Fourth Circuit Rules that University's Preliminary Inquiry into Harssment Complaint Does Not Violate Free Speech

Though not precisely a Title IX decision in the usual type for this blog, I was interested in this decision I read recently affirming a university's preliminary investigation of harassment charges stemming from an intentionally provocative student-organized campus event.

The event in question was orchestrated by a student at the University of South Carolina on behalf of student groups seeking to protest their perception of censorship on campus and beyond. The student sought and received the university's permission to hold the event, which showcased symbols like the swastika and posters of racial slurs. University officials also defended the event to those who complained and argued that it was inappropriate. Later, the university received several complaints that the event constituted discrimination and harassment because of the symbols and slurs that it promoted, and because of alleged hostile behavior the encountered there.  University officials called the organizing student, who was named in the complaint, in for a 30-45 minute meeting to discuss the complaints.  A few weeks later, the university informed the student that it had concluded it had no basis for going forward with an investigation.

Nevertheless the student sued the university alleging violation of free speech. Yes, even though the university permitted the event, defended it, and declined to even open a formal investigation of the complaints others made about it, the student alleged that the university's preliminary inquiry into the complaints about the event violated the student's rights under First Amendment. Last week, however, the Fourth Circuit Court of Appeals affirmed the district court's dismissal of this case, rejecting arguments that the preliminary inquiry causes an unconstitutional chilling effect of free speech and is more intervention than necessary to protect the university's interests.

When a university receives a complaint or other information that harassment on the basis of sex, race, or some protected class has occurred, civil rights laws like Title IX require the university to respond in some way. Otherwise, the university could be liable for deliberate indifference. This doesn't mean the university must engage in a disciplinary response every time it receives a complaint. It should, however, do some kind of preliminary investigation to determine if the complaint warrants pursuing. At the very least, this can mean having a conversation with the person named in the complaint to get that person's side of the story, which is what the university did here.

The court's ruling affirms that a preliminary inquiry like the one in this case does not violate the free speech rights of the student against whom the complaint is made. In fact, it protects respondents' rights, since it provides an alternative to a formal investigation in response to every complaint. In my view, the only world in which a university can't even engage in a preliminary inquiry of a harassment complaint is one in which the university can't censored and sanction harassing speech at all (presumably, this is the student's position, since why else would he sue on these facts?).  But as courts have already held, and as this one affirms, there is an outer limit to free speech: harassment that is sufficiently severe and pervasive and disruptive of other students' civil rights in education.    

The student's free speech event at USC apparently did not cross that line, but the university was right to at least follow up with the complaints that said it did.

Decision: Abbott v. Pastides, 2018 WL 3910682 (Aug. 16, 2018).

OCR Investigation Reveals "Concerns and Violations" At Washington State University

This month the Department of Education's Office for Civil Rights entered into a compliance agreement with Washington State University to resolve "concerns and violations" that were revealed by the agency's investigation into the university's handling of sexual harassment complaints.

One of the allegations against the university was its systematic failure to promptly respond to complaints as Title IX requires. So the agency reviewed over 900 files of sexual harassment cases the university responded to between 2010 and 2016. 72 of them were sexual assault matters. The average pendency of these matters from the time the complaint was was received by the university to the time of its final decision was 159 days. More than three-quarters of time, it took more than 100 days, and nearly a third were open for 200 days. While expressing concern about the university's systemic pattern of lethargic resolution, it singled out four instances where it was comfortable concluding that the delay (of 125, 139, 177, and 218 days respectively) constituted a violation of Title IX's prompt resolution requirement, owing to the university's insufficient explanation for the delays and the probability that delay contributed to hostile environment for the complainant. This aspect of OCR's findings indicate that while the agency has revoked the prior administration's interpretation of prompt resolution of sexual harassment complaints as 60 day time frame under usual circumstances, the requirement for "promptness" -- albeit more vague now -- is still good law about which OCR remains concerned.  

The agency also expressed "concerns" that the university's policies that govern the disciplinary process for sexual misconduct provide equal rights to the respondent to present evidence and receive information about the proceeding. Specifically, the agency was concerned about procedural requirements under which:

• complainant is solicited for names of potential witnesses, though the policy does not say to do the same for respondent
• complainant is given information that retaliation is prohibited under its policy, but the policy does not say to also give respondent this information
• complainant is given the opportunity to provide input about the appropriate resolution path --i.e., whether the university uses an informal method of resolution instead of the formal process --  but the policy does not say to get input from the respondent.  

I agree that the first two bullet points are aspects of "equitable" procedures as the regulations require. The third one could be problematic depending on what the university does with the input it receives from the respondent. Clearly the selection of formal disciplinary procedures can't be subject to the respondent's consent; that would be inequitable to the complainant.  But such a result is not a necessary consequence of permitting the respondent to give "input" about this choice.

The university has agreed to address the violations and concerns by amending its policies and improving training. It will also address the resource deficiency that caused or contributed to the promptness violations.  It also agreed to send an apology letter to two of the complainants affected by delay.  (I've ever noticed apology requirements in resolution agreements before, so that struck me as interesting.!)

NSF Will Require Grant Applications to Disclose Sexual Harassment

The National Science Foundation announced last week that it will require institutions seeking foundation grants to disclose in their proposals any institutional findings of sexual harassment (or other harassment) by the grant's primary investigators or other personnel. Additionally, a grant-recipient must report any grant personnel are put on administrative leave over harassment allegations. This obligation extends throughout the period of time the grant is in effect, and could result in the NSF's suspension of the grant. 

Because NSF is a federal agency that distributes federal funds, it has a responsibility independent from Department of Education's to ensure that its grant decisions do not violate Title IX requirement that taxpayer dollars are not used to support sex discrimination. Consistent with this requirement, the NSF has its own Title IX regulations and conducts routine, random reviews of academic departments that it supports with grant money. It has also already denounced sexual harassment in a 2016 public statement.

