Supreme Court Grants Cert in Title IX Transgender Bathroom Case

Yesterday the Supreme Court partially granted the Gloucester school district's petition for certiorari to review the appellate court's decision that a transgender student had the right to use the bathroom according to his gender identity:

As you can see from the order, the Supreme Court's order limited its review to two questions raised by the school district's petition.  There were three questions on which the school district sought review in its cert petition:

By refusing to grant certiorari on question 1, the Supreme Court has confirmed that it will not use this case to overrule the Auer doctrine. Under Auer, courts must defer to an agency's interpretation of its own ambiguous regulations. In the decision below, the Fourth Circuit relied on heavily on Auer in determining that the transgender student plaintiff could access the boys' bathrooms at his high school. This is because the Department of Education, which enforces Title IX, has a regulation about bathrooms (it permits schools to separate bathrooms and certain other facilities by sex) but that regulation is silent about its application to transgender students. The Department has since interpreted that regulation to resolve that ambiguity to require schools to permit transgender students to access bathrooms consistent with their gender identities. As an interpretation of an ambiguous regulation, the Fourth Circuit determined, the court deferred to the agency's position on the matter.  It did not pass judgment on the agency's position; it simply recognized that the agency is the proper body to make that call.

In denying cert on the question of whether Auer deference is proper, the Court has made it considerably harder for the school district to prevail. It will only examine whether the Fourth Circuit properly applied that doctrine in this case.  Notably, most of the school district's arguments that it did not target the fact that the agency's interpretation was contained in a limited-purpose opinion letter and was arguably not meant to have broad application. Since that time. the agency has promulgated a broadly applicable guidance document on this issue. Even if it was improper for the Fourth Circuit to have deferred to that opinion letter, it is not necessarily improper for other courts in future cases to defer to the guidance document.

Additionally, it is worth noting that the Supreme Court presently has only 8 justices. The vacancy left by the death of Justice Scalia will not be filled before this case is argued sometime this winter or spring. I can think of three Justices who are likely to be sympathetic to the school district's arguments.  But they would have to get two more to the join them for the school district to win, because a 4-4 tie leaves the Fourth Circuit's decision in tact.

Finally, for some historical context, the Supreme Court has decided Title IX cases 8 times in its history. In all but one of those cases, it ruled in favor of the party seeking to challenge discrimination and advance civil rights.

Title IX Used to Challenge Anti-Gay Utah Law

This week LGBT rights activists in Utah filed a lawsuit challenging state law that prohibits schools from including instruction on the advocacy of homosexuality in the curriculum, which the state Board of Education has interpreted to apply broadly to "any course or class." The lawsuit also targets provisions of state law that withhold support and recognition from student clubs whose activities involve or express "human sexuality." The lawsuit's primary arguments are that by singling out homosexuality for exclusion from the curriculum, and LGBT groups for the withholding of school support, Utah's laws violate students' constitutional rights under the First and Fourteenth Amendments, including equal protection, free speech and association, and the right to receive information. In addition to the constitutional claims, the lawsuit argues that the anti-gay state laws force local school districts, some of which are defendants, to violate Title IX by foreclosing LGBT students' rights to equal educational opportunities. The lawsuit charges that the state law violates Title IX because it forces school districts to "foster a hostile and censoring environment of silence and non-acceptance for LGBT students" and by "subjecting them to stigma and harassment based on sex, including actual or perceived gender non-conformity, being in a same-sex relationship, or being transgender." The lawsuit also claims that one of the school district defendants violated Title IX by ignoring severe harassment that students directed at one of the plaintiffs in the case, whom they perceived to be gay, a claim that helps illustrate the potential for discrimination in the curriculum to negatively affect school climate in ways that cause tangible injuries to LGBT students.  

Illinois Parents Fail to Block Transgender Student's Use of Locker Room; Judge in Texas Reaffirms Nationwide Injunction Against OCR's Transgender Guidance

Federal courts all over the country are hearing challenges to the Department of Education's position that Title IX prohibits educational institutions from discriminating against transgender students and excluding them from single-sex facilities and programs that they seek to access in a manner consistent with their gender identity.  This post will cover two key developments in separate cases that occurred this week. 

In one case, a federal magistrate judge in Illinois rejected efforts of parents to prohibit Township High School District from accommodating a transgender student's right to use the girls' locker room, which is consistent with her female gender identity. The school district developed an inclusive policy pursuant to an agreement with the Department of Education that resolved the agency's finding that excluding the transgender student violated her rights under Title IX. The group of parents sought an injunction against the policy by challenging the Department of Education's guidance document that contains its interpretation of Title IX's application to transgender rights. It also alleged that the school's inclusive locker room policy violated their children's constitutional right to privacy, but failed to convince the magistrate to offer relief on either ground. As a result, the school district's policy that permits the transgender student to use the girls' locker room remains in effect.  

