Coach Fired After Dismissing Dating Player From the Team

Last week, news broke that Prairie View A&M University fired its women's basketball coach after she enforced a no-dating policy against two players who were in a relationship with each other.  The players complained to the university that the policy was discriminatory and violated Title IX.  As coach Dawn Brown reportedly has appealed the decision within the university system, she and her agent have also decried it publically as unjust "scapegoating."

Some additional facts about the coach's actions make it less clear that her actions were discriminatory and unlawful.  First, the policy does not single out players from dating each other.  They are also banned from dating coaches, trainers, managers, and other people associated with the program. To be fair, if you isolate the aspect of the policy that addresses players relationships with each other you could conclude that it discriminates based on sexual orientation (since only lesbians would have those relationships).  But the policy as a whole is arguably neutral as to sexual orientation,since a straight player dating a male trainer would be just as vulnerable to dismissal as lesbian teammates dating each other.  To be clear, I can think of better ways to create a policy about intra-team relationships. but a conclusion that this policy discriminates against lesbians is surely no slam dunk.

Even if we read the policy as discrimination against lesbians, it's not clear -- at least to me -- that this was the reason she was fired.  For one thing, discriminating against lesbians doesn't necessarily violate the law -- as much as I'd prefer otherwise.  Texas does not prohibit discrimination based on sexual orientation, and Title IX only covers discrimination based on sex. While one lower federal court has so far endorsed a view that sex discrimination under Title IX includes sexual orientation discrimination, this is not a universal interpretation and one that is not binding in other jurisdictions.
So if Prairie View A&M's explanation is that the coach was fired for "violating Title IX" this is (I hate to say) a stretch.

Legal issues aside, the facts suggested by Dawn Brown to the media also raise questions about the university's motive.  She says that the policy was developed in consultation with the Title IX office, and that the Athletic Director was involved in the decision to enforce the policy against the players in question. If this proves true, this surely calls into question any explanation of Brown being fired over the enforcement of the policy.  And as we have learned from other cases involving terminated coaches, when a university's rationale for firing a female coach doesn't ring true, it is sometimes pretext for discrimination.

North Carolina Law Causes Title IX Violation, Lawsuit Says

A lawsuit filed over the weekend presents constitutional and other challenges to North Carolina's new law, HB 2, which prohibits municipalities from including sexual orientation and gender identity in local ordinances banning discrimination and restricting access by transgender individuals to single-sex facilities. Though constitutional arguments are at the heart of the case, the lawsuit also includes a Title IX challenge to the provision of HB 2 that restricts transgender individuals to using the bathroom or locker room that matches the sex designation on their birth certificate, even if this conflicts with their gender identity and expression. Specifically, the lawsuit names the University of North Carolina system as defendant, and includes as a plaintiffs a transgender man who is a student at UNC-Greensboro and another who is an employee at UNC-Chapel Hill.  These plaintiffs argue that the under HB 2, they are prohibited from access to men's restrooms and locker rooms, and UNC violates Title IX as a result.

This argument could provide a federal court with the opportunity to consider the Department of Education's interpretation of Title IX as it pertains to transgender rights in single-sex facilities, and decide how much weight to give the agency's position that excluding a transgender person from gender-consonant usage is a form of sex discrimination that is prohibited under Title IX.  The agency has expressed this position most recently in the settlement of discrimination case against the school district in Palatine, Illinois last fall.  If the court agreed with the agency's interpretation, it could limit HB 2's application to public educational institution due to the conflict with federal law.

It is also possible that the court could agree with the Department of Education's interpretation but still see no conflict between the laws.  While HB 2 is mandatory, Title IX is not.  It only applies to schools that choose to accept federal funding. The case could be resolved in such a way that HB 2 compliance renders North Carolina schools ineligible for federal funding, a ruling that would not affect the legal status of HB 2 directly -- but would certainly generate political pressure for its repeal.

Recent sexual harassment and assault cases

A few cases of boys behaving badly recently have gained public attention and can be added to the data that suggest a correlation between male homosocial groups/behaviors and sexual violence.

Just a few months after a few upperclass boys on a Tennessee high school basketball team sexually assaulted a first year player, causing extensive damage to his colon and bladder, a high school football team in Pennsylvania has drawn public attention for its No Gay Thursdays. This was a weekly event at Conestoga High School and entailed sexual assault and harassment, apparently of a "gay" nature since it was initiated by and directed towards boys. The press calls it a form of hazing. (My thoughts on sexual assault as hazing can be found at the above link about Tennessee. They haven't changed much.) There seems to be something deeper at work here, though. To institute a day when behavior that would--under other circumstances--be deemed gay is permissible suggests more than a desire to initiate first-year students. This is more than hazing. The no gay/no homo phenomena among high school boys is causing serious damage.

This time that damage included sodomizing a first-year player with a broomstick. Three seniors were charged with the assault, which occurred in October. Unfortunately, the district attorney, Thomas P. Hogan, of Chester County, Pennsylvania has bought into No Gay Thursday as well and would not charge them with sexual assault. They were charged, as juveniles, with assault, unlawful restraint, and terroristic threats because, according to Hogan, "from our perspective, it's a physical assault and not a sex crime."

It is a sex crime. In most sexual assaults the goal of the perpetrator(s) is not sexual pleasure but demonstration of power that is enacted through a sexually charged act. These boys very deliberately chose this form of assault on a day they set aside for just this type of assault. It is undeniable that this is a sex crime. They should be charged with a sex crime.

No Gay Thursday is not a new event at Conestoga High School, either. Apparently it has been going on for three years and is a well-known secret. Three years. Hogan mentioned that this (sexual) assault is the result of "ignorance, violence, and a lack of supervision." To that I would add a culture of homophobia, male privilege, and silence--all of which are related/overlapping.

The head coach was initially suspended but resigned last week and the rest of the football staff has been fired. The reason provided for the loss of jobs has centered on the lack of staff supervision in the locker room where most of the hazing occurred. I would argue that the adults were also responsible for informing the culture on the team; a culture which should not include hazing of any kind and should also not perpetuate homophobia.

I am so frustrated hearing coaches say--in all of these cases of sexual assault and exploitation--from high schools in Pennsylvania to universities in Kentucky--that they knew nothing. Coaches are notorious micromanagers. They call players the night before games to make sure they are home. They establish and/or enforce training and diet regimens. They intervene when their athletes are performing poorly academically. Maybe they do not know--in some cases--the specifics; but they know what is happening on their teams.

Farther west, at the University of Missouri, a Title IX complaint has been filed within the university over a sexually offensive and threatening email that was sent by a member of a campus fraternity and directed at the women of a sorority. The fraternity and the student have apologized for the email which included the following: “Get your towels ready because it’s about to go down....[W]e get to stick our arrows straight up their tight little asses. Now don’t go be ass hats, go be as social as possible with our new friends.”

Interestingly, not all the news sources are actually posting what was in the letter. I found it here on the student newspaper's website.

The sender, Edward Lowther put the following apology on Twitter: "What I said was unprofessional on every level. I take full responsibility for my actions, and I will take steps to show that what was said in no way defines my morals or the morals of the men of Alpha Gamma Rho."

I don't think unprofessional is the right word here, because there was no professional context. What he said was aggressive and violent and misogynistic and to at least hint at his morals. The theme of today's post seems to be yes, this was wrong, but not wrong in the way you might think it's wrong. The University as well as the Greek community at MU seems to be taking it seriously, however, as they investigate the incident as sexual harassment and more than just unprofessionalism.  

It has not been a good month for Mizzou. Anti-Semitic graffiti was found on campus a few weeks ago. And of course the school is no stranger to Title IX issues.

Finally, a few states over, parents of a University of Kansas rower are suing the university for false advertising and violating the Kansas Consumer Protection Act after their daughter was sexually assaulted in a residence hall by a football player. They were explicitly promised, they said, that the dorms were safe. This was also listed in the school's promotional materials. While that is going forward, the university also conducted an investigation after the student reported her assault a year after it occurred. A student conduct hearing based on the investigation is forthcoming.

While the lawsuit is a slightly differently and certainly unproven tactic, what these parents are really suggesting is that the realities of sexual violence are being hidden by the university. The lawsuit lists at least seven other incidents of sexual assault in the KU residence halls in a year and half period between 2013 and 2014. The parents say that if they had known about these, they would have reconsidered allowing their daughter to attend KU. They admit, however, that they did not check the university's Clery Act report, which actually shows more than the seven incidents cited in the lawsuit. This remains a case about transparency, and it will be interesting to see how a court interprets it.