The example of the NSF is an important reminder that the Department of Education is not the only agency with power to hold institutions accountable for sex discrimination and sexual harassment. As the current DoE is backing off of the prior administration's Title IX enforcement efforts around sexual misconduct, the efforts of other agencies will become increasingly significant. Notably, the NSF has more political independence to distance itself from the current administration, since its director was appointed by President Obama in 2014 to serve a six-year term.

University of Minnesota-Duluth to Face Trial on Coach's Sex Discrimination and Retaliation Claims

Last week the federal district court in Minnesota ruled on the University of Minnesota's motion for summary judgment  in a multi-count lawsuit filed against it by three female former coaches at the Duluth campus, who had alleged a variety of discrimination claims arising from their employment. Though the court granted summary judgment on several of the plaintiffs' claims, it refused to dismiss Coach Shannon Miller's claim that sex discrimination motivated the university's decision not to renew her contract, and her claim that the university retaliated against her for raising Title IX concerns. Those issues are now heading for trial scheduled in March.

Sex discrimination. UMD defended its decision not to renew Miller's contract on two grounds: the poor performance of the women's hockey team, which Miller coached, and the lack of "return on investment" for continuing to pay Miller's relatively high salary. Yet the court acknowledged, there is sufficient evidence that jury could conclude that these explanations were in fact pretext for sex discrimination. Specifically, the court identified: (1) evidence that the men's hockey coach was retained comparable or worse performance of his team; (2) evidence that the department used different criteria to evaluate Miller's renewal than the renewal of the men's team's coach; (3) the fact that the department gave inconsistent explanations for Miller's nonrenewal (saying first it was because of finances, then later arguing it was based on performance); evidence that the university's financial situation "was not as dire as it claimed"; and (5) the fact that the department did not pursue alternatives to nonrenewal that would have been consistent its ostensible concern about finances, such as asking Miller to take a pay cut or seeking donors to fund her salary. 

Retaliation.  The court also concluded there was sufficient evidence on which a jury could conclude that the university had retaliatory motives, in addition or instead of a desire to get rid of Miller because of her sex. Miller engaged in protected conduct by complaining to athletic department administrators about Title IX violations that affected her team. These complaints "continued until shortly before" the athletic director decided not to renew her contract. This timing, along with other evidence, could convince the jury that UMD terminated Miller to punish her for advocating for Title IX.  

Hostile Environment Based on Sexual Orientation. The court dismissed the claims of all three plaintiffs that the athletic department cultivated and tolerated a hostile environment on the grounds that they are lesbians.  After acknowledging that these claims were "strong" the court nevertheless dismissed them on the grounds that federal law does not expressly prohibit discrimination on the basis of sexual orientation. (While Minnesota law does prohibit sexual orientation discrimination, the court concluded that it did not have jurisdiction over these state law claims.) This seems like an appealable issue to me. The nearby Seventh Circuit has reasoned that sexual orientation discrimination is a form of sex discrimination, and other circuit courts may be on the verge.  An appeal here could give the Eighth Circuit Court of Appeals an opportunity to get on board with this emerging and civil-rights expanding interpretation of sex discrimination under Title VII and Title IX. 

Equal Pay. The court also dismissed Coach Miller's Equal Pay Act claim. Even though she was paid less than her men's team counterpart, a male, the court nevertheless determined that his job was not comparable to hers because the men's hockey team draws a bigger audience, more revenue, and as a result puts more pressure on him to win.  This outcome is disappointing but not surprising as other female coaches' equal pay act claims have failed due to judges' unwillingness to see equivalence between coaching women and coaching men. Unfortunately, the rationale permits sex discrimination in the marketplace to justify lower salaries for female coaches who work just as hard and have no control over the public's bias.  

Decision is: Miller v. Bd. of Regents of the Univ. of Minn., 2018 WL 659851 (D. Minn. Feb. 1, 2018).

What has been happening at Auburn?

Well whatever has been happening, it has been happening for a few years. But news of problems within Auburn University's softball program only emerged a couple of weeks ago when a former player filed a Title IX complaint alleging that an associate coach was sexually harassing and having sexual relationships with players. But the investigation into associate head coach Corey Myers's actions by the school began in a year ago spurred by anonymous ethics complaints.

Yet Myers did not leave the program until March (he took a 2-week leave of absence when the investigation began*) when he resigned citing the need to be with his family. He is the son of head coach Clint Myers who, not coincidentally, announced his retirement right before news broke of the Title IX complaint and who also said it was due to the desire to spend time with his wife, children, and grandchildren. The elder Myers is a highly regarded figure in intercollegiate softball having coached the very successful (in terms of wins) Arizona State Sun Devils before going to Auburn in 2014. He has also worked with USA Softball.

What has been published about the harassment and conduct of the younger Myers and how it was handled by Auburn suggests a cover up. The timing of the elder Myers's retirement announcement supports that hypothesis. Also, the athletics director said in late April 2017 that he had no knowledge of an investigation. And when Clint Myers told the press in early April that he would welcome his son back to the program and a reporter asked about a Title IX investigation he seemed offended that such a thing was even brought up.

The player who filed the Title IX complaint (which included allegations of both the abuse and the cover up) was a redshirt player who was cut following the end of the 2017 season. This scenario often leads to a sour grapes defense. However, the complainant's story has been corroborated by others you played under Myers and Myers. One player, who transferred to another school, showed the media suggestive text messages sent by the younger Myers to another Auburn player (she took pics of the texts). When these texts were brought to the administration as evidence, a member of the athletic department told those seeking redress that they could be arrested for sharing those messages. So it seems the athletics department was engaging in intimidation and cover up based on this version of events. Other former players have also come forward with stories of illegal behavior and attempts to get the school to address it. 