As to the Title IX issues in particular, the magistrate -- whose role is to make a recommendation to the federal district court judge -- determined that the parents did not have the requisite "likelihood of success on the merits" necessary for such an injunction to issue.  The magistrate noted that many courts are adopting broader understanding of sex discrimination as defined by Title IX and other civil rights laws to encompass discrimination targeting transgender individuals. Even the Seventh Circuit, which has jurisdiction over the federal courts in Illinois, may be poised to overrule its very influential 1984 decision that foreclosed Title VII's protection to transgender plaintiffs. (The appellate court very recently vacated a panel decision that declined to overrule that earlier case, signaling the possibility that the full court will do so when it rehears the case en banc.) Thus, the magistrate concluded, it is not apparent that the plaintiffs are likely to prevail on their argument that the Department of Education contravened Title IX when it promulgated the transgender guidance or when it entered into the resolution agreement with the school district that incorporates the agency's interpretation in the guidance. Similarly, it is unlikely to prevail on its argument that the agency should have used notice and comment procedures to promulgate the transgender guidance, since it appears to be an interpretation of existing requirements under Title IX and its regulations, rather than a new obligation.

The magistrate acknowledged the ongoing litigation in Texas that is also challenging the validity of the Department's guidance about Title IX's application to transgender rights.  Like the decision from Ohio that we blogged about recently, the magistrate in this case determined that the Texas federal court judge's issuance of a nationwide injunction against the guidance has any bearing on this case. 

Coincidentally, however, the second decision of note this week pertains to that same injunction. The federal judge in Texas rejected arguments by the Department of Education to narrow the scope of that injunction to apply only in the 13 states that are plaintiffs in the Texas case, and reasserted that the Department of Education is “enjoined from using the Guidelines or asserting the Guidelines carry weight in any litigation initiated following the date of [its August 21, 2016] Order." 

The two decisions this week are certainly in conflict, as the nationwide injunction is premised on the judge's acceptance of the argument that the transgender guidance is most likely not an appropriate interpretation of Title IX, while the decision in Illinois suggests that it likely is. This fundamental inconsistency could be resolved through the process of initials appeals, in the event that the circuit courts eventually agree to consistent answer to this question.  Alternatively, however, any circuit split that develops would increase the likelihood of the Supreme Court tackling this matter once and for all.  

Meanwhile, however, as recent decisions from other district courts have demonstrated, other courts seem skeptical of the power of one federal judge to affect litigation elsewhere. As the Township High School District demonstrates, that injunction is not interrupting enforcement of the guidance in earlier cases. Nor, as evidenced by the recent decisions in Ohio and Wisconsin decision, does it appear to interrupt efforts of transgender students themselves to assert a right to bathroom usage under Title IX. 

OCR Says Wesley College Violated Rights of Student Accused of Sexual Misconduct

Today the Department of Education's Office for Civil Rights announced an agreement with Wesley College in Delaware that resolves certain violations of Title IX that the college has committed in its response to sexual assault cases. The agreement is unique in that it is the first time the agency has resolved a complaint filed by a student who was accused and disciplined for sexual misconduct. The agency agreed with him that the process the school used to adjudicate his case, and ultimately expel him, was not "equitable" as required by Title IX.

In 2015, someone (or someones) planned and broadcast a live stream video of a male student having sex with a female student at a college fraternity house without the female student's knowledge. Witnesses to the live stream named the accused student as one of those who had orchestrated the live stream, along with other members of his fraternity. Based on these reports, the college immediately issued an interim suspension, without undertaking any kind of preliminary investigation, such as interviewing the accused student. This was in direct violation of the college's own policy, which provides accused students with an opportunity to share their side of the story before an interim suspension can issue. This was also one of several aspects of the college's violation of Title IX's requirement of an equitable response, according to OCR.

Next, an investigator prepared a report for the judicial hearing without interviewing the accused student, an additional policy violation.  Relatedly, the college also skipped a preliminary "conference" that was required by college policy, which would have also given the accused student to tell his side of the story.  Meanwhile, the college failed to provide the accused student with accurate information about the hearing process. This misinformation, combined with the fact that the college failed to hold the preliminary conference, caused the student to believe that the judicial hearing that determined his responsibility was actually the preliminary conference. Owing to this confusion, he did not bring witnesses or otherwise prepare a defense to his hearing.  This collection of errors was cited by OCR as an additional examples of inequitable conduct by the college.

The hearing itself was also plagued with errors.  For one, the college had not provided him with an advance copy of the investigator's report and other key evidence, despite being required by its own policy to make such evidence available to both parties. Another error occurred when the accused student was not allowed to hear the testimony of the other students who had been charged.  The testimony of these students, who named him as a participant in the live-stream planning, was the only evidence that supported the board's finding him responsible.  However, the accused student was denied the opportunity to hear or question their testimony. Finally, OCR noted that only six business days had passed between when the accused student received notice of the charge against him and the college's decision to expel him. The college's own policy contemplates a longer time frame that permits respondents with adequate time to prepare to participate in the process.

In addition to finding the process in the accused student's case to be inequitable, OCR examined the records of other adjudications by the college and found evidence that some of these problems are widespread. Specifically, the college appeared to impose interim suspensions without preliminary investigation in other cases as well, and also had a habit of depriving accused students of the opportunity to present witnesses and other evidence.

OCR even found that the college violated the rights of complainants, such as by failing to provide appropriate interim remedies like counseling and academic services, and by failing to provide complainants with written notice of the outcome. The college also failed to provide sufficient notice and dissemination of its policies, information about the Title IX Coordinator, and information about how to report sexual assault.  In this respect, Wesley College hardly looks  a college that is "overcorrecting" the problem of sexual assault. It is not satisfying the Title IX right of the complainant OR the accused.