More trouble at FSU

A "glitch" in the Florida State University student records system, controlled by a third party software company, has resulted in the release of 1600 emails detailing student conduct cases. Some of those are sexual harassment and assault cases which has raised concerns about whether those who complained are now in danger because an accused person could either find who his accuser was and/or the extent and details of an accusation.

The university has apologized but not taken steps beyond that to reassure those who have filed reports in the past that they are safe, according to some of those who have been affected.

If I was a conspiracy theorist, I would question this "glitch" in light of FSU's less-than-stellar record with Title IX issues. Why? Because if students are worried that their reports might not be secure--which clearly they are not--then they will not come forward to report harassment and assault. Lack of reporting is already a problem nationwide. This glitch has institutionalized it at FSU. Fewer reports means that the university does not have to deal with them and they do not have to report them to the federal government, which would make FSU look safer than it actually is. Even though the University took no responsibility for the Jameis Winston situation as they settled the lawsuit brought by Erica Kinsman, evidence about the number of unreported and uninvestigated sexual assaults occurring at FSU certainly raised concerns among potential students and parents who might send their children there.

But I am not conspiracy theorist. And I do not think that FSU administrators are happy about dealing with this situation. [Apparently the Title IX coordinator has been "up all night" addressing the information leak.]

Additionally, FSU is still under investigation by OCR. This situation is not going to help present a picture of an institution that has its Title IX house in order.

So it seems that this is just a really awful situation--for victims. Many of us have been waiting a long time for something to happen to FSU that will make it wake up and take notice of what is happening on that campus. But no one wants that moment to come at the expense of students.

Accused Student's Case Against Columbia Dismissed

Last April we blogged about the lawsuit filed by Columbia student Paul Nungesser, who was accused of sexual assault by a fellow student, Emma Sulkowicz.  After a university hearing failed to find Nungesser responsible, Sulkowicz protested by carrying her mattress in public. Nungesser sued the university for damages to his reputation arising from Sulkowicz's protest. He argued that the university was deliberately indifferent to Sulkewicz's harassment of him, and thus liable under Title IX.

As I predicted, the suit against the university was readily dismissed.  In a decision released last week, a federal court judge in New York reasoned that Nungesser could not establish the central requirement for a Title IX claim: discrimination based on sex.  As the court characterized Nungesser's argument, he experienced sex-based harassment because the allegations against him were based on sexual misconduct.  The court called this a "logical fallacy" that, taken to its logical end, would lead to the conclusion that those who commit or are accused of committing sexual assault is a protected class under Title IX. It is clear that when Title IX prohibits discrimination based on sex, it means based on the plaintiff's sex, not based on the act of sex. And it is clear even from Nungesser's own pleadings that Sulkewicz's conduct was motivated not by Nungesser's status as male, but by his conduct towards her -- in her account, that he raped her, in his account, that he rejected her, but either way, both agree that it is conduct and not status that motivated her actions.

Moreover, Nungesser failed to allege any harassing conduct by Sulkewicz or anyone else. He does not claim that Sulkewicz had any contact with him after the hearing, or directed comments towards him, or even used his name in her protest. And even if she had called Nungesser a rapist, it would have been an accusation particular to Nungesser, not a gender-based slur. The court noted that a person who is falsely accused in public has a remedy in tort law.  However, Nungesser's claim is a Title IX claim against the university, not a slander claim against Sulkewicz.

The court also found that Nungesser's allegations did not establish that he had been deprived of educational opportunities, another requirement for Title IX liability to attach.

The court granted leave to Nungesser to file an amended complaint to correct the numerous deficiencies, noting that it is typical for courts to grant such permission. I  don't think (and I don't think the court thinks) that the result would be much different for Nungesser the second time around; if he had better facts to include in his complaint he probably would have used them the first time.

Department of Education Settles Athletics Complaint Against Erie Community College

On Tuesday the Department of Education's Office for Civil Rights announced that it was entering into a voluntary resolution agreement with Erie Community College after its investigation revealed Title IX violations in the distribution of athletics opportunities.

OCR determined that the college failed to comply with any of the three tests that measure compliance with the Title IX regulation that requires equity in the number of participation opportunities for each sex.  The college failed the first test, proportionality, because the percentage of athletic opportunities for female students was significantly less than the percentage of female students enrolled at the college. OCR looked at data for three years, the worst of which had a gap of more than 20 percentage points as female students approached 50% of enrollment but received less than 30% of athletic opportunities. It would have taken 122 additional female athletic opportunities for Erie to have complied with the proportionality test that year, and the other years that OCR included in its analysis had disparities that were almost as egregious.

 Nor did the college satisfy either of the two alternatives for compliance.  The second test measures a "history and continuing practice" of expanding opportunities for the underrepresented sex,  The most recent women's team to be added was lacrosse, ten years ago.  Yet in 2009-10 and 2010-11, a few years after adding football, the college eliminated three women's teams, along with their male counterparts, for budgetary reasons.  For this reason, the college does not comply with the second test.  The third test requires the college to demonstrate that the interests abilities of the underrepresented sex are fully satisfied even though there is a statistical disparity in opportunities.  The college could not satisfy this test either.  After dropping three women's sports, the women who participated in them remained interested in playing. Moreover, the college has a 'limited mechanism' for gathering information on women's interest, one that falls short of a formal process that women can use to request additional opportunities.

Having found the college did not comply with any one of the possible compliance prongs, OCR and the college entered into an agreement under which the college agrees to survey female students' interest in additional athletic opportunities, as well as assess unmet interest using other information like regional interest and the popularity of certain sports with Erie's competitor schools.  Based on this information, Erie has agreed to add new opportunities for women until the college comes into compliance with either the first or third compliance test.  OCR will monitor the college's compliance.

This resolution agreement should serve as a reminder to all institutions that despite OCR's increased focus on Title IX's application to sexual assault, it is still enforcing Title IX's requirements for athletics.  It also reminds community colleges that they have the same compliance obligations as four year colleges.

Recent transgender policy cases

[I have been putting this post together for a few weeks now so some of the information is not that new, but still important to consider in the overall landscape of trans rights in education. I will post again soon about additional stories that are more recent.]

I am stealing this line from Ed Mazza's HuffPo piece about genital inspections as a prerequisite for public bathroom use. (see end of post for more on this):
"It may be a New Year, but the same old battle over bathrooms is starting all over again."

So here we go:
South Dakota considered legislation  that would prevent transgender students from using bathrooms and locker rooms in accordance with their gender. This is despite the fact that the government has already made clear its stance on this issue when it recently intervened in the case of young girl in Illinois who was prevented from using the girls' locker room.The state's House of Representatives approved the bill by a wide margin (58-10). The bill's author specifically discussed the so-called incursion of the federal government into schools: "The federal government is now telling our schools that these students must have full, unrestricted access to restrooms, locker rooms and shower rooms," Deutsch said. "This means our schools must allow biologic boys and girls to use the same facilities together regardless of biologic sex." Another proponent of the bill said the "movement of transgenderism" is "endorsing confusion in the lives of little kids for whom we're responsible." The bill moves to the senate and then, if passed, to the governor's desk. Though he has not read it, he said it seems like a good idea. If it gets that far, I see lawsuits.

Another issue in Oregon. It was in Oregon, at George Fox University, where the issue of religious colleges receiving Title IX exemptions first drew media attention (though the requests had begun before that).  This time a high school is debating whether a transgender student can use the boys' bathroom. Like in South Dakota, everyone knows about what happened in Illinois, and opponents do not seem to care. At a school board meeting in December, in which this issue was not on the agenda but had gained enough local attention that parents flocked to the meeting, many people had things to say. Earlier in the fall, a letter had been sent home explaining that a trans student would begin to use the boys' locker room for gym class.

We have not been writing about every case of transgender discrimination in K-12, and this one has--seemingly--only just begun. I give it attention here because it was one of the saddest stories I had read in quite a while. Other cases such as that of Nicole Maines or Gavin Grimm or Jayce (the George Fox student) included testimony from their parents, who all stood/are standing behind their children. The paths to this place were different among the parents, but they all got there. The child at the center of this latest controversy does not have that support. Elliot Yoder's mother has not quite gotten there. This is not to say that she will not, but this fight is happening now. And Yoder walked to the front of that meeting hall by himself after standing in the back of the room listening to people talk about him. They invoked the usual: religious freedom (it's a public school) and fears about sexual assault and spying by students pretending to be something they are not. They added some threats of violence. And then Yoder walked to the front of the meeting hall, after hearing members of his own family and some of his friends support his exclusion from the boys' bathroom, and explained his situation.