It is clear that the situation created tension within the team. The player who was receiving the texts did not implicate Corey Meyers during the Fall 2016 investigation. This caused division among the team even into spring 2017. An incident involving an Auburn player in an altercation with University of Florida head coach Tim Walton during the post-game high-five line now has some context. She and other members did not want to ride the bus with the uncooperative player. In other words, this situation and the way the staff and the administration dealt with it caused problems within the team. To an outsider it looked like a fairly successful season with a loss to a good team.

No word on whether or when OCR will investigate.



* according to one player, team members were encouraged to go to the administration during this time and advocated for Corey Myers's return.

Study Examines Faculty-on-Student Harassment

Professors Nancy Chi Cantalupo and William Kidder have posted a forthcoming study about an aspect of campus sexual misconduct that warrants more public discussion: the sexual harassment of students by faculty members.  They studied media reports as well as lawsuits and administrative complaints, amassing a data set of over three hundred cases. As they put it in the abstract,

Two key findings emerged from the data. First, contrary to popular assumptions, faculty sexual harassers are not engaged primarily in verbal behavior. Rather, most of the cases reviewed for this study involved faculty alleged to have engaged in unwelcome physical contact ranging from groping to sexual assault to domestic abuse-like behaviors. Second, more than half (53%) of cases involved professors allegedly engaged in serial sexual harassment. Thus, this study adds to our understanding of sexual harassment in the university setting and informs a number of related policy and legal questions including academic freedom, prevention, sanctions, and the so-called “pass the harasser” phenomenon of serial sexual harassers relocating to new university positions.

Here is a link to the study, which will be published in the Utah Law Review.

Sexual Harassment Roundup

Here is a summary of a few recent decisions in cases where the plaintiffs sought to hold educational institutions liable under Title IX for failing to adequately respond to peer harassment and assault.

The Sixth Circuit Court of Appeals upheld a lower courts summary dismissal of a Title IX claim against a Tennessee school district alleging deliberate indifference to pervasive bullying of the plaintiff.  The appellate court affirmed that the deliberate indifference standard "sets a high bar for plaintiffs." Here, school officials respond to individual accounts of bullying by a variety of methods including investigation and discipline, as well as proactive measures like separation and monitoring. The court noted that it is possible for officials to demonstrate deliberate indifference by continuing to rely on the same methods that are proven to be ineffective at eliminating the problem. But according to the court, that is not what happened here. School officials employed a variety of responses that were proportionate to the offense and effective at addressing individual sources of bullying.  There were almost no "repeat offenders" nor were there apparent connections between various bullies who contributed to the problem over time.  Accordingly, the appellate court held that the district court was correct to determine that the school officials' response was not clearly unreasonable as a matter of law.  Decision: Stiles ex rel. D.S. v. Grainger County, 2016 WL 1169099 (6th Cir. Mar. 25, 2016).

A federal court in Virginia dismissed a plaintiff's Title IX claim against Bridgewater College that had alleged the college was deliberately indifferent in its response to her report of sexual assault by a fellow student.  Specifically, she had alleged that the college violated its own policy when it discouraged her from simultaneously reporting the matter to the police, failed to advise her of her rights, didn't allow her to present witnesses, and didn't keep her involved and advised of the disciplinary process. In rejecting this argument the court held that the judicial standard of institutional liability for damages under Title IX is not conclusively satisfied by claims that the college violated its own policy.  Instead, the college must be "deliberately indifferent" to the plaintiff's claim, which is a higher standard. Here, the college promptly conducted an investigation, held a disciplinary hearing, and suspended the respondent--a response that cannot be classified as "indifferent". This case illustrates the difference between the judicial standard for institutional liability where money damages are at stake, and the Department of Education's compliance standard to determine whether a college can continue to receive federal funding. Because the standards are different, the fact that the plaintiff's allegations may have constituted violations of the Department of Education's Dear Colleague Letter did not enter in to the court's analysis. Decision: Faccetti v. Bridgewater College, 2016 WL 1259415 (W.D. Va. Mar. 30, 2016).

In Connecticut, a federal court dismissed a Title IX claim against Torrington School District in a case challenging the school district's response to prolonged bullying of the plaintiff by other students.  The bullying consisted of verbal harassment, much of it by fellow members of the high school football team, as well as an incident of sexual assault.  The court ruled out that the school district could be liable for its response to the sexual assault, which occurred over the summer and off school grounds, because when it was eventually reported to school officials, they responded immediately to the report by separating the plaintiff from the bullies. The court ruled that the rest of the harassment was outside the scope of Title IX because there was no evidence that the bullies were motivated by the plaintiff's gender.  The court rejected the plaintiff's contention that some of the bullies' slurs, like "bitch," "pussy," and "faggot," satisfied this element, a conclusion that was surprising to me, given those words in isolation connote effeminacy and even more so in the context of a football team, where masculinity is rigorously policed.   Decision: Doe v. Torrington Public Schools, 2016 WL 1257819 (D. Conn. Mar. 30, 2016).

Two Sexual Assault/Harassment Cases Withstand Motions to Dismiss

In two separate cases, courts recently rejected universities' efforts to dismiss Title IX lawsuits early in the litigation:

First, a federal court in Virginia refused to dismiss a Title IX lawsuit (which we earlier blogged about here) against James Madison University to challenge the university's response to reports by the plaintiff that she had been sexually assaulted by fellow students on a spring break trip to Florida, who then posted a video of the incident. The court agreed that the plaintiff's allegation that the university's response was deliberately indifferent because it refused to address the video unless the plaintiff filed a formal complaint was a sufficient basis for liability.  Waiting for a student to file formal complaint to take any action might be an appropriate response in circumstances where the allegations are vague or uncertain, but here, there was no such uncertainty due to the video evidence. Additionally, the plaintiff's harassment was ongoing as long as the video was still being disseminated.  For these reasons, a jury could view the university's failure to take action about the video without a formal complaint as deliberate indifference.  Having so determined, the court did not need to consider whether the university's decision to punish the assailants with "expulsion upon graduation" was also an example of deliberate indifference. But I suspect this issue will be relevant as the litigation in this case continues. Of note, OCR is also investigating possible Title IX violations arising out of this same matter.  Butters v. James Madison University, 2015 WL 6825420 (W.D. Va. Nov. 6 2015).