I am glad to see that OCR is using its enforcement power to ensure that respondents as well as complainants have the right to an equitable process. Such fundamental fairness is of course important to students who are accused.  It's also important to complainants that respondents are treated fairly, since procedural errors introduce the risk that a punishment could be invalidated on appeal. Moreover, I think it's helpful that OCR is clarifying that Title IX is not to blame when institutions deprive accused students of fair investigations and hearing.  Clearly, Title IX does not require such unfair procedures, and in fact, Title IX is violated when they occur.

Disciplined Student Prevails Against Brown on Breach of Contract Claim

Last week a federal judge in Rhode Island concluded a bench trial in a case between a John Doe plaintiff and Brown University who sued the university after he was suspended for sexual misconduct.  The only issue that the trial addressed was whether the university breached its contractual obligation to John Doe in the manner that it conducted the process by which he was found responsible and disciplined. In siding with the plaintiff, the court made clear that it was not concluding anything about the merits of the complaint against Doe.  It also expressed alarm that Brown students had orchestrated an email campaign directed to the judge to criticize his earlier decision that allowed Doe to remain on campus while his case was pending, and hoped that these students would read the decision and be educated about the role of the courts in such matters.

As for the breach of contract claim itself, the court first acknowledged that the Student Handbook, including the Code of Conduct, form the basis of a contract between a student and the university. In this case, the conduct for which Doe was suspended occurred in 2014, so his case should have been governed by the policy and process contained in the 2014-15 version of the Code of Conduct.  Brown has subsequently updated its policy to provide a definition for consent, which was absent from the 2014-15 policy, but it applied the newly-codified definition of consent when it adjudicated Doe's case.  The new definition clarified that that consent could not be obtained through "manipulation," and the charge in Doe's case was that he had manipulated another student to have sex. (In fact, he had admitted to such "manipulation" in an incriminating text message.)

Brown argued that the consent definition merely "codified community standards" of consent, and therefore did not materially change the 2014-15 Code. But the court determined that a reasonable student would not have expected in 2014-15 that sexual activity to which another had been manipulated to consent violated the Code of Conduct. The Court acknowledged that this case was a "close call" and that the problem it acknowledges is limited only to those cases that occurred prior to the change of definition.  As such, it is not an indictment on Brown's sexual assault response or, for that matter, on Title IX.

Though the court invalidated Brown's decision to suspend Doe, it acknowledged the university's right to hold another hearing using the 2014-15 Code. Presumably, this would mean instructing the panel to apply a common sense/ common understanding of consent, as they had done prior to the Code's incorporation of a specific definition.  It is possible that under such a definition, the "manipulation" in question negates consent, but hearing panel could decide otherwise.

Throwback Thursday, aka Updates

UCLA settled a lawsuit last month with two graduate students who alleged that administrators discouraged them from filing a formal complaint against a professor who sexually harassed and assaulted them. The settlement includes a financial settlement, part cash as well as a year-long dissertation fellowship to one of the plaintiffs. The situation for the history professor they accused of unwanted sexual advances has been in flux since the women initiated their complaint in 2013. He was suspended without pay for a quarter and resigned his position as director of the Center for Near Eastern Studies. He resumed teaching, but is not teaching this fall. He is scheduled to teach in the spring. He is not allowed to use his history department office during the week. His office hours are being held in a library on campus and he is being required to keep the door open while meeting with students. He is not allowed to have contact with one of the plaintiffs. (It seems the other has graduated.) He has to pay the UCLA Board of Regents $3,000.

The saga at Baylor continues, probably because they keep doing ALL THE WRONG THINGS. Granted they cannot control the behaviors of the people they have fired who continue to talk to the media. Though I am curious as to why Art Briles sat down with ESPN whose reporters have not been kind to the school if the many, many segments on Outside the Lines are any indication. The way Briles and former President Ken Starr have proceeded since their release is an interesting study in voice and silence. Sexual assault is a very silencing experience and only a few of the women who have joined the lawsuit against Baylor have spoken about their experiences. Some have asked to speak personally with Briles who said he has been prevented from doing so under terms of his release (his very lucrative release). So he cannot speak to them but he can speak publicly--about some things--the things he wants to talk about; the things he thinks will rehab his image and get him another coaching job next year.

Starr seems to be trying to help his friend, Briles, on this quest. He said in a room full of reporters in Texas that Briles was "honorable" and "unfairly criticized." He also said, in reference to the sexual assaults (apparently there is no gag order on him) that it was not a problem with the culture of Baylor or Baylor football. He was called out by a reporter who thought it hypocritical that Starr could address a culture of alcohol abuse on his campus but not sexual assault. And still these men get public platforms. The good(ish) news? Well all the talking is not helping public image. I have seen stories from sports journalists warning schools that might in the market for a new football coach to avoid Briles.

And now the Title IX coordinator has resigned. Patty Crawford, at Baylor since late 2014, said she was being prevented from implementing the changes outlined in the Pepper Hamilton report--the one Baylor itself commissioned when news of the sexual assaults became public. Crawford's resignation, her filing of a Title IX complaint with OCR, and her stories about how Baylor continues to violate the law suggest what many of us suspected: that report was a PR move. Who are they going to get to do that job? How are they going to explain themselves when OCR heads to Waco? Oh never mind. They promoted from within--of course:
               On Monday, Baylor said it had filled Crawford's post by promoting senior deputy                 coordinator Kristan Tucker, whom interim president David Garland called "a capable and experienced Title IX professional." (from ESPN article linked above)

It also appears that a Title IX investigator, one of two employees charged with investigating Title IX violations on campus, is no longer at the school. Whether she resigned or was fired is unknown.