This is why we need education and legislation about transgender student rights. Because I imagine there are many more students in Yoder's situation--ones who do not have family or local support--who cannot bring themselves to speak out in front of a crowd of people who are, for all intents and purposes, against them. When clear laws and policies are in place and supported vehemently by the administration, then these students can begin to exercise their rights even if they do not have a lot of people in their corner.

In Texas, school superintendents have voted that student athletes must compete according to the sex listed on their birth certificates. The University Interscholastic League, which governs school sports in Texas, had this policy informally but punted a final decision to the superintendents' association. The overwhelming vote in favor a birth certificate policy puts the state in line with only six others.

On a happier note for transgender athletes, but one that has nothing to do with Title IX, the International Olympic Committee has changed its policy regarding the conditions under which transgender athletes can participate. The major change from the previous policy is that participants do not have to undergo sex reassignment surgery. As many critics of former iterations of the policy have noted, surgery is not a performance enhancer and often recovery from surgery can impede an athlete's training. MTF individuals will have to be able to prove they have sustained a specified testosterone level for at least a year. FTM athletes can compete without restriction. This means, I presume, that there will be an exception made for exogenous testosterone. I find this curious given how concerned the IOC has been about testosterone levels.         

Though the IOC will apply these rules to Olympic participants, the new policy serves only as a recommendation to other international federations. In other words, governing bodies in any sport can implement their own rules.

And to end on a smh moment: a Virginia state delegate in the House of Representatives has proposed genital inspections before people go into public bathrooms, including students going into school bathrooms. It may be wrong to even mention this, but genital inspections do not reveal sex. Ask the International Olympic Committee circa 1960. This is, of course, beside the point. What the senator is trying to do is to prevent transpeople from using the bathrooms in accordance with their lived gender. The measure calls for a $50 fine for anyone using a bathroom not in accordance with anatomical sex. The fine can be issued by any law enforcement officer. So in an age where fears of pedophilia abound, there is a proposal calling for adults to inspect children's genitals. Again, pointing out all the problems with this proposal is an exercise in futility. The point is that it is being proposed to shame and out transpeople.

[Don't forget: Virginia is the state where Gavin Grimm is fighting for his right to use the boys' bathroom at Gloucester High School. He has received the support of the Obama administration in his case. The Federal Court of Appeals heard Grimm's case last week. ]

I would like to think that Mark Cole's proposal is a publicity stunt--an attempt at media attention. But I doubt it. It is a response to a perceived threat that people like Cole find so outrageous and it inspires outrageous responses. My fear is that measures that are perceived as slightly less outrageous, such as the bill in Houston will be seen as legitimate in comparison.

Settlement at North Florida

Title IX news out of Florida late last week: a $1.25 million settlement in favor a dismissed female basketball coach.This case flew completely under the radar. News of the substantial settlement was the first we had heard of coach Mary Tappmeyer's claims of discrimination against the University of North Florida and only because friends-of-the-blog emailed us the press release. Since we have yet to write about it, here is the synopsis of Tappmayer's case:

She was dismissed from her position a year ago (March 2015). Her contract, which had been set to expire at that time, was not renewed. She had been the only women's basketball head coach in the program's history, which began in 1991. She alleged that the university fired her as retaliation for complaining about the inequitable conditions for female student athletes and made claims of sex discrimination as well. The university said she had a losing record and that every complaint about discrimination that Tappmeyer brought forward was investigated. These investigation never found that the coach's claims had any merit. Complaints included: academic exceptions (to university  admissions requirements) for male basketball recruits but not female, a larger operating budget--including travel--on the men's side, and disparities in training, office, and locker room facilities.  She got paid less, but claims the university held her to higher performance standards. Her lawsuit also included allegations that administrators spoke badly of her and her all-female coaching staff to student athletes, athletic department employees and donors and that they impeded her ability to coach and recruit.

So why is this case significant? One, it is a large settlement. This hints at the possibility that the university thought it would not have done better in court, though the statement from the university president stated that they settled to avoid extensive legal fees. And it is a large settlement for a case that got very little national attention and was underway for less than a year. Did the university just throw some money at this to make it go away quickly and quietly? Possibly. More on that theory later.

The second reason why this case deserves some additional analysis is because it shares characteristics with other cases we have seen. Tappmeyer did not report her allegations to the Title IX coordinator because she feared for her job. She went to the president's office instead where she was assured her position was safe. In other words, she knew that complaining within the department was dangerous for her. This is reminiscent of another Florida institution, Florida Gulf Coast University, where a group of female coaches anonymously sought help from outside the university to file a Title IX complaint about the inequitable treatment.  

Sex discrimination rarely stands alone. In allegations about the culture of the department, some of which did not make it into Tappmeyer's lawsuit, she noted that Athletics Director Lee Moon engaged in racist and homophobic behavior. He did not want LGBT or black athletes recruited. Regarding the latter he was alleged to have said that audiences will not come out for an all-black team and encouraged coaches to recruit from the midwest. He wanted teams with female head coaches to have male assistants on staff, presumably to challenge the idea that the team was coached by lesbians. There are no people of color in head coaching positions on the men's side. Tappmeyer's replacement is a black man; he is the only Black person in a head coaching position.

Single axis discrimination is rare. We saw this at Penn State with the case of former women's basketball coach Rene Portland. The lawsuit by a dismissed player (which also ended in a settlement--terms undisclosed) alleged race, gender, sexual orientation discrimination. Penn State also used the internal investigation method and found no evidence of the race or gender discrimination. There is a lack of understanding about intersectional discrimination, which is part of the reason why allegations are not proven. But it exists and it contributes to the hostile climate in athletics departments.

Another similarity: discernible patterns. In addition to the racist comments and inequitable treatment, the UNF athletics department had a practice of firing female coaches and replacing them with male coaches, a la University of Iowa. Sometimes athletics directors who are in charge when the discrimination occurs are themselves fired often as a measure to demonstrate that the university is taking the claims seriously and attempting to change the offensive and discriminatory culture. Not at UNF where Moon remains in his position and supported by the administration.

This is also happening at Iowa where the university is standing solidly behind AD Gary Barta who, in addition to having his contract renewed, has just won an award for being the best athletic director!! Though the lawsuits are not yet settled at Iowa and it remains to be seen what happens to Barta, the announcement that the National Athletic Collegiate Directors Association chose him for the Under Armour Athletic Director of the Year Award was startling, to say the least. I realize that this is an aside. Perhaps it deserves its own post, but it certainly speaks to the culture that female coaches are dealing with not just at their institutions but at the national level. NACDA thinks that someone who is at the center of several lawsuits and a federal investigation about gender equity is the best athletic director in the country. I might worry about what is happening everywhere else, if I did not know that this award is the epitome of an old white boys club, let's look out for one another mentality. For a more thorough analysis of situation see this post. While Barta's recognition certainly seems to contradict some of NACDA's own criteria, Under Armour's involvement may be the thing that engenders more outrage about this situation. After all, UA is working very hard to win female athletes and fitness fans away from Nike. The signing of Giselle Bundchen, Lindsay Vonn,  and Misty Copeland along with others to star in "inspiring" ad campaigns in the past two years reflects these efforts. Being connected to this award recipient is a major faux pas for this company at this time. Consumers should let them know that.

Back to Tappmeyer's case and one final point. We like to think that lawsuits and settlements will change attitudes and cultures. While this is possible and we have seen it happen, it is not always a guarantee. I do not see change happening at UNF. Their reliance on internal investigations (versus outside consultants), their support of Moon, and the outright denial of Tappmeyer's claims alongside the roundabout blaming of her for costing them money suggest that things will move along as they always have. Tappmeyer challenged the culture she encountered, but she could not change it. Maintaining the culture of male and white privilege and power cost UNF $125 million. I think that they are happy to pay that to continue on with business as usual.

Sixth Circuit Affirms Verdict Against Wayne State in Pregnancy Discrimination Case

A federal court of appeal affirmed an $850,000 verdict that Wayne State University was ordered to pay to a social work masters student after it failed to address pregnancy discrimination she was subjected to while participating in a school-sponsored internship at the Salvation Army.  Plaintiff Tina Varlesi's internship supervisor made discriminatory remarks about her pregnancy and gave her a negative performance evaluation that lead to her receiving a failing grade that obstructed her graduation from Wayne State's social work program. Varlesi alleged not only direct discrimination on the basis of her pregnancy, but also retaliation for having complained about her supervisor's conduct to university officials.