In the second case, UCLA failed to convince a federal court to dismiss a case filed by a female graduate student who alleged the university failed to adequately respond to reports of sexual harassment by a male professor.  UCLA argued that the student was not subject to any further harassment after she had complained about the professor (the plaintiff disputed this).  However, court noted, the plaintiff is not required to show further harassment as a way of demonstrating the university's deliberate indifference. "The Court agrees with plaintiffs that placing undue emphasis on whether further harassment actually occurred to gauge the responsiveness of an educational institution would penalize a sexual harassment victim who takes steps to avoid the offending environment in which she may again encounter the harasser." Takla v. Regents of the Univ. of California, 2015 WL 6755190 (C.D. Cal. Nov. 2, 2015).

Advocates Urge Government to Clarify Title IX's Application to Social Media Sites Like Yik Yak

The Chronicle of Higher Education reported yesterday on recent efforts to clarify Title IX's application to sexual and other forms of harassment perpetrated by anonymous users of social media sites like Yik Yak.  A letter to the Department of Education signed by over 70 advocacy groups presented research and examples to illustrate the problem of social media harassment, where the anonymity of such fora allows users to post comments that range from rude to hostile, including actual threats of bodily harm, without any accountability. The advocates call on the Department of Education to issue guidance that specifically addresses schools' and universities' legal obligation to address harassment that occurs on such forums.

The Department of Education already insists that harassment that utilizes technology such as cell phones and the Internet as actionable as long as it rises to the level of a hostile environment.  According to its 2010 guidance, "Harassment creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by the school."

The advocates' letter presented numerous examples of harassment on Yik Yak that rises to this level.  Yet, they argue, many schools have taken the position that there is nothing they can do to address harassment that occurs in this form due to the anonymity of the postings.  They also suggest that the Department of Education address schools' concerns about students' constitutional rights to free speech, by clarifying when online harassment crosses the line from protected to nonprotected conduct, and affirming schools' obligations to address the latter.  The letter contained specific suggestions for the Department of Education to consider including in such guidance, including responses like:

• investigating all reports of online harassment, whether or not perpetrators are “anonymous”;
• initiating campus disciplinary proceedings against individuals engaging in online harassment;
• geo-fencing of anonymous social media applications that are used to threaten, intimidate, or harass students; 
• barring the use of campus wi-fi to view or post to these applications; 
• prompt reporting of anonymous online threats of physical and sexual violence to police and the social media application, as appropriate; 
• monitoring social media applications to ensure immediate response to online harassment and intimidation; providing counseling and appropriate accommodations for targets of online harassment and intimidation and others affected by it; and
• conducting mandatory training or intervention programs for students, faculty, and staff, including Title IX Coordinators and other appropriate administrators, on the use of these social media applications to engage in harassment and intimidation. 

I have no basis for predicting whether or not the Department of Education will respond to the advocates' suggestion and issue the guidance that they request.  But I can say that even in the absence of such guidance, the agency could still take the position that a school or university's indifference to Yik Yak harassment violates Title IX, which is already defined to require a response to actionable harassment  that occurs in cyberspace. So even if the Department does not formally endorse them, schools and universities should consider utilizing recommendations like these in appropriate circumstances. From a compliance standpoint, doing nothing is probably already a risky course of action.

Sexual harassment roundup

Here is a roundup of some recent judicial decisions in Title IX cases alleging institutional liability for sexual harassment. 

A cheerleading coach's teasing of a female student's "saggy boobs" was inappropriate but not sufficiently severe to constitute sexual harassment within the meaning of Title IX.  Nor was the school district deliberately indifferent to the student's complaint, as school officials investigated the matter, suspended the coach for two weeks, and reprimanded her.  Doe v. Georgetown County Sch. Dist., 2015 WL 5923610 (D.S.C. Oct. 9, 2015).

A school district was not liable to a female student for sexual assault by a male student in the same special education program. School officials were not alleged to have notice of any past instances of sexual the male student's sexual misconduct, except one incident in which he had asked a female classmate if he could touch her (and did not, apparently, touch her). Even if this incident could be found to have put school officials on notice that he was a sexual threat to other students, school officials did not respond to that incident with deliberate indifference but instead subjected the student to enhanced supervision and separated him from female student he had propositioned.  Swanger v. Warrior Run Sch. Dist., 2015 WL 5830068 (M.D. Pa. Sept. 30, 2015).

Pervasive bullying that included keying the word "cunt" into a female classmate's car, but that otherwise involved no reference to sex or gender, did not constitute harassment "because of sex" for purposes of Title IX. Hankey v. Town of Concord-Carlisle, 2015 WL 5737136 (D. Mass. Sept. 30, 2015).

A federal judge in Ohio refused to dismiss a Title IX claim against a vocational college after determining material facts were in dispute that could, if proven, give rise to liability for sexual abuse of a student by a culinary arts instructor. The plaintiff, who claims she was seduced by the instructor into a sexual relationship, alleged that the college had notice of the instructor's bad boundaries, including inappropriate comments and touching.  However, a trial is warranted to determine precisely how much of the instructor's earlier bad behavior had been reported, and, consequently, whether the college's response -- which included investigating the instructor and subjecting him to some monitoring, but not removing him from the classroom or limiting his contact with students -- was tantamount to indifference.  Doe v. Springfield-Clark Career Technology Center, 2015 WL 5729327 (S.D. Ohio Sept. 30, 2015).

