaints--42 of them were addressed using the informal process.
I think further inquiry into the campus climate needs to occur. Why is this the preferred process? Why is it seen as easier? Granted, being known as a potential victim and complainant is not enjoyable--but are the students at Yale more afraid of being outed than is usual?
Also at issue was the myriad of ways in which complaints were filed. Part of the concern when the initial complaint was filed with OCR in March 2011 by the group of current and former students was the lack of information students had about how and where to address alleged sexual misconduct. Information has been flowing and students are more aware of their options. But are there too many options? Very few complaints were filed with the campus police--which seems to be one of the most obvious places to go. Is this a comment on the Yale campus police? Or on the campus itself?
Most of the complaints were brought to Title IX coordinators. Yay that people know who the Title IX coordinators ARE on campus. But all these complaints are of an informal nature. This article outlines the benefits and drawbacks of an informal complaint system. I think it would be interesting to see how this theory specifically applies to Yale taking into consideration the comments on the campus climate.
And speaking of campus climate...
Another of the controversies at the New Haven campus has been the presence of Sex Week. It was cited as one of the events that contributed to a harmful sexual climate on campus. But President Levin has allowed the week-long event to take place this week because the organizers (who were not named in this brief article) noted an educational purpose for each activity/lecture. Included in the line-up are lawyer Ann Olivarius who was instrumental in sex discrimination and sexual harassment law in the 1970s. Also on the bill is Maggie Mayhem, who works in the porn industry as an actress.
This editorial by a student explains that this year's Sex Week has quite a different tone than last year's. It also provides some anecdotal evidence of the sexual culture at Yale, including his own experience as part of the freshman class a few years ago which was told by their college dean to get to know one another--biblically. He speaks rather thoughtfully about Yale culture and culture at large. It's worth a read and definitely provides more information than other news stories I have tried to find on this subject.
We are sure there is plenty more to come from Yale. The Witt situation still does not seemed resolved (apparently one of the drawbacks of the informal process!), OCR has not completed its investigation or issued findings, and Yale continues to search for ways to successfully meet the needs of its students on these issues.

Commentary on Yale and "Dear Colleague"

There has been a significant amount of press about both the complaint filed by Yale students alleging the university has not done enough to remedy sexual harassment and the Obama administration's "Dear Colleague" letter about dealing with harassment. Often articles and commentary discuss the two together. What has been interesting is some of the backlash. Wendy Kaminer had a piece in the Atlantic last week expressing her libertarian feminist opinion on the complaint and Dear Colleague letter, which again we should note is not a change in the policy--just a reminder. Kaminer, the lonely libertarian feminist, says that the complaint (and I would assume by extension the whole complaint process) is more feminine than feminist because it relies on "the assumption that women are incapable of fending for themselves in the marketplace of epithets or ideas, the belief that women are rendered helpless by misogynist speech and the sexist tantrums of their male peers." Really? We haven't learned by now, especially with preponderance of bullying among young children, that the whole "sticks and stones" argument just doesn't hold water anymore (if it ever did). That words are actions too, that they create an atmosphere, that they construct and reveal power relations. There is no such thing as "pure speech"--words are not just words. I think Kaminer is wrong; this is not "feminine timidity" and women (and some men) hiding behind government rules by using the complaint process. This is feminism. It's actually classic liberal feminism: using the tools already in existence in the current system to change the conditions to make them more equitable for women so they can do things like have equal access to education. I don't see taking action as in any way behaving timidly. Amy Alkon at Mensnewsdaily basically reprints a large section of Kaminer's editorial but with the headline: Feminists Looking to Big Government to Act all Big Daddy. Yeah, words have no power. Also of note is what and who is not being talked about. In her column, Wendy Murphy, lawyer, legal analyst, and adjunct law professor notes that she herself has filed complaints with OCR over the policies on sexual harassment at several campuses--most notably Harvard Law School. The school is "under investigation for a policy of delaying sexual assault hearings on campus until law enforcement officials complete their investigation. This tactic – known as “running out the clock” – is used by many schools as a way of avoiding oversight by OCR because when a school puts off resolving a case until the students involved are on the verge of graduation, violations of Title IX cannot be remedied in any meaningful way." Murphy surmises that Harvard will change its policy before OCR finishes its investigation and that the institution will be praised for doing so. The difference in the publicity is likely because of the filers. Anyone can file an OCR complaint, and it is probably of greater interest to the media and the rest of us that it was 16 current and former Yale students who are sharing their stories. Plus the story allows media outlets to pull up the rather infamous incidents at Yale from the past few years.

Yale students/alums file complaint

Citing a hostile sexual environment on campus, 16 current and former Yale University students have filed a Title IX complaint with the Office of Civil Rights. The complainants have said the university's internal processes for dealing with sexual harassment and misconduct have not been effective. Such conduct has made national news in the past few years. Most notable was last year's incident involving the Delta Kappa Epsilon fraternity. Pledges were publicly chanting on campus "No means yes, and yes means anal"--among other misogynist things. Several years ago, another fraternity's pledges stood outside the campus Women's Center with signs that read "We love Yale sluts." The complaint includes several anonymous testimonies by some of the 16 complainants. OCR will go to the Yale campus to perform its own assessment of the campus climate. Despite the serious nature of this complaint and the incidents that inspired it, it's good to see that Yale students, decades later, still have that activist spirit and Title IX awareness. The photo that is featured on this blog (by permission of 50 Eggs Films) is of a Yale rower protesting the lack of facilities for female rowers in 1976.

Yale settles sexual harassment suit

Somehow we missed this story about an alleged incident of sexual harassment at the Yale School of Drama. A female student was dismissed from the school in 2005 and subsequently filed a lawsuit citing retaliation after she reported sexual harassment in the context of an acting workshop in which the instructor asked students to simulate masturbation as part of a class exercise.
Yale settled for $10,000, the cost of the student's legal fees, and admitted no wrongdoing.
More details on the incident and the lawsuit can be found here.