In appealing the verdict, Wayne State challenged the award as excessive, as well as some evidentiary rulings by the lower court.  The appellate court said that the lower court had not abused its discretion in these matters.  Wayne State also complained about instructions that were given to the jury, including an argument that it was insufficient to instruct the jury to find for the plaintiff on her retaliation claim if they found that the institution took adverse action because she complained about pregnancy discrimination. Even though a recent Supreme Court decision held that under Title VII, a retaliation plaintiff must prove that retaliation was the employer's sole motive (as opposed to a substantial motive, mixed with other considerations), the court ruled that the word "because" in this instruction complied with that requirement, even if we assumed -- which the court did not -- that Title VII caselaw applies to Title IX on issues of retaliation where the statutes are markedly different.

More broadly, the case confirms Title IX's application to discrimination based on pregnancy, as well as the responsibility of educational institutions to address sex discrimination when it occurs in the context of an internship that is part of an academic program.

Field hockey coach files lawsuit & other Iowa updates

The long awaited lawsuit against the University of Iowa was filed today by former field hockey coach Tracy Griesbaum. As expected, the complaint alleges a department culture of discrimination against women and points places responsibility on current Athletics Director Gary Barta who has been in the position since 2006. (Barta's contract was just extended--see below.) Griesbaum is asking for her job back and that measures be taken to change the culture of the department.

Regarding the latter, the complaint cites the retaliation against female coaches who asked for improvements in conditions for female student-athletes, the firing of female coaches and replacement with male coaches, and different standards for male and female coaches in regards to behavior with athletes and win-loss records. The University released a statement supporting Barta in response to the filing.

Iowa settled a lawsuit brought by a former assistant track and field coach earlier this year. Mike Scott was a volunteer in the program and applied for a paid position with the program multiple times (there were several failed searches). He had a temporary contract, but ultimately lost the position to a woman. In his lawsuit Scott stated that the was told that the department wanted a woman to fill the position. The final search did indeed yield a female coach. It seems like this insistence on a female coach was an attempt to counter the ongoing allegations against female coaches that existed before Griesbaum's lawsuit. Scott received $200,000.

In other somewhat related Iowa news:
The faculty expressed their concern with the ways things are operating within Iowa's administration. The controversial process and selection of the new president, J. Bruce Herrald, a businessman with no experience in academic administration, already had faculty and other Iowa community members concerned. So recent moves by the administration, including the reappointment of Barta draw criticism all around and a public letter from the university's chapter of the AAUP.

Regarding Barta's reappointment, they noted that--according to AAUP philosophies of university governance--faculty are responsible for the welfare of students, including student athletes, Regarding the latter, there is a committee comprised of faculty members who look at and address issues in the athletics department and make recommendations. The Presidential Committee on Athletics also participate in job searches for staff members who work with student athletes.The PCA was not part of the decision to extend Barta's contract. From the letter:

Despite these directives that faculty be involved in important decisions involving student athletes, early this year your office extended the contract of Athletics Director Barta for an additional five years. There was no consultation with the PCA. This happened in a year in which — though there was impressive success on the playing fields — significant concerns were raised regarding gender equity in athletics. The university now faces investigation by the U.S. Department of Education in response to student athletes’ complaints.

Disciplined Student's Title IX Claim Survives Cornell's Motion to Dismiss

Last week, a federal district court in New York denied part of Cornell's motion to dismiss a lawsuit against the university filed by a student whom it had conditionally expelled for sexual assault.  Like the decision against Brown that we blogged about last week, the ruling allows the plaintiff to continue to litigate his "erroneous outcome" claim against the university.

To proceed on a Title IX/erroneous outcome claim, the plaintiff must plead: (1) "facts sufficient to cast some doubt on the accuracy of the result of the disciplinary proceeding"; and (2) "particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding." The plaintiff's complaint against Cornell contained several allegations that satisfy the first requirement, including that investigators ignored exculpatory statements of several eyewitnesses and ultimately produced a biased report. Apparently, Cornell's disciplinary hearing process provides little opportunity for a respondent to challenge the findings in the investigators report, so the claim that the report was deficient calls the proceeding's outcome into question.

As for the required allegations of gender bias, the court found the plaintiff's complaint sufficient based on the "totality of the circumstances" described in the plaintiff's complaint, including that:

Jane Doe was treated more favorably than Plaintiff, that the investigators seemingly slanted the Investigative Report against Plaintiff, a drastic change in position of one investigator in the closing weeks of the investigation, and the possibility that male respondents in sexual assault cases are invariably found guilty at Cornell.  

Cornell pointed out that the "men are invariably found guilty" allegation has been rejected by other courts as a "conclusory" allegation that lacks the requisite specificity to satisfy the pleading standard. But the court rejected that argument, pointing out that reading it together with the other allegations of bias turns it into an allegation that is sufficiently specific:

Further, unlike in Doe v. Columbia where a similar “invariable treatment” allegation was rejected as “wholly conclusory,” see Doe v. Columbia, 101 F. Supp. 3d at 369, Plaintiff alleges that anti-male bias was exhibited by the differential treatment he and Doe received during the administrative process, by the on[e]-sided manner that the investigation was conducted, and by the outcome determinative style that the Investigative Report was drafted.

Notably, then, this court appears to view the "differential treatment" and problems with the report as allegations of gender bias, in contrast to the position taken by others courts that allegations of bias against respondents is not the same as bias against men.

Besides the erroneous outcome claim, the plaintiff's selective enforcement claim was dismissed for lack of allegation that women are treated more favorably when they are in the position of respondent. The court also permitted the plaintiff the opportunity to clarify his breach of contract claim and possibly continue to litigate that as well.

Disciplined Student May Continue to Litigate Title IX Claim Against Brown

A federal district court in Rhode Island denied Brown University's motion to dismiss a Title IX "erroneous outcome" claim filed by a male student who was found responsible for sexual assault of a female classmate and suspended for two and a half years.   (The court also permitted the student to continue to litigate some of his breach of contact claim, but did dismiss his Title IX "deliberate indifference" claim.)

The court concluded that the plaintiff sufficiently alleged facts that could, if proven, satisfy both requirements of an erroneous outcome claim: (1) "facts sufficient to cast some doubt on the accuracy of the result of the disciplinary proceeding"; and (2) "particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding."

As to the first element, the plaintiff alleged that the process by which he we found responsible and sanctioned was plagued by procedural errors, including giving inadequate weight to aspects of the victim's statement that could be interpreted as consent.  At the motion to dismiss stage, the plaintiff need only allege a basis for doubt, not prove that the result of the proceeding was inaccurate, and the court had little trouble concluding the plaintiff's allegation was sufficient.

The second element was more challenging for this court, though it ultimately decided it in the plaintiff's favor as well.  The plaintiff's allegation of gender bias is essentially an argument that Brown has a pattern of finding men responsible for sexual assault when they are so accused.  He states this is connected to gender bias, but he does not allege a specific comparison to female students accused of sexual assault not found guilty. That makes his case more challenging to evaluate than a if it had contained a "comparison" allegation, which usually satisfy the pleading standard in sex discrimination cases that, like this one, are not based on direct evidence of discrimination (something like an express policy of treating women differently from men).  But on the other hand, as the court acknowledged, a comparison allegation is difficult and maybe impossible for male plaintiffs to make in cases like these, since it is rare that women are accused of sexual assault, and perhaps Brown has not had the opportunity to decide such a case in order to make such a comparison possible.  

In Yusef v. Vassar College, a leading case on erroneous outcome claims, the Court of Appeals for the Second Circuit determined that a similar allegation that "men are invariable found guilty"  (without a female comparison) was sufficient to survive a motion to dismiss.  But since that decision, the Supreme Court has required discrimination plaintiffs to allege with a greater level of detail.  As a result, some lower courts have since determined that the allegation deemed sufficient in Yusef's case is no longer sufficient under the Supreme Court's new pleading standard.  These courts have reasoned that this is a conclusory (and thus, insufficient) allegation of gender bias because it only suggestive of a pattern that accused students are found guilty. That accused students tend to be male is not something that the university controls; students of either gender are permitted to file a complaint, and it is possible that if female students were similarly accused, the university's alleged bias against the accused students would affect them as well.

In the Brown case, the court took a different view, reasoning that requiring anything more specific of the plaintiff at this point in the litigation would be tantamount to prematurely imposing the burden of summary judgment standard.  If the argument is that the plaintiff's allegation of gender bias lacks evidentiary support, the court says, that will get sorted out after the plaintiff has had the opportunity to take discovery. It may turn out that, as plaintiff has speculated "on information and belief" that there is bias against men, not just "bias" (alleged) against the accused.