A university was not deliberately indifferent to a graduate student's report of sexual harassment by a professor, having responded to the student's complaint by conducting an investigation, changing her work assignment and office location, and supervising future meetings between the student and professor.  The student was, however, allowed to continue to litigate her Title VII hostile environment claim, because Title VII does not use a deliberate indifferent standard.  The fact that the professor was the student's supervisor puts the burden on the university to prove to a jury that they exercised "reasonable care" to prevent/address the harassment and that (by quitting just one week after filing her complaint) the complainant herself unreasonably failed to avail herself of preventive or corrective measures adopted by the university. Jenkins v. University of Minnesota, 2015 WL 5521746 (D. Minn. Sept. 18, 2015).

Roundup of School District Sexual Harassment Cases

Here are some updates in Title IX cases involving sexual harassment in schools:

• A federal court ruled that bullying consisting of pulling down another boy's pants, one time in front of a girl, was not harassment "because of sex" for purposes of Title IX. Morgan v. Town of Lexington, 2015 WL 5634463 (D. Mass. Sept. 24, 2015).  

• A principle's arguable knowledge of a volunteer teacher's "inclination to engage in inappropriate relationships with school-age boys," in combination with the school district's lack of effort to limit the teacher's access to its students, precluded summary judgment on Title IX claim. K.S. v. Detroit Public Schools, 2015 WL 5460674 (E.D. Mich. Sept. 16, 2015). 

• School officials' failure to respond to reports of one student's sexual abuse of various other students by doing anything other than documenting the incidents and, in one case, moving the victim to another dorm room, could constitute deliberate indifference for purposes of Title IX.  BPS v. Colo. Sch. for the Deaf and Blind, 2015 WL 5444341 (D. Colo. Sept. 16, 2015).

• Dispute as to whether or not parent had told school officials about sexual misconduct by an adult male special needs student precluded dismissal on summary judgment.  Kauhako v. State of Hawaii Bd. of Educ., 2015 WL 5312359 (D. Ha. Sept. 9, 2015).

• School district's decision to defer to police department's investigation was not deliberately indifferent, where it continued to prevent the perpetrators from returning to school and took other steps to measure and address safety.  Doe v. Bibb County Bd. of Educ., 2015 WL 5063746 (M.D. Ga. Aug. 27, 2015).

• A school cannot be liable under Title IX for a teacher's sexual advances on a student, where school officials acted swiftly and decisively to force the teacher's resignation upon learning of his misconduct.  Doe v. Crown Point Sch. Corp., 2105 WL 5038093 (N.D. Ind. Aug. 26, 2015).

• Title IX claim alleging school district's failure to respond to bullying directed at the plaintiff because of his "effeminate mannerisms and way of speaking" adequately alleged discrimination on the basis of sex. J.R. v. N.Y. City Bd. of Educ., 2015 WL 5007918 (E.D.N.Y. Aug. 23, 2015). 

Student Discplined for Off-Campus Conduct and Tweets Wins Appeal on Narrow Grounds

The Kansas Court of Appeals recently affirmed the decision of a lower court to dismiss a lawsuit by a student disciplined for sexual harassment and other offenseses, but in so doing, side-stepped the contentious questions about Title IX's applicability to off-campus conduct and its conflict with freedom of speech.

In 2013, the University of Kansas expelled Navid Yeasin for threatening and harassing a female classmate he had been dating, who is referred to in the case as "W."  Yeasin and W. had had an altercation off-campus over what Yeasin perceived as W's infidelity. Following this incident, Yeasin used Twitter to post what seem to be reasonably interpreted as harassing and threatening tweets directed at W. After a disciplinary hearing, Yeasin was expelled for the off-campus altercation as well as the tweets, the latter of which violated the University's no-contact order and were found by the hearing panel to constitute sexual harassment: unwelcome and sufficiently severe to have interfered with W's educational opportunities. 

Yeasin sued the university, arguing that the university did not have the authority under Title IX to discipline him for off-campus conduct or for constitutionally protected speech. The lower court, as well as the Court of Appeals, granted relief to Yeasin, but on narrow grounds.  The university's sexual harassment policy by its terms only applied to conduct that occurs on campus or at university-sponsored events.  For this reason, the university had no authority to expel Yeasin. The court did not reach the question of whether Title IX permits a university to discipline a student for off-campus conduct or whether Yeasin's tweets were protected by the First Amendment.

The take-away from this decision is therefore a narrow one: a university's authority to discipline a student for off-campus conduct starts with a clear and valid policy that asserts such jurisdiction.  If Title IX or the Constitution provide outer limits to a university's authority in this regard, those limits can only be tested in a case where a university disciplines a student for off-campus conduct in reliance on its clear and valid policy.

Decision: Yeasin v. University of Kansas, 2015 WL 561617 (Kan. Ct. App. Sept. 25, 2015).

"It's safer to be quiet": Cultures of retaliation~Cultures of sexual violence

So many voices have created the current level of visibility and activism around campus sexual assault. This week we are hearing them speak about retaliation in light of recent events that reveal the connection between cultures of sexual violence and cultures of retaliation against victims and allies who speak out.

Arguably the most visible story this week is out of New York. Columbia University graduation was this past week and Emma Sulkowicz was among the class of 2015. Sulkowicz has been carrying a mattress around campus this past year as part of a performance art piece. She vowed to keep carrying the mattress until Columbia kicked her rapist off campus. They didn't. There is an extensive back story to Sulkowicz's experience which is marked by administrative ineptitude that has never been explained or accounted for. Columbia should be apologizing to Sulkowicz but instead the university president refused to shake her hand* at last Tuesday's Senior Day ceremonies where Sulkowicz, with the help of friends, carried the mattress across stage; the last time she would carry it.