On the same day that Crawford resigned, two more women joined the lawsuit against Baylor. That brings the total to eight. Only one of the eight women was raped by an athlete. The culture of sexual assault--that does not exist, according to Starr--is not confined to athletics.

The watered down California bill about LGBT discrimination at private colleges has passed. Governor Jerry Brown signed the bill which requires private schools to publicly post their gender and sexuality policies and to note any Title IX exemptions they receive from the Department of Education. The bill was originally written to prevent these schools from discriminating against LGBT students, but the outcry from religious schools and groups resulted in the compromise bill signed last week.

Coach Wins $3.35 Million Jury Verdict for Retaliation

Last week we blogged about the trial between San Diego State University and its former women's basketball coach Beth Burns.  Burns was suing on the grounds that she was wrongfully fired from her job and for reasons that involved retaliation for her complaints about gender inequality that affected her team.

By way of update to that earlier post, we learned this week that the jury did not accept the university's argument that Burns was fired for legitimate reasons, and awarded her $3.35 million in damages.

Though we haven't had one on the blog in the last couple of years, this case is part of a broader trend over the last 10 or so years or so, where retaliation proves a successful litigation strategy for coaches who are terminated or face other reprisals on the job. It also seems to be a trend that when coaches win retaliation claims, they win big.

Another Court Requires School to Accommodate Transgender Student's Bathroom Use

On the heels of a similar post from last week, another federal district court has enjoined a school district's policy of banning transgender students from using the bathroom that matches their gender identity.  An elementary school student in Ohio, a transgender girl, will be able to use the girls' bathroom while she litigates her permanent right to access gender-appropriate facilities under Title IX. Similar to last week's ruling, this court recognized the plaintiff's likely success on the merits of her claim as well as irreparable harm in delaying the remedy of a court order.

Simultaneously, the court in this case considered and denied the school district's motion to enjoin the Department of Education's enforcement of its interpretation that Title IX covers discrimination against transgender student. In this regard, the court's opinion contrasts with a federal district court decision last month that granted the state of Texas's motion to enjoin Title IX's enforcement.  Notably, the court in the current case was not deterred by the purported "nationwide" scope of the Texas injunction:

Because Ohio was not a party to the Texas litigation, and because this litigation was initiated before the Texas court issued its preliminary injunction, the injunction does not apply here. This is also consistent with the Supreme Court’s admonition that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” 

The court in the Ohio case conducted a thorough analysis of Title IX's enforcement mechanisms before determining that it does not have jurisdiction to conduct pre-enforcement review of the Department of Education's policy. Title IX expressly provides educational institutions with the ability to appeal to the federal courts after the agency orders withdrawal of their federal funding for violations of Title IX.  The court determined the availability of post-enforcement judicial review precludes earlier review.  The court drew parallels between Title IX's statutory provisions governing enforcement actions and judicial review to the analogous provisions in another statute (the Mine Act) that Supreme Court concluded similarly precluded pre-enforcement judicial review, while distinguishing it from another statute (the Clean Air Act) in which the Supreme Court permitted pre-enforcement judicial review.

We now have two district courts with competing positions on whether the Department of Education's transgender policy is vulnerable to injunction. Showdown!

Title IX Retaliation Case Heads to Jury

This week, jurors in San Diego will decide if San Diego State University committed unlawful retaliation when it fired women's basketball coach Beth Burns in 2013.  At the time, Burns was a veteran head coach with a long success record and who had just posted a record number of season wins.  She was also just nine months in to a 5 year renewed contract, and was making well over 200,000 a year.  Her past performance evaluations praised her for running a solid program and doing an "excellent job."

So why was she fired?  That is what the jury will have to decide after today's closing arguments summarize a month-long trial's worth of testimony. At the time Burns was fired, university officials cited as "sole cause" for her termination an incident in which she slapped her assistant coach's knees with a clipboard as they watched a game from the sidelines. At trial, however, witnesses for the university testified that Burns had a long history of treating her colleagues and employees with anger and disrespect.

Burns, on the other hand, testified that she was fired because she blew the whistle on unequal treatment for the women's athletics, including her team.  Reportedly, a key piece of evidence in her case is an email between the (then) athletic director and a former university vice present that describes Burns as "driving us crazy w complaining."

Other questions raised a trial include: Why did the former athletic director destroy the notes of a key meeting about Burns with a university vice president? What did the president mean when he brought up Bobby Knight (former Indiana coach famous for his temper) in his testimony?  Was Burns sabotaged by a member of her own staff who was working in cohorts with an associated athletic director to create a biased record of the coach's behavior? And of course, the question of whether the the university can credibly claim that Burns was fired for "misconduct" begs the question, was her conduct in fact a departure from athletics-cultural norms?  (As one witness testified, "What most people call yelling, we (in athletics) call communication.”)

The jury is expected to receive the case on Tuesday, and will take however long it needs to render its verdict, to which nine of twelve jurors must agree.

Note: This is not the first retaliation case we've blogged about against San Diego State. In 2007, the university was sued by a former women's swim coach. She alleged that she was fired for complaining about gender inequality and sexual harassment. The university claimed that she was fired for poor performance, though, remarkably, the athletic department had closed the pool for seven years, making it difficult to produce a winning record!  Eventually the university settled for $1.45 million dollars.