My own view of this aspect of this opinion is a bit conflicted.  On the one hand, I don't agree with the Supreme Court's heightened pleading standard for discrimination plaintiffs.  At the same time, I don't see the Brown court's decision as a faithful application of that standard, since it really permits any accused student to turn his procedural challenge into a Title IX claim but simply invoking "information and belief" that the bias against the accused is motivated by gender. Moreover, while I would prefer that Title IX did permit plaintiffs to litigate disparate impact claims (claims based on a pattern without evidence of intent), the prevailing view after Sandoval, a Title VI, case, is that such claims are claims are foreclosed under Title IX as well. That said, I can't help but notice that the court's analysis seems to permit the packaging of what is essentially a disparate impact claim masquerading as an intentional discrimination claim.  It will be interesting to see what happens to this case as litigation continues, and/or if this decision is appealed to the First Circuit.

Decision: Doe v. Brown University, 2016 WL 715794 (D.R.I. Feb. 22, 2016).

Kent State faces lawsuit over assault cover-up and retaliation

We have seen emerge a pattern of sexual assault cover-ups by intercollegiate football teams recently. Kent State has interrupted that pattern--not in a good way.

The university is facing  lawsuit by a former softball player who alleges that her own coach, Karen Linder, tried to cover up the assault the player reported to her. Why? Because the assailant is the coach's son, also a student-athlete. When the player did indeed report the rape, the (now former) coach retaliated in ways that forced the player to quit the team.

Though this in itself is awful, what exacerbates these feelings--along with my cynicism--is that the coach sought out her player who had not initially reported the assault but who was clearly affected by the incident. Changes in the player's behavior, socially and academically, compelled the coach to ask if she had been sexually assaulted and also ask, according to the lawsuit, if her son was the perpetrator. When she found out that he was, she was apologetic but also asked that the player not share this information with anyone else (her family already knew) and wanted her to talk to her son to try to resolve the issue.

The player tried to move on but had difficulties sharing facilities with the baseball team (of which the son was a member) and going to the coach's (and her son's) home for team events. The player also came to find out that Linder should have reported the assault to the university once she knew about it. The player initiated a complaint with the athletic director that her coach had not done this; the athletic director went directly to Linder who resigned almost immediately but did so railing against the student athlete the whole time and rallying support for herself while decrying the actions of the player and the university. This effectively created a culture on the softball team, maintained and perpetuated by the replacement coach, that was hostile to the student athlete's continued participation.

The lawsuit is against both Karen Linder and the university. The latter is not commenting at this time.

Patterns emerge: Baylor

As I wrote last week, the University of Tennessee and Baylor University find themselves in similar situations: student athletes accused of sexual assault and subsequent indifference to these reports by administrators. More has come out about Tennessee, specifically Peyton Manning's involvement when he was a student athlete. I am moving on to discuss the cases at Baylor though for now and may return to Manning later. 

As I noted in my original post, the two situations share characteristics but are different in key ways. First, the judicial system has already handled the cases of two of the accused. Two former Baylor student-athletes were convicted of sexual assault, but the school did nothing about either of them. They did not investigate when victims came forward. What we more often hear is that schools think that because law enforcement and the legal system did not accrue enough evidence or did not find the accused culpable, schools are off the hook. Though not true, it is not difficult to see how this thinking manifests. But here there were two guilty verdicts. Tevin Elliot, a former football player serving twenty years, is one of those players. He was tried for one incident but is accused of a handful of others. ESPN's Outside the Lines ran a story on it which featured several of the women accusing Elliot of rape.

The story reveals the culture at Baylor that allowed athletes to continue to assault women. Women reported the assaults to local police and to Baylor. One woman, a student athlete as well, reported Elliot's assault to the Chief Judicial Officer at Baylor, Bethany McCraw. The student athlete named Tevin Elliot specifically and McCraw responded that this was the sixth accusation against Elliot. She told the victim that there was nothing Baylor could do until a court acted on it. We all know by now that this is wrong. Did the CJO know her institution was required to investigate?

So scenario one: McCraw did not know Baylor was legally obligated to investigate all reports of sexual assault. This requires us to ask: why not? How do you not know the laws that directly affect your job which is maintaining the welfare of the students at your school? At best, Baylor has ineffective people in very important positions. Even if McCraw did not know the law, she knew this was not the first time. She knew that the football program and the athletics department were aware of Elliot's behavior. As an administrator in the Dean of Students office, one might think she would be interested in the welfare of Baylor students who have been victims of sexual assault. What she offered this sixth victim was help with finals. This leads me to think that scenario two was more likely. McCraw was protecting and/or being pressured to protect the program by protecting Elliot. She discouraged the victim from seeking redress in the form of a restraining order or filing criminal charges. She did not initiate an investigation.

So how administrations deal with reports contributes to the sexually hostile environment at Baylor and the culture of privilege within the athletics department: everyone knows and no one is doing anything. This is a legal failure most certainly and Baylor has, in the wake of the publication of these accusations, been releasing all sorts of statements about how they are examining and changing the policies and procedures. But this was a moral failure as well. While this is often true in other cases we hear and write about, it seems so much more salient at Baylor. I absolutely do not think a Christian university is or should be more morally upstanding than secular institution. But Baylor flies its Christian flag very prominently. They use the religious affiliation of the school to justify discrimination. It is unfortunate, but it is not difficult to see how Baylor's intolerance of certain lifestyles and behaviors (including premarital sex!) has resulted in this culture of misogyny.

Sadly, that culture extended to all corners of the institution, including counseling services. Victim number seven, the one whose criminal charges against Elliot were what got him convicted, sought out mental health services after she reported the crime to the Waco police. They told her they could not help her and warned her about hurting the reputation of the programs by accusing one of its premier players of rape.

The second conviction against another Baylor football player came after Elliot was released from the team and expelled because of the criminal charges against him--still without an investigation by the school into the accusations. In this case the district attorney found a culture of ignorance about sexual assault at Baylor. She reported an inability by administrators to see non-stranger rape as rape. Maybe this is true, though the cover-ups and the narratives suggest something more insidious than ignorance or even indifference.


Baylor has hired a law firm to look at old cases. But there is no promise that those findings will be made public. They hired, as of 2014, have a Title IX coordinator. Right now, all of those actions look like CYAs. I find it almost impossible to believe that in 2011, when these accusations began, that administrators were unaware of the issue of campus sexual assault. This was the year of the Yale complaint and the fallout from the Penn State scandal. There had already been verdicts (sometimes with large jury awards to victims) against K-12 schools who had neglected to address sexual assault against its students. There was a Dear Colleague letter that year as well. Everyone, including Baylor, was on notice.

Final note: there is no OCR investigation into Baylor at this time.

Sexual Harassment Roundup: K-12 Cases

Here are summaries of some recent judicial decisions involving Title IX claims against school districts for failing to adequately respond to reports of sexual harassment and abuse.

A federal court in Connecticut refused to grant summary judgment to a school district in a case stemming from a ninth-grader's repeated sexual abuse of the sixth-grade plaintiff.  The abuse itself occurred outside of school, but the plaintiff alleges that the school district was deliberately indifferent to the fact that the abuse and her reporting of it subjected her to continued harm while at school. For one matter, the school did not take steps to expel the 9th grader, which created the opportunity for the plaintiff to encounter him in space that the middle school and high school shared. Additionally, the school did not respond to repeated requests from the plaintiff's parents to intervene in harassment that the plaintiff was enduring at the hands of some sixth-grade peers, including the perpetrator's sister. The court agreed that based on these claims it is possible for a jury to conclude that the school district was deliberately indifferent and liable under Title IX. Its ruling allows the case to continue on to trial.  Doe v. New Fairfield Bd. of Educ. 2016 WL 310720 (D. Conn. Jan. 26, 2016)

A school district in Indiana must continue to litigate a former student's claims that school officials' tolerance of hazing on the boys' swimming team violated Title IX as well as his constitutional rights. In denying the school district's motion for summary judgment, the court determined that a jury could find based on the evidence in play that the school tolerated conduct among boys that it would not have tolerated among girls, a finding that would subject the school to liability under Title IX. Because the plaintiff alleged that the school officials' indifference to hazing was "because of sex" it was not fatal to his claim that his additional allegations that the hazing itself was "because of sex" was not supported by evidence. J.H. v. School Town of Munster, 2016 WL 427351 (N.D. Ind. Feb. 03, 2016).