Her assailant, Paul Nungesser, also graduated this week. He was on stage a few minutes prior to Sulkowicz. He has filed a lawsuit against the school in relation to Sulkowicz's project/protest.

There has been great support for Sulkowicz, and the mattress project has inspired other activists across the country to take up the mattress as a symbol. But there has also been significant retaliation. The university contends that President Bollinger did not slight Sulkowicz--who made a concerted effort to make eye contact and shake his hand--but rather that the mattress was in the way. Given that various administrators worked very hard to keep Sulkowicz from carrying the mattress on stage, I find it hard to believe that the lack of a handshake was really due to the fact that the mattress was blocking such a gesture. Only symbolically!

Sulkowicz said she would not participate in the ceremony if she was not allowed to carry the mattress. Because of the attention to her case, this would have been even worse PR for Columbia. Though the recent posters calling Sulkowicz a "Pretty Little Liar" have not been great either.

These posters, found around campus, are part of a larger effort to silence and discredit Sulkowicz and all those who would think about reporting their assaults, those who support victims, and even those who participate in investigations (which I will discuss in a moment).

This anonymous piece in Jezebel speaks to the culture of retaliation at Columbia. Written by the woman who reported that Nungesser sexually assaulted her--a year before what he has called consensual sex with Sulkowicz, the author details her experiences and why she remains anonymous.   She is one of 4 people who report being sexually assaulted by Nungesser. The very visible and violent backlash against Sulkowicz had a silencing effect on this woman--who has only ever commented anonymously about her case--her and most likely other victims. There are so many pieces of this editorial I would like to quote (I recommend reading it all) but the most chilling phrase comes towards the end: "it's safer to be quiet."

That is certainly what a Stanford undergraduate learned this past semester. (Not a great week for Stanford.) This student is being held responsible--by the masses--for getting the Sigma Alpha Epsilon fraternity kicked off campus. She never reported the behavior she saw on pledge night; behavior that she found offensive and so left after 30 minutes. But she was asked to give a statement as a witness. She was not assaulted and never claimed to be. Somehow fraternity members found out her name and began harassing her. So despite the other factors that contributed to SAE's expulsion, this undergrad is being blamed. And when the harassment started against her specifically, this triggered an additional investigation into the fraternity. It was going to happen with or without her participation and after much thought (given her that her initial participation had gone so badly) she did decide to participate.

Her editorial is also startling and speaks to the climate of retaliation on college campuses that is barely (if at all?) being addressed as part of these larger issues.  She writes:
"My only chance to protect myself was to participate in the same Title IX process that had made me a target in the first place. I knew that any decision I made would affect not just me, but the culture surrounding reporting on campus. I am a victim of harassment and retaliation, and this experience has been among the hardest I have ever had to deal with. I cannot imagine what it must be like for victims of violence and assault. Given the retaliation I faced for merely being thought to have reported harassment, I don’t know if I could face actually reporting a case of assault. And I am not willing to become a cautionary tale, an example of the reasons why people shouldn’t report."

These stories, in addition to the ones presented in The Hunting Ground,  of women who spoke out  all include anecdotes about other victims who come to them for advice because they are too afraid to report. Too afraid of the treatment they will receive by administrators, by law enforcement, and from their peers. This is an integral part of how rape culture is perpetuated and more needs to be done specifically addressing this component.

Punishment and reforms for Stanford band

This week Stanford University announced the results of its investigation into the university's marching band. At issue was a climate of sexual hostility marked by harassment of members, especially upon initiation. In addition there were violations of hazing and alcohol policies. This has all resulted in a ban on the band's travel to away events next year. They will perform at home events and other unnamed non-athletic events.

We had not heard of this situation; it certainly has not made headlines like the OSU band scandal. (Though apparently the band has a reputation and have a history of rude behavior at schools.) The descriptions--admittedly vague--of the incidents suggest common issues among bands (and probably other college groups): alcohol, initiation rituals based on public humiliation, and sexual harassment/assault. What is interesting is the way these problems are framed when the group in question is a college marching band. The Dean of Residential Education commented on the findings and punishment: "The university's objective is to ensure a safe and harassment-free environment while honoring the band's traditions and its unique, irreverent identity." So band hazing/harassment is because they are quirky? When sports teams do this it's about team camaraderie. When fraternities and sororities do it, it's about loyalty to the organization.

It's all a form of violence. The commonality is that students largely think these things are fine and they are "part of the culture."

The band has the option of  appealing their partial suspension.

A few weeks ago we heard about another problematic culture within a university group: the swim team at Western Kentucky. Their investigation was more explicitly Title IX focused as it looked into numerous accounts of hazing. The punishment at WKU was far more extensive: three fired coaches, a 5-year suspension, and at least one athlete who will face criminal charges.

Again, the exact events that occurred within the Stanford marching band and the WKU swim team are unknown and comparing is impossible. However...there was no discussion of adult leadership in the Stanford case. I find this curious. Where were the university employees in all this? There are, of course, numerous cases of hazing within intercollegiate athletics where coaches claim they had no idea what was going on. But that excuse that the non-student adults are really oblivious as to what their charges are up to is not as readily accepted anymore as evidenced in the WKU case and of course in the OSU band case where the director was fired.

Hazing and harassment cases call for a greater questioning of the practices of any group culture and also inquiring into how that culture has been created and perpetuated. Did this really happen at Stanford?