High School Must Permit Transgender Student's Use of Boys' Bathroom While Litigation Proceeds

A transgender student in Kenosha, Wisconsin, has won a temporary injunction against the school district that will permit him to use the boys' bathroom in accordance with his gender identity while a court decides the merits of his claim that exclusion violates his rights under Title IX and the U.S. Constitution.  Because the plaintiff's birth-assigned sex is female, his high school had been insisting that he either use the girls' restroom or an out-of-the-way single-user facility. Additionally, the school made headlines last spring when they reportedly announced a policy that transgender students would have to wear green wristbands to help school officials determine any bathroom infractions.  (It is not clear to me whether this policy actually took affect.)

Earlier this week, the court denied the school district's motion to dismiss the plaintiff's case, which allows the case to proceed to the next stage of litigation, and eventually a judgment on the merits or a trial. Then, it granted the plaintiff's motion for a preliminary injunction, which grants him access to the boys' bathroom while his case is pending. The legal standard for a temporary injunction requires the court to decide that the plaintiff is likely to win on the merits, as well as that he will face irreparable harm if the relief he requests is delayed.  On the second point, the judge reportedly considered experts' testimony about the psychological harm that transgender individuals experience when their gender identity is denied.  

Last year a transgender student in Virginia won a court order that permitted him to use the bathroom according to his gender identity, but the Supreme Court issued a stay that delays the effective date of that order while it reviews the case.  Notably, however, the Supreme Court's stay did not involve a preliminary injunction and addressed a case that was further along in litigation than the Wisconsin case. So the issuance of a stay in that case does not necessarily dictate a similar outcome here.

UNH's Million Dollar Scoreboard

As an alumna of the University of New Hampshire, as a scholar of sports, as an educator and advocate for education, I am disappointed in the university's choice to spend $1 million of a $4 million donation to a scoreboard for the new football stadium.

The gift is from the estate of Robert Morin, an alum and employee of the school who spent his 50-year career as a library cataloger. People were shocked that Morin had accumulated such an amount throughout his life and then that he left it all to the university. It gave many of us those warm, fuzzy feelings about our alma mater or respective alma maters.

Morin only restricted $100,000 of the donation--earmarked for the library--so UNH technically did not violate any restrictions on the money, though many, myself included, believe they violated the spirit of the donation. Another million lost in the football arms race. Wasted by an institution trying to be something it is not--a big-time football school.

I have complicated feelings about the morality of football, especially college football, in an era of academic and recruiting scandals and a moment when we must acknowledge the trauma of the sport, and the disproportionate effect of that trauma on poor men and black and brown men. But I am not inherently opposed to some of the money going to the football program. I am opposed to it going to a scoreboard which, in the age of planned obsolescence, will be out of date in 5? 10? years. Use it to endow a scholarship for a player who wants to go grad school maybe. For tutoring or other academic enrichment opportunities if you want to use the money in athletics. Pay it forward; make it meaningful.

In addition to the fact that this spending seems neither fiscally nor morally responsible, it may have Title IX repercussions. I have not seen the scoreboard nor have I seen the athletic department's budget this year, so I cannot say for sure, but if that scoreboard can only be used for football, it is benefiting only male athletes. Even if it can be used for other sports, it still likely benefits more men than women. So I am wondering if the university has earmarked $1 million that will go towards increasing the quality of the experience of 120ish female student athletes. New turf for the field hockey team? Chartered flights for the soccer team?

Yes, because Morin did not earmark most of the money, the university could spend it in athletics. But spending money in athletics comes with its own set of rules--including compliance with a federal law.

Frostburg State Agrees to Title IX Compliance

Today the Department of Education's Office for Civil Rights announced an agreement with Frostburg State University in Maryland that will obligate the university to address violations of Title IX revealed by an OCR investigation of 40 incidents of sexual harassment and sexual assault that the university had a responsibility to address.

In a press release, OCR summarized some of the university's violations as follows:

Required reporting by mandatory reporters that were not made even though they had notice of an alleged rape. 

Reported off-campus incidents and incidents involving non-student victims or perpetrators that were not investigated or were not fully investigated. 

Repeated violations of a no contact order that were not properly addressed and adequate steps to safeguard the victim were not taken. 

Sufficient interim measures that were not provided to victims. 

Requests for confidentiality that were not balanced against the need to keep the community safe. 

Title IX investigations that were not launched due to an improper reliance upon local or campus police investigations and reports.

In addition, the university resolved a complaint informally that should have gone through a formal hearing process, and took 10 months to resolve another. In one case, the university failed to conduct its own independent investigation of a matter that it instead referred to local law enforcement.  And while recent revisions to the university's policy for addressing sexual harassment and sexual violence complaints addressed most of the earlier shortcomings, some deficiencies remain.

In the agreement, the university agrees to bring its policies into compliance, conduct additional training, reimburse two complainants for the cost of counseling and academic services that the university should have provided, address identified failures to conduct adequate investigations, provide written notice of remedial services, and provide written notice of the outcome of the complaint investigation to the parties, conduct its own retrospective review of sexual harassment complaints to determine whether the investigation was prompt and equitable, and enhance its outreach and climate assessment efforts.

·   

In the wake of Brock Turner's release...

There was a protest outside of the country jail in California last week when former Standford student-athlete Brock Turner was released after serving 3 months of his 6-month sentence for sexually assaulting an unconscious woman on campus. That protest centered largely on the judge responsible for the lenient sentence who protesters are trying to get removed from the bench. These types of actions have been occurring since Turner's sentencing.