An Oklahoma school district prevailed on summary judgment in a case filed by a female student who was targeted for an inappropriate relationship by her history teacher.  The student argued that the school should have been on notice of the teacher's conduct as a result of an incident in which a custodian discovered the teacher and student together in a locked classroom with the lights off.  While in fact that teacher had been kissing and touching the student behind the locked door, the teacher provided a plausible explanation for this situation when he was asked about it by school officials (the locked door he said was the result of on active shooter drill, the lights off because he was using a projector). In light of the teacher's response, the court determined that the custodian's discovery of the locked/dark classroom did not provide the school district of actual notice of the teacher's inappropriate conduct and that it was reasonable to take no further action against the teacher other than warn him not to be alone with students in the classroom. Later, when school officials received additional evidence of the teacher's conduct, they acted immediately to suspend the teacher and begin a disciplinary process that ultimately led to his resignation, thus fulfilling their obligation under Title IX to respond reasonably to actual notice of a threat of sexual harassment,.   Roof v. New Castle Public School District No. 1, 2016 WL 502076 (Feb. 8, 2016).

A federal magistrate in Texas granted summary judgment to a school district after determining that the plaintiff did not have sufficient evidence that school district's response to peer harassment was tantamount to deliberate indifference.  The plaintiff, an 11-year-old boy, was harassed by fellow students because he had "breasts like a girl" and other physical characteristics that allegedly made him appear less masculine and gay to his classmates.  In light of uncontested evidence that the school district took some disciplinary action in response to reports of bullying, the magistrate determined that school officials could not have been indifferent, even though the response was (at least arguably) too weak to curtail the bullying in question. Nor did it matter that the school district (again, arguably) failed to comply fully with its own anti-bullying policy. Concluding that the school district "should have done more" does not determine whether the school was deliberately indifferent. Drawing this distinction, the magistrate determined that the school district could not be liable under Title IX.  K.S. v. Northwest Indep. Sch. Dist., 2015 WL 9450853 (E.D. Tex. Dec. 1, 2015).

Patterns emerge: Tennessee

I wonder if Florida State officials are sending thank you notes to their counterparts at Baylor and Tennessee for helping take the heat off their recent settlement announcement in which they did not admit culpability for improper handling of a sexual assault accusation against former football player Jameis Winston as they paid out nearly $1 million to settle the lawsuit brought by Winston's victim.

Because what is happening at those two schools is--and will be--taking up a lot of media space. Both Baylor and Tennesse are having problems dealing with their student-athletes and with accusations of sexual assault against their athletes. This post is just about Tennessee. I will post again shortly about Baylor. Though similar, they each have their own unique aspects that warrant separate consideration.

Word came out yesterday about a lawsuit filed by 6 women at Tennessee alleging improper handling of their sexual assault reports. Five of those allegations are against student athletes (football and basketball). The non-student athlete assault happened at a football team party. The lawsuit details parties such as that one and the culture of illegal behavior that is, at best, tacitly supported by the school. It cites high-ranking university officials (including the chancellor) as responsible and aware of the assaults. The lawsuit also mentions additional sexual assaults of other women not associated with the lawsuit.

In additional to the allegations of deliberate indifference, the lawsuit also states that the hearing process for sexual assaults is biased against victims. One accusation is that the accused can have lawyers. On its face, this does not seem like a problem--other universities allow this--unless victims are not allowed lawyers either expressly or through omission (i.e., they are not made aware of this option). The more particular issue is that one lawyer in town is being hired to represent all these athletes at their hearings. Not automatically a problem or violation, but there are potential issues with this. Community support in the form of the judicial and law enforcement sectors being "kind" to student athletes is not new. We saw it at Florida State and it was rampant at Washington in the Neuheisal era where law enforcement and the judicial system almost colluded in protecting football players charged with crimes (not all sexual assault). So one might ask: Who is paying this lawyer? Is he doing it for free? What is his connection to the program? To the university? These are issues that someone should investigate.

Apparently an administrative law judge adjudicates these hearings. The lawsuit contends bias here because that judge is appointed by the chancellor and, again, the accusation is that the chancellor is part of the problem and arguably has a vested interest in protecting student-athletes and/or the reputation of his university. These will be interesting aspects with which the court will have to contend. How much leeway does a school have in establishing policies and procedures? How guide-y are the federal guidelines? Is Tennessee following the letter of the law, but not the intent in the way it addresses accusations of sexual assault?

What will be less contentious, assuming the allegations are proven to be true, is the deliberate indifference and the sheltering of student athletes. Many athletes are publicly reprimanded for "bad behavior" by being suspended or even kicked off a team. What happens afterward is not as public. Often athletes stick around campus--still students in good standing--and then transfer to other schools or even graduate. According to the lawsuit, Tennessee violated Title IX by:
"delay[ing] the investigation process until the athlete perpetrators transferred to another school or graduated without  sanction or discipline." One named assailant, former football player A.J. Johnson was suspended during his last season with the team but was allowed to take part in graduation.

The transferring to other schools is not new. The delay of investigation while everyone looks the other way is not new. We have written about it. There have been other lawsuits and complaints that report this. The SEC, of which Tennessee is a member!--now has a rule that its member schools cannot accept transfer student athletes with records of sexual and domestic assault.

What we do not know, but what many of us suspect, is that this "procedure" for dealing with offending athletes is more widespread than the few incidents indicate. The Tennessee lawsuit may not reveal a national pattern, but it certainly adds to the mounting evidence that what happened there is business as usual in big-time college sports. 

Also, these allegations of bias and of collusion in hiding and protecting offending athletes at Tennessee is not new. There have been complaints and investigations against other officials as well as the football coach who has a great deal of control over the disciplinary  proceedings against athletes. These alleggeations have been around for years. 

A side bar, of sorts, to this story is one about a Tennessee football player who was physically attacked--allegedly more than once--for helping one of the victims (taking her to the hospital and encouraging her to report her attack). I have seen some social media that critiques news outlets for running this story saying that the real story is the lawsuit and all that is contained within it (the events, the response, etc.) and that running the story about the football player takes attention away from what these 6 women endured.  

If that is the only story that a media outlet ran about what is happening at Tennessee, I would agree with the critiques. But this story is telling in itself. It speaks to the culture of secrecy and protection within athletic departments. A culture specifically cited in the lawsuit. A culture that both lead to the assaults and certainly affected how they were handled by university officials. It is a message to those within the program, arguably within the Tennessee athletics community as a whole, that if you do not conform to the cultural norms--the ones, in this case, that privilege athletes to such a degree that they are allowed to engage openly in illegal and violent behavior--that you will be punished. This is code red, A Few Good Men, culture. Officials knew what was happening, the victim told them this player was being assaulted, and they did nothing.

This is something new. I have not seen reported anything about repercussions to those--who are not victims (because they are frequently shunned, bullied, further assaulted and harassed)--within the culture who in some way support a victim. Maybe because it does not happen. Those who disagree with what was done or what is happening will just remain silent rather than threaten their position within a culture that provides them protection and privilege. This may not be the main story, but it is a compelling one and deserves attention as well.

Obama Requests 29% Increase in Funding for OCR

On Tuesday the Obama administration proposed a federal budget to Congress that would increase funding to the Department of Education's Office for Civil Rights to $138 million, a 29% increase over its current level of support.  As mentioned in this Huffington Post article about the proposed budget, OCR is presently investigating alleged Title IX violations at 162 colleges and universities, as well as 73 school districts. The backlog causes most investigations to take at least a year, with some taking far longer.  The requested budget increase aims to address the problem by earmarking the additional funds for adding more personnel at the agency's regional offices, which handle enforcement. 

As the Huffington Post article points out, request and reality often differ where federal budgets are concerned.  Last year the President proposed increasing OCR's budget from $100 million to $130 million, but Congress only agreed to $107 million. If recent trends predict the future, it seems likely that that President would get some but not all of the requested increase.  Hopefully Congress will add enough new funding to make a meaningful difference the agency's ability to conduct investigations in a reasonable amount of time, and ensure that the agency can vigorously enforce Title IX without losing focus on its other civil rights responsibilities, including the enforcement of statutes that prohibit discrimination based on race and disability. 

Settlement in FSU case

Breaking news: FSU will pay Erica Kinsman just under $1million to settle the lawsuit she brought against her former institution in the wake of their mishandling of her rape allegations against former quarterback Jameis Winston.