OCR's Latest Report to the President, the Secretary of Education, and Congress

This week the Department of Education's Office for Civil Rights released its latest biannual report to the President, Secretary of Education, and Congress summarizing its work in fiscal years 2013 and 2014.  The report addressed OCR's efforts to enforce not only Title IX, but also Title VI (race and national origin discrimination), the Rehabilitation Act (disability discrimination) and other civil rights laws applicable to education.  According to the report, the agency received almost 20,000 complaints in that two-year period, 27% of which addressed sex discrimination. In contrast, disability discrimination takes up almost half of OCR's docket.

Athletics. Complaints about athletics constitute the overwhelming majority of the agency's Title IX-related work, notwithstanding the rising number of sexual assault and harassment complaints that we've seen in recent years.

OCR does not break down its data on athletics complaints to tell us how many came from college versus K-12, but it is probably the case that a vast majority of these complaints challenged athletic disparities at the high school level.  Nor does OCR provide an easy way to compare this data over time.  However, for some context, it is worth noting that the OCR's last report covered a four year period of time (2009-2012) and reported half as many athletics complaints (1,264). The current report provides a number of examples of athletics-related enforcement, including a resolution agreement that it reached with Southeastern Louisiana University in 2014, in which the university agreed to do a better job assessing interests and abilities under prong three and provide women's teams with access to facilities of comparable quality to their men's teams.  It also noted several resolutions with public school districts such as Indianapolis Public Schools. Unfortunately, the report did not provide any insight into OCR's handling of "mass complaints" filed against multiple school districts in a single state, which probably constitute a vast majority of the OCR's 3,609 figure.

Sexual Violence. OCR reported to have resolved 90 complaints involving sexual violence at the K-12 and college level during 2013-14. 25 of those resolutions were by voluntary resolution agreement, which is the agency's preferred way of handling findings of noncompliance.  While most of the illustrative examples OCR describes involve colleges and universities (Tufts and Montana, for example), the agency also took enforcement action against at least one K-12 school district for its failure to prevent and respond to sexual violence and harassment.  

LGBT Discrimination. OCR's report described having resolved two cases, one against a California school district, and another against an unnamed college, in ways that ensured transgender students' rights to be protected from harassment and be allowed to access facilities according to their gender identities.  To my knowledge, this is the first time OCR's report has described Title IX enforcement of this nature. The agency also described more generally a resolution agreement that required a charter school to conduct "age-appropriate student education on sexual harassment and non-conformity with gender stereotypes." 

OCR also briefly noted Title IX enforcement efforts related to pregnancy discrimination and retaliation claims.

Court Dismisses Title IX Count Against Pepperdine

In December, we blogged about a lawsuit filed against Pepperdine University by two college basketball players who allege they were harassed and mistreated by their by their coach and other university officials because they are lesbians.  Last week, a federal court in California narrowed the scope of their lawsuit by dismissing their Title IX claim, along with some of their right to privacy claim.  (The court refused to dismiss the plaintiffs' claims under California state law, which prohibits sexual orientation discrimination by educational institutions that accept state funding.)

The court dismissed the plaintiffs' Title IX claim because it alleged discrimination on the basis of their sexual orientation, specifically, the coach's concern that they were dating each other, which is not prohibited under Title IX.  Yet, the court acknowledged that that sex discrimination includes targeting people who do not comply with stereotypes associated with their sex, and granted the plaintiffs leave to amend their complaint to add allegations to support that as the basis for the discrimination they experienced at Pepperdine. 

As I noted in my earlier post, I was rooting for this case to push the courts to adopt a broader version of the sex-stereotype theory, one that accepts same-sex orientation as the type of gender nonconformity protected under sex discrimination bans.  So far, gay and lesbian plaintiffs have only succeeded in challenging discrimination due to some visible gender nonconformity, such as in one's appearance or mannerisms, although the EEOC has adopted the broader interpretation.  I wonder if the plaintiffs will add allegations of discrimination due to gender nonconforming appearance to their complaint, and/or take the opportunity for future litigation on its amended complaint to urge the court to accept discrimination motivated by the fact that they were women dating each other as a form of gender nonconformity discrimination actionable under Title IX.

Videckis v. Pepperdine University, 2015 WL 1735191 (C.D. Cal. Apr. 15, 2015).

Utica College Selective Deploys Title IX Excuse

The student newspaper at Utica College apparently has a tradition of publishing a satirical issue on   April Fools Day.  This year's issue featured some off-color humor including, as described in this article, a "sexually explicit bingo game featuring derogatory remarks toward women," and a "photo depicting a woman with a beard as the school’s most eligible bachelorette."

I know, yuck. But when I heard that the college president censored the issue because of concern for "Title IX litigation" I have to say, it sounded to me like another case of using the statute as an excuse to justify an unpopular decision.  To bring a Title IX lawsuit, a plaintiff has to challenge harassment that is so "severe or pervasive" that it interferes with the plaintiff's ability to get an education. Two offensive pages in the student newspaper are nowhere close to that standard.  I have no opinion on whether the paper should have been censored, but I object to the "Title IX made us do it" excuse, which already gets plenty of play when college athletic departments cut men's teams.  Title IX does not micromanage institution's decisions in that context, and it does not micromanage their reactions to the student paper either. Censor or don't censor, but don't misrepresent the scope of Title IX as enabling a lawsuit over everything that causes offense.  The statute has enough haters already. 

Moreover, it appears that Utica's concern over Title IX litigation is limited to the student paper. At a school where women make up over 56% of the student body, only 39% of athletic opportunities are in women's sports.  That's a 17 percentage point disparity and among the most egregious I've seen in present day.  If Utica College is really so litigation risk adverse, perhaps in addition to censoring the paper, it also ought to add a couple more women's teams.