The protests have moved east, but they look a little different. Outside of the Turner family home in Dayton, Ohio where Turner will be on probation and have to register as a sex offender, which news reports say he has yet to do, are armed protesters. Armed with guns. There are signs as well calling for Turner's (and other rapists' ) castration.

Where to begin?

First, as I have noted previously, this is not a Title IX case. It is, however, a case of a violent athlete and the privilege conferred by being an athlete (and, in Turner's case, a white, class-privileged athlete). It is relevant because athlete privilege often affects how Title IX procedures are carried out (or not). Also, given reports about Turner's behavior coming from female members of the swim team, there was probably a Title IX case in there if someone had chosen to pursue it.

What I am more interested in regarding these protests is the violence of them. The threat of personal harm, all extralegal, is disgusting. Turner did something horrible and disgusting; so did the judge that handed down the 6-month sentence. Protesters with large guns and signs suggesting that Turner should be raped or castrated do not make any of it any less disgusting. They do not right the wrongs.

Are the protesters suggesting that vigilante justice is more fair than the system to which Turner was subjected? I know there have been a lot of superhero movies this summer, but the romanticization of vigilantism is just that, romanticized. And it is without context--especially historical context that includes its use against racial, ethnic, and sexual minorities. Vigilantes have used guns and castration and rape to keep people in their place when they thought the law was not doing enough or that these extralegal actions could serve as a warning.

So why these actions?

It goes beyond vigilantism. These protests and the symbols and words being used are a means of reifying a masculinity that is still violent and still sexually violent. In other words, it is not questioning the level of violence in our society, it is suggesting that certain forms of violence are more acceptable than others. Castration is sexual violence. The rape of men is sexual violence. Guns are symbols and weapons of violence. And they are all about the power of men. What these protesters are suggesting is that their form of violence, encouraged by state-sanctioned gun use in the form of Ohio's open carry law, is real masculinity. Turner's form of violence--sexually assaulting an unconscious woman--is not a proper display of masculinity. Slinging a semi-automatic across your body and standing watch outside the home of a convicted rapist is an acceptable use of violence, based on these displays.

This is also about class and class-based masculinity. To some people, including those standing outside his house, Turner is not doing masculinity in an acceptable way. His class privilege, his sport (swimming), and the nature of his crime all contribute to the perception that Turner is not the right type of masculine. Hegemonic masculinity, how it is created and embedded in society, is on display on that sidewalk.

Amid all this violent masculinity, where is the concern about the woman who was raped? About women who are and will be victims of sexual violence? Where is the challenge to rape culture and to the culture of violence more generally? It is missing. It is all missing from that protest, which is sadly ironic but very much proof that this is not about the sexual violence perpetrated against women.

There are no apologies to be made for Brock Turner, and he has already been granted too much leniency. His enactment of violence and the protesters' enactment of violence are both tied to violent masculinity, and violent masculinity is at the heart of rape culture.

Updates

University of Florida:
The student hearing of football player Antonio Callaway went as predicted. The outside arbiter found him not guilty of sexual misconduct.The victim, protesting the use of arbiter who is an alum and contributes money to the football program, boycotted the hearing.
It is unclear whether the victim plans  to take any additional action. Callaway is in action this Saturday against our local team, the University of Massachusetts. Interestingly, five of his teammates are not. They have been benched for various offenses including shooting BB guns in the residence halls and fighting during practice. Team culture...
One important clarification about this case. The media I read prior to my initial posting implied that using an outside arbiter (something I suggested might need review as a legitimate procedure for handling cases), was a common practice at UF. In fact, it is not. This was the first time UF had gone this route. This is eerily similar to Erika Kinsman's case at Florida State where a retired judge was brought in to conduct Jameis Winston's hearing and found him not responsible for sexual misconduct.

Kent State
The plaintiff who filed a lawsuit against the school in February 2016 alleging the school violated Title IX in the handling of her report of rape by her softball coach's son, has a filed a second lawsuit. This one is related to the university's failure to provide documents, including personnel records and student reviews of the softball coach, needed for the case. A judge has ordered this lawsuit to mediation. KSU has said the records requests from the plaintiff lack merit and specificity. It seems they are going down the dig-in-our-heels route.


California bill:
The bill initially proposed by state legislator Ricardo Lara has been amended after intense backlash from conservative religious organizations and schools. The initial attempt by Lara was to prevent these schools from discriminating against LGBT students by denying them exemptions. He changed the bill to mandate that religious colleges with exemptions reveal that fact (to whom or how is unclear based on media coverage) and that they report to the state when a student is expelled for violations of morality codes.
The bill and the ensuing controversy was mentioned in a recent Atlantic piece about the ongoing tensions between religious institutions, LGBT discrimination, and government funding of education.

The transfers issue:
Indiana State University took one day to dismiss from its football team a transfer from after they became aware of his alleged involvement in a sexual assault when he was at the University of Kansas. Though I remain suspect about the exchange of information that occurs in the transfer process, it does seem like ISU acted quickly. Perhaps it was just because a civil lawsuit against the player has been announced and ISU does not want to get caught up in the whole thing. In short, the decision was not very proactive, but it also was not as reactive (i.e., let's wait to see what happens) as we have seen in other situations.

Federal Court Enjoins North Carolina's HB 2 as applied to UNC

Yesterday a federal court in North Carolina issued an injunction that will prevent the state's "bathroom bill" from taking effect at the University of North Carolina.