FSU had dug its heels in deep in the case, making repeated remarks to the media about how they had done everything according to the book, despite glaring evidence to the contrary. So I am somewhat surprised by the settlement--and somewhat not so surprised. A trial would have drawn more attention and potentially turned public opinion against the university which still remains very popular in the eyes of fans and alumni. I believe the evidence that would have been brought out at trial would have made them look horrible. Their initial lack of response to Kinsman and the more-than-a-year-late conduct board hearing which was handled so poorly could not have been overlooked.

In the settlement FSU admits no wrongdoing, though most of us know that $950,000 is a pretty hefty sum for an innocent entity. But this way those who vilified Kinsman, (the harassment she experienced was one of the reasons she withdrew from her dream school) can continue to say that nothing was ever proven and that the university simply had to pay her off or incur even more costs to defend themselves. This narrative is somewhat frustrating. Though there are further legal actions pending against Winston.

FSU is still maintaining that they would have won in a trial. This statement from President John Thrasher is particularly infuriating:
Although we regret we will never be able to tell our full story in court, it is apparent that a trial many months from now would have left FSU fighting over the past rather than looking toward its very bright future. We have decided to instead move forward even though we have full faith that the ultimate outcome of a trial would have been consistent with the previous law enforcement investigations and retired Supreme Court Justice Major Harding’s findings in the student conduct hearing.

I am not going to go back to rehash the student conduct hearing. I will just remind readers that it was somewhat of a comedy of errors--but not funny in the least. Whatever Harding's credentials as a judge, his expertise did not extend to overseeing and judging a student conduct hearing.

FSU was correct about the costs of litigation. Only $250,000 of the settlement is going to Kinsman. The rest covers her legal costs.
CORRECTION: New sources have emerged since this story broke, and I posted that this was breakdown of the settlement. The statement was from FSU. But the division of the settlement is to be determined between Kinsman and her legal team, who say that the $700,000 is what FSU determined legal costs to be but is not reality.


What else has this cost FSU? As part of the settlement,  FSU has committed to five years of of sexual assault awareness, prevention and training programs. Curious. Not sure what will happen after five years. These things are basically required anyway. There will be annual reports discussing these programs in an effort in "increase transparency." The latter has been an issue. One astounding fact that would have been brought up at trial is the statement from the former director of the Victim Advocate Office claiming that of the 113 reports of sexual battery to their office in 2014, the university reported only 9 to the federal government (Clery Act violation). This may be an issue, though, when OCR does its investigation. The university still has to contend with that.

The latest from Iowa

The Iowa Civil Rights Commission has been investigating the 2014 firing of field hockey coach Tracy Griesbaum. The results, issued in early December in a brief report by the commission, clear the path for Griesbaum to file discrimination lawsuit against the university. It is expected she will do so in the next few weeks. The report states that there was a "reasonable possibility" that the coach's dismissal was a result of gender discrimination and that the university has not provided evidence that her dismissal was the result of a combative nature (one of the university's claims for her termination).

In related news, the complaint filed by four current and former field hockey players in the wake of Griesbaum's firing will bring OCR to Iowa City some time this spring. Though the complaint deals specifically with the treatment of female coaches, OCR will assess the entire program and could issue a report on, in addition to coaching, things such as access to facilities and medical care, availability of practice times and equipment, quality of travel and competition. In other words, this visit is not just about whether there is discrimination against female coaches, it will be about whether there is equal treatment in the department. What we have seen is that when there is disorder in one part of the house, there are usually messes elsewhere. The university may be working hard on its defense in the presumed Griesbaum lawsuit, but the athletics department should also be doing an assessment of the overall state of the department and making proactive (in terms of an OCR visit; obviously things should already be in order) moves to demonstrate to OCR that they are committed to achieving equality in the department.

OCR Promises More Transparency for Religious Exemptions

The Department of Education's Office for Civil Rights has promised a U.S. Senator that it will improve the public's access to information about institutions that have applied for and received exemptions from Title IX on religious grounds.  The statute permits religious institutions to seek exemptions from compliance on matters that conflict with religious doctrine. After receiving a letter from Senator Ron Wyden (D-Or) and others expressing concern about the exemption's affect on LGBT students' rights, OCR replied, in relevant part:

I think OCR should go even farther than just making the list of exemptions available on its own website; I think it should require exempt institutions to publish the fact of their exemption on their own publications and marketing materials.  This would be consistent with the agency's current approach to Title IX disclosure more generally, as it  requires every school subject to Title IX to include a nondiscrimination notice "on the recipient’s website, at various locations on campus, and in electronic and printed publications for general distribution" as well as include it "in any bulletins, announcements, publications, catalogs, application forms, or recruitment materials."  As a condition for granting the exemption, OCR should require religious institutions to including information about the exemption as part of these notices.

For additional background, analysis and critique of Title IX's religious exemption, see Amanda Bryk, Title IX Giveth and Title IX Taketh Away: How the Religious Exemption Eviscerates Protection Afforded Transgender Students Under Title IX, 37 Cardozo L. Rev. 751 (2015).

OCR Criticized for Process Used to Create Dear Colleague Letter

In a "sharply worded missive," two Republican Senators criticized the Department of Education last week for process it used to develop the guidance contained in the 2011 Dear Colleague Letter that clarifies universities' obligations under Title IX to address campus sexual assault.

As I told the reporter from Inside Higher Ed, I believe that it was legal for the Department to consider it guidance exempt from the notice-and-comment procedures that agencies have to follow when they promulgate binding regulations.  The Administrative Procedure Act, which sets those requirements, exempts interpretations of existing regulations from that process, and the Dear Colleague Letter qualifies as an interpretation of Title IX's regulatory requirement that institutions provide a "prompt and equitable" response to reports of sexual violence.

 “The letter takes those words -- ‘prompt and equitable response’ -- and gives them a specific meaning,” [I] said. “The department already had the enforcement authority to bring enforcement action against an institution for violating Title IX, because that regulation did go through notice and comment in the 1970s. The department could have chosen to exercise that option for the guidance, as well, but that takes a lot of time. All the letter does is say to colleges, ‘You’re not getting the message, so we’re going to tell you in advance what the compliance standard is, so if you want to avoid an enforcement action, this is how you do it.’ It's important to get that message out there as quickly as possible.” 

But the advantage of expediency comes with a tradeoff, which is that guidance documents issued without notice-and-comment procedures can more easily be revoked by a subsequent administration. For example, a controversial 2005 guidance document that permitted institutions to use interest surveys to with Title IX's requirement to provide equitable opportunities in athletics was revoked in 2010 by the current administration.  Because the 2005 guidance did not use notice-and-comment procedures, neither did the 2010 revocation.  As I told IHE, "That's the trade-off. Easy come, easy go.”

Assault at Tennessee High School Basketball Tourney

The season is over for a Tennessee high school basketball team that has been at the center of significant media attention after three upperclassmen sent a younger student to the hospital with injuries to his colon and bladder that required surgery.

The three perpetrators have been arrested and charged (as juveniles) with aggravated rape  and assault and kicked off the Ooltewah High School basketball team. The team played four games since returning from the tournament. Then, on Wednesday, the district superintendent, Rick Smith, announced that the remainder of the season would be cancelled. This is what he said:
"This decision is not a reflection upon the coaching staff. Indeed, law enforcement officials have to date found no evidence any adult acted improperly. Likewise, this decision is not meant to punish the boys on the team who are innocent of any wrongdoing and simply want to play high school sports."

So why cancel the season if everything is just fine?  Smith said something about the integrity of the investigation. But it looks like a PR move as more details are uncovered.

Many of us have read the horrid details of the injuries, caused by a pool cue, that happened in December during a high school basketball tournament. The Ooltewah team was staying in cabins near the tournament site. This is where the assault occurred. Though only one person ended up in the hospital, other first-year players were also assaulted in what was initially called a hazing incident.

First, any news source that continues to refer to this incident as hazing is doing harm and minimizing the severity not just of this incident but of the culture that continues to perpetuate the idea that male and team bonding via hazing is harmless ritual. This was assault. It was always assault. It did not start out as hazing and turn into rape. It was a planned sexual assault.

An attorney for the school district has said that part of the school's investigation will include a look at the anti-hazing policy and whether it is being effectively communicated to students. The problem is that hazing is so much more complicated than most of those involved know.

The reason the term hazing exists is because it applies to a specific situation--one in which people act against others with the intention of providing an initiation or bonding ritual. Hazing includes actions that are meant to create an in-group and out-group. One suffers through the ritual/tradition/assault to prove loyalty and thus gain entry. To prove the group itself is special, the "tradition" continues, though the entry requirements often have little to do with the group's goals or function.