Jury Sides With School District in Basketball Hazing Case

Earlier this month, a federal jury in Tennessee delivered a verdict in favor the Rutherford County Board of Education, which had been sued by the family of three girls who alleged they were harassed and retaliated against when they complained that another member of their high school girls basketball team had poking them in the buttocks (a practice described during the litigation as "goosing" or "cornholing").  In August of this year, we noted that a federal judge had cleared the way for trial by denying the board's motion for summary judgment, a ruling that the plaintiffs could potentially prevail if their evidence was persuasive to a jury.  But after the trial was held this month, the jury was apparently not persuaded that school officials responded inadequately to their reports of the incident, and that they had appropriately disciplined the offending player.  Jurors apparently also believed the school's explanation that the girls had been kicked off the team for missing practice, not in retaliation.   According to the press, one of the plaintiffs six claims did prevail but the jury found damages in the amount of only one dollar.  (The court records are sealed because of the minor status of the plaintiffs, so I could not investigate further as to which claim this may have been.)

OCR Concludes Compliance Review of Ohio State

The Department of Education's Office for Civil Rights announced that it has concluded a Title IX compliance review at the Ohio State University that the agency commenced at its own initiative in 2010.  OCR determined that OSU's written policies and procedures for responding to sexual harassment and sexual violence did not comply with Title IX requirements such as by failing to designate reasonable timeframes for the major stages of the disciplinary process, failing to extend the policies to harassment committed by third parties, and failing to define sexual harassment to take into consideration the subjective (as well as objective) perspective.

In response to these and other findings, the agency negotiated a resolution agreement with the university that obligates OSU to make necessary revisions to come into compliance.  In particular, OSU is obligated to:

• Streamline and revise certain policies consistent with the law; 
• Review and confirm the proper handling of sexual harassment/violence complaints and reports since the 2011-12 academic year; 
• Expand sexual assault and harassment training programs to include all members of the university community – including students, faculty, administrators, and university police; and 
• Establish a campus focus group to provide input on strategies for ensuring that students understand their rights under Title IX, how to report possible violations, and Ohio State’s obligation to promptly and equitably respond to Title IX complaints. 

Now that the agency has concluded its compliance review at Ohio State, the university is no longer in the company of the eighty-some other colleges and universities with pending Title IX investigations.  (By way of background regarding OCR's investigation methods, most of its investigations result from complaints that the agency receives, but a small percentage of are conducted proactively by the agency's own initiative -- with OSU's investigation falling into that latter category.  Another example of a proactive compliance review was the SUNY-system review that concluded in a similar manner in 2013.)

Another contextual point worth making is that the agency's review commenced long before the problems of sexual harassment and sexualized climate of Ohio State's marching band came to light.  Yet, OCR has taken the opportunity of its pending investigation to review and endorse the university's response to that matter, which included terminating the band director and as well as implementing other structural changes to prevent similar problems going forward.  In the press release announcing the resolution agreement, Catherine Lhamon, the Department's Assistant Secretary for Civil Rights "applauded" the university for setting "clear and vitally important expectations for a community-wide culture of prevention, support, and safety," and for serving as an example of "strong leadership.. to eradicate a culture of silence related to sexual harassment." As Ohio State endured criticism from the band director's supporters who believe his termination was an over-reaction, it no doubt appreciates the Department's inclusion of this public statement of support.

High School Basketball Hazing Case May Go to Trial

Last year we posted about a lawsuit filed in federal court in Tennessee, in which the plaintiffs -- three high-school aged sisters and their parents -- sued the Rutherford County Board of Education after being hazed in a sexual manner upon joining the girls' basketball team at Siegel High School.  The girls alleged that they were subjected to an initiation or hazing ritual that the court refers to as "cornholing" -- a practice "whereby a girl on the team would attempt to place her finger up the rectum of another girl by surprise."  Moreover, the plaintiffs claimed that school officials tried to keep the issue quiet and did not meaningfully discipline the player involved because she was the coach's daughter, and that the coach of the team retaliated against the girls for reporting the incident by reducing their playing time and eventually suspending them from the team.  At the time the lawsuit was filed, we noted that the school district's position on the matter was that the cornholing was not sexual in nature. 

Fortunately, a district court disagrees with the school district's absurd suggestion that nonconsensual anal penetration is not sexual in nature.  In denying the school district's motion for summary judgment, the court agreed that a jury could find that the incident satisfied all of the elements for institutional liability for discrimination under Title IX.  First, the court agreed with the plaintiffs that "inserting (or attempting to insert) a finger in another person's rectum or vagina reasonably could be construed as a 'sexual' act that is a severe violation of an individual's body and personal privacy."  The court next determined that the plaintiffs had introduced sufficient evidence for a jury to conclude that school officials had actual notice that the incidents had occurred, since the parents reported the them first to the basketball coach, then to the principal, and then to the Director of Schools. Finally, the court found ample evidence of the school's deliberate indifference, characterizing the school's response as "foot-dragging in violation of school policy, which endured for months and at multiple administrative levels." 

The court makes clear that the school was not on notice of the team's initiation practices prior to the plaintiffs' reports, and thus cannot be liable for damages arising from the cornholing itself.  However, its indifferent response (which included the assistant principle telling the girls to "keep the issue quiet" to avoid giving their high school "a bad name") to the matter once it had been reported subjects the school to potential liability for damages that the girls endured from that point on.  To this end, the court noted that the sisters "faced the prospect of additional harassment or at least the indignity, intimidation, and justifiable discomfort of being forced to play alongside their alleged harasser and under the coach/father who seemed to be protecting her."

Additionally, the court found sufficient evidence in support of the plaintiffs' retaliation claim for that to proceed to trial as well. 

Unless the parties settle first, the case will proceed to trial, and a jury will determine whether the Board of Education is liable and for how much. 

Doe v. Rutherford Cnty., Tenn., Bd. of Educ., 2014 WL 4080163 (M.D. Tenn. Aug. 18, 2014).