By way of background, earlier this year, North Carolina legislature passed HB 2, which preempts local ordinances banning discrimination on the basis of sexual orientation and gender identity, and also restricts occupancy of multi-user bathrooms that are located in state agencies and public schools according to the user's "biological sex" as indicated by their birth certificate. Transgender plaintiffs challenged HB 2 as a violation of their constitutional rights, as well as a conflict with Title IX.  As part of the lawsuit, which names the University of North Carolina as one of the defendants, they successfully sought to immediately enjoin the bathroom restriction at UNC so that they can continue to use the bathroom that matches their gender identity while the lawsuit proceeds.

The standard for a preliminary injunction requires a plaintiff to demonstrate likely success on the merits as well as irreparable harm if the injunction is denied. Applying this standard, the court determined that the plaintiffs will likely succeed in their argument that UNC's enforcement of HB 2 violates Title IX.  The court applied G.G. v. Gloucester School District, the Fourth Circuit decision that confirmed a transgender boy's right under Title IX to use the boy's bathroom.  The federal courts in North Carolina are also in the Fourth Circuit, so the Gloucester case is binding precedent -- even though the remedy is temporarily on hold, for now, pending Supreme Court review.

In contrast, the court determined that plaintiffs' constitutional claims raised a novel application of the Equal Protection Clause, thus precluding the "clear showing" of likely success on the merits that is necessarily for a preliminary injunction. But the plaintiff's likely success under Title IX, combined with its conclusion that transgender students at UNC will suffer irreparable harm -- no place to use the bathroom -- satisfied the requirements for injunctive relief.

As a result, North Carolina state law does not prohibit UNC from accommodating the transgender plaintiffs' gender-consonant bathroom use.  If UNC refused such accommodations, however, the federal government is presently enjoined from enforcing such an interpretation of Title IX as a result of last weekend's decision from the federal court in Texas.  I read these conflicting injunctions to effectively permit UNC to choose for itself -- for now --  whether to accommodate transgender students, without a threat of either state or federal penalties for either choice it might make.

Federal Court Enjoins Title IX Transgender Guidance

This week, a federal court in Texas issued a preliminary injunction that bars the Department of Education from enforcing the interpretation of Title IX that is contained in its May 2016 guidance regarding transgender students. In that guidance, the DoE affirmed that discrimination on the basis of sex includes discrimination on the basis of gender identity and transgender status, and that as a result, institutions receiving federal funding must permit transgender students to access sex-specific facilities and programs that correspond to their gender identities rather than their birth-assigned sex.

The state of Texas is the lead plaintiff in a lawsuit that is challenging the DoE's interpretation. Yesterday, the federal district court granted the plaintiff's motion for a preliminary injunction, which means that while litigation is pending, the Department cannot insist that school districts and universities refrain from discriminating against transgender students, or revoke the federal funding from those who do.  The standard that the courts use to determine if a preliminary injunction is appropriate primarily considers whether the plaintiffs are likely to prevail on the merits, and that the balance of harm tips in their favor.  In addition, the court had to address several threshold issues regarding the justiciability of the case including the standing of the plaintiffs and the ripeness of the claim.

Substantive invalidity.  One key issue on which the court thinks the plaintiffs will likely prevail is their argument that existing regulation does not support the agency's position contained in the guidance.  The court disagreed with the agency's position that the regulatory ban on "sex" discrimination, subject to exceptions for sex-segregated facilities like bathrooms and dormitories, includes discriminating against transgender individuals by denying them access to facilities that are consistent with their gender identities. According to the court, "[i]t cannot be disputed that the plain meaning of the term sex as used in § 106.33 when it was enacted by DoE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth."

I think that even if conceded, that argument misses the point. It is possible to view transgender exclusion as sex-based treatment in the sense that a transgender individual's [anatomical, birth-assigned] sex is being viewed in relation to their gender identity.  Individuals whose sex and gender identities align can use the bathroom that matches their gender identity, while individuals whose sex do not align cannot the bathroom that matches their gender identity. Sex, even in its "plain meaning" attributed by the court, is still a factor being taken into account. An interpretation that this manner of discrimination is already prohibited by the regulations is therefore a permissible one for the agency to make.

Procedural invalidity. The court also concluded that the plaintiffs will likely prevail on its argument that the DoE should have used statutorily prescribed notice and comment procedures. When an agency promulgates a binding regulation, it must publish the rule in essentially draft form, get public input, and address the public's comments in the final version of the rule. However, when an agency issues sub-regulatory guidance that merely clarifies or interprets an existing regulation, it may legally bypass the notice-and-comment procedural requirements.

The court disputed DoE's classification of the guidance as an interpretive rule, concluding that it "de facto regulation" that should have gone through notice and comment, a conclusion that turns on the court's sense that the guidance was meant to be binding and not discretionary. But a key characteristic of an interpretive rule is whether, without it, the agency would have the legal basis on which to bring an enforcement action to the same effect. Here, existing regulations prohibit treating individuals differently on the basis of sex, subject to the exception for sex-segregated facilities like bathrooms and dormitories. Even if the guidance had never been published, the DoE could have advanced this position in the context of an enforcement action. In fact, it did that very thing.  I think the court missed an opportunity to discuss an important characteristic of an interpretive rule, the fact of an already-existing basis for enforcement. 

Ripeness. One other thing that surprised me about the court's opinion was the standard that it used to determine that the case was ripe. Here, the plaintiffs are asking the court to throw out the Department's guidance before it has been enforced against any funding recipient. According to a Supreme Court decision called Abbott Labs, such pre-enforcement review is only appropriate when the questions raised by the case are fit for review and that withholding of review creates a hardship for the plaintiff.  But notwithstanding this two-part test, the Texas court seems only concerned about fitness and not about hardship. In Abbott Labs, the drug manufacturer-plaintiffs challenging a USDA labeling requirement satisfied the hardship requirement because there were high costs associated both with compliance and with non-compliance. Are the schools in Texas and other plaintiff states in a similar double bind?  The cost of compliance is just to let transgender kids use the bathroom that matches their gender identity.  The percentage of students who are transgender is exceedingly small, maybe 1% or less.  For schools that do have transgender students in their population, it is possible to comply with the guidance without incurring any cost at all, which could not be said for the drug manufacturers in Abbott Labs.  Even the cost of non-compliance is distinguishable from that in Abbott Labs, where the Court was not only concerned with the possibility of incurring fines for mislabeled drugs, but also the particular cost to a drug manufacturer's reputation that come from being subject to an enforcement action.  This extra consideration should be necessary, since the penalties that result from the enforcement action itself are always ripe for review. And it doesn't seem to be present here.  In light of the court's omission of a key component of the ripeness test, I am guessing this issue will be an important one on appeal.

Florida accuser tries new tactic

The student conduct hearing process for Title IX cases at colleges and universities can be, among other things: fraught, painful, confusing, offensive, ineffective, and biased.

At the University of Florida, one student accuser is attempting to address the latter: bias. She  refused to take part in the conduct hearing for two football players she has accused of sexual assault and attempted sexual assault her because the man adjudicating the case is a football booster.

The woman did not report the assault to university or local police, instead choosing to use the student judicial process. Florida appoints adjudicators for Title IX cases. John Clune, the Colorado-based attorney who has handled many Title IX sexual assault cases (he is Erica Kinsman's lawyer), is representing the woman. He made the statement on behalf of his client: "the fact that UF has hired a football booster to adjudicate a sexual assault charge against one of the team’s own football players is a fundamentally skewed process in which [the complainant] refuses to participate."

Bias in the processes of both the school's judicial process and the legal system is rampant in Title IX cases. We saw it in Kinsman's case and it was a major theme in Jon Krakauer's book about sexual assault at the University of Montana. 

Read more here: http://www.miamiherald.com/sports/college/sec/university-of-florida/article94006377.html#storylink=cpy

The players were suspended from the team for violating the student code of conduct. They were barred from campus but remained enrolled and took online classes. One player is planning to transfer (apparently as part of a deal, which included an apology), the other is remaining at the school and fighting the accusations and, as of last week, was practicing with the team (though he has not been officially reinstated).

It is unclear what will come of the boycott, but the action itself is important. It is an opportunity to really examine and potentially challenge the ways in which schools are adjudicating Title IX cases. It may also be an opportunity to assess the role and training of outside adjudicators. While the adjudicator in Kinsman's case against Jameis Winston, a former Supreme Court judge in Florida, was deemed acceptable by both sides, it was clear from the transcripts that he did know the student judicial process. A UF spokesperson said adjudicators are well-trained but apparently not vetted for bias the belief being that the training will somehow eliminate bias.

Schools need to do better. This is not news. But it seems as if schools that want to demonstrate attempts to change the climate of the campus should at least start at the judicial hearing process.

Law Professors Publish Support for DCL's Preponderance Standard

Over ninety law professors* have signed on to a white paper that defends the Department of Education's 2011 Dear Colleague Letter and its clarification that universities must use the preponderance of evidence standard when deciding sexual assault cases.  Under the preponderance standard, decisionmakers should find a respondent responsible for misconduct if the balance of evidence tips in that direction even slightly.  The agency felt the need to clarify Title IX's requirement of a preponderance standard after it had adjudicated cases against institutions that been requiring "clear and convincing" evidence of the respondent's guilt, a standard the tips the balance in favor of the accused, and the "beyond a reasonable doubt" standard, which tips it even more.

As this article notes, the recent white paper stands in contrast to other position papers like that of FIRE and the AAUP, which have criticized the preponderance standard out of concern for the rights of accused students. The white paper's authors argue that the preponderance standard is consistent with other applications of civil rights laws, and that there is no justification for a standard that would make it harder to address sexual harassment than other types of harassment and discrimination. Additionally, the white paper points out that the preponderance of evidence standard applies to lawsuits filed by students who have been disciplined for sexual assault. In a world where universities could use a higher standard such as clear and convincing to adjudicate sexual assault cases, but students who are disciplined could challenge the result based on the lower preponderance standard, there would be little incentive for universities to impose discipline on students accused of sexual assault.

Moreover, the white paper authors point out, the more defendant-protective standards of evidence that apply in criminal proceedings are used as a check against government abuse of power.  In contrast to government, which has the power to use criminal proceedings to potentially deprive citizens of their life, liberty, and property, a university's power is limited to expelling a student from school. Attempts to analogize to the criminal standard improperly "conflate" university discipline and criminal justice system, which have very different objectives.


*myself included -EB

Another Religious Exemption Withdrawn

Another university (see this earlier post) has formally distanced itself from an earlier request for