The use of the term hazing does not mean that the actions are somehow more acceptable because they do not occur between strangers or seemingly have no higher purpose. Being force fed alcohol is not ok in any situation. Being sexually assaulted is never ok. The use of the term hazing in the popular discourse has had the effect of desensitizing us to the violence that all hazing entails. An incident like this makes people take notice, but many are quick to talk about how unique this incident is because of its extreme violence, thus making room for some acceptable versions of hazing/assault.

One, this is not so unique. A quick look at the literature on hazing will reveal many stories of so-called extreme hazing. Two, we have no idea how often rape, assault and other forms of violence that do not result in hospital visits occur. The culture of silence is strong. Once an individual has endured the assault and gained entry to the group, he is less likely to threaten that position by telling others what happened.

Hazing has been happening on the Ooltewah boys' basketball team for a while I would guess. The perpetrators did not just invent this. They were probably hazed themselves--which is not an excuse. This bring me back to anti-hazing education. Yes, it is important. It is important to send the message that team bonding and acceptance should not be achieved through physical assault. I wonder though if this will be the message. Because this situation will require more than a few (or more likely one based on what I know about training sessions implemented in the wake of a scandal) sessions in which administrators say "don't haze." Because most people--even teenage boys--know that sexually assaulting someone with a pool stick is not acceptable behavior. This was not bonding. This was about power, which is true of all hazing.

Saying "do not haze" will not stop hazing. Whatever culture exists that allowed this to continue needs to be addressed. Something is happening at that school. I am not sure what an investigation will uncover, but I am sure lawsuits and maybe even a Title IX complaint are forthcoming. I have some questions.

When the hazing tradition of being "beaten in" to the team was reported to the coach, an allegation made by the parent of another victim, was it really enough for him to say "stop bullying"? Who is training coaches and administrators about these issues? How were these boys not supervised in the basement of a cabin on a road trip--especially after the coaching staff knew "bullying" was occurring?

Also, I am wondering who thought it was acceptable to send the boy back after his initial hospital visit (he returned later in the night to receive surgery when his condition worsened), to the place where he had been raped. And why did no one there do anything about it at that moment? The discussion has been about the physical injuries this boy suffered, but the psychological damage caused by hazing is just as significant. Sending him back to the cabin where he had been assaulted is unthinkable.

Tennessee Athletics Staff Settle Retaliation Suit for $750,000 + Fees

Three former members of the University of Tennessee Athletics Department staff have settled a lawsuit, ongoing since 2012, that challenged pay disparities between their positions that worked with female athletes and those doing the equivalent job for male athletes.  They had also alleged that athletic department officials retaliated against them when they complained about pay discrimination.

Under the terms of the settlement, the university will pay each of the three plaintiffs -- former associate director of sports medicine, Jenny Moshak, and two former strength coaches Heather Mason and Collin Schlosser -- a combined total of $750,000, and will also cover the plaintiffs' attorneys fees, which are estimated to add to another quarter-million to price tag of the settlement.

This case is a good reminder of the various ways that sex discrimination can manifest in athletics. On the one hand, paying the trainers and coaches who work with female athletes less than those who work with male athletes reflects a devaluation of women's athletics, which affects not just women, but men like Schlosser who work in women's athletics as well. On the other hand, the plaintiffs' had alleged that the existence of a "testosterone wall" that kept women from being considered for the more lucrative staff positions working with male athletes.  So women were additionally disadvantaged in that way as well.

Notably, this lawsuit was not the only one that alleged sex discrimination in Tennessee athletics back in 2012.  The other case, filed by the former Lady Vols media director who alleged she was squeezed out because of her sex when the University merged its men's and women's athletics department, had already settled in 2014 for $320,000.

Everyone's talking about waivers

Since Erin wrote about Christian-identified colleges asking for Title IX exemptions, the topic has been getting a great deal of attention in the media. As a reminder, these waivers do not permit complete exemption from Title IX and every school can craft its request however it pleases, but waivers can (and have) be(en) used to: expel transgender students and unmarried women who get pregnant, deny transgender persons access to single gender spaces such as bathrooms, locker rooms, and housing, deny married housing to same-sex couples (students, faculty, and staff)

• The issue of federally sanctioned discrimination against LGBT students in America's institutions of higher learning has US lawmakers taking notice. A group of senators, including Bernie Sanders, Al Franken, Tammy Baldwin, and Barbara Boxer, have asked Secretary of Education for "greater transparency" in the waiver process. They want, at the very least, a public list of the schools that have asked for and received waivers stressing the need for an informed choice by students and parents.
• The Human Rights Campaign (HRC) has seconded that motion (or maybe firsted?--not sure who made their announcement first). The group issued a report asking for a list and that the Department of Education keep (publicly available) statistics about the number of requests and waivers granted. HRC's report included some of these statistics, which document the rapid rise in requests from one in 2012 to over 40 in 2015. About 2 dozen requests are still being considered by the Department of Education, but it has yet to deny a school a waiver.
• As Erin noted in her original post, there is a list of these schools. But it is being kept and published by an LGBT publication, The Column, out of Minnesota. The Column got the list via FOIA requests and what they have done with the information is very impressive because it is more than just a list of the schools. It has an interactive map, similar to the one HuffPo has been keeping on schools under investigation for Title IX violations regarding the handling of sexual assault. It may be the best source for now if one is interested in knowing which schools have made and/or been granted waivers and what they are requesting.
• Response by conservative Christian groups to the request for lists has used phrases like blacklisting, public shaming, religious freedom, and stifling diversity. Some groups, like the Southern Baptist Convention and the Christian Legal Society, have been providing training and advice to schools seeking waivers, which is why many of the ones filed in the past year are nearly identical. All of these are available at the link to The Column's piece.

Baylor settles with sexual assault victim

Baylor University has made an undisclosed settlement with a student who was raped by a former football player. Sadly, this is no longer an unusual situation. We have not been writing about all the lawsuits and complaints filed, in part because we do not hear about all of them. This Baylor case just came to my attention with the news of the settlement. I write about it for two main reasons. One, it involves a transfer athlete who was dismissed from his previous institution most likely for reasons related to violence against women. Second, the settlement comes after a successful criminal conviction of the athlete for sexual assault.

The latter: football player (he never played a game, actually, but was on the roster), Sam Ukwuachu, was found guilty of sexual assault in August. Sexual assault convictions are difficult to get. None of the articles I have seen detail what evidence was put forth that was so compelling, but apparently it was not good enough for Baylor which, after its own investigation, chose not to discipline Ukwuachu. The school's investigation consisted of 4 interviews: victim, accused, and a friend of each. Though the victim went to the hospital after the attack, which occurred in October of 2013, had a rape kit done and spoke to the police, none of this evidence was considered by the investigative team. The investigation was so controversial that the defense was not allowed to reference it during trial. 

Though criminal charges were still pending, a member of the Baylor coaching staff said they expected Ukwuachu to play in 2015 and patted themselves on the back for handling everything so well.

Head coach Art Briles said the same month his player was convicted: “We’ve sat back and waited for it all to take shape and see what the outcome is. So, I like the way we’ve handled it as a university, an athletic department and a football program.”

Baylor will still undergo an OCR investigation for its handling of sexual assault complaints. 
In short, the school's investigation, which requires a lower burden of proof, found Ukwuachu not responsible. A criminal court, where so may rape cases do not even make it because prosecutors do not feel they can convince a jury beyond a reasonable doubt given the evidence and testimony, found him guilty. 

Even in reporting the conviction and now the settlement, the media focus remains on what Baylor knew about Ukwuachu's past. Originally recruited and attending Boise State, Ukwuachu was dismissed from that team and left Boise in May 2013--to attend Baylor. Briles says the former BSU coach Chris Petersen did not mention the allegations of domestic violence against the player which involved a romantic partner. Petersen claims that he did indeed discuss these things. Boise State issued an official statement saying that Ukwuachu's dismissal had nothing to do with violence against any women. Adding to the allegations, innuendos, and incomplete stories is the fact that former Florida head coach would "not touch" the player because of the rumors about his behavior. Interestingly, the SEC, which Florida is a part, will not admit student-athlete transfers with records of violence--though this rule was not in place at the time.

The question that remains for me is who will investigate these he-said, he-saids and who in the administration, including the athletic department, knew what--and when. Will OCR look into it when they go to campus for their investigation? Does the NCAA care anything at all about this pattern of passing players with records from one institution to another? The policy around transfer athletes should be part of a school's sexual assault policies and procedures. Keeping athletics as tuns on their own bottoms has proven to be harmful, and it is time to stop viewing them, their leaders, and their student-athletes as distant and/or distinct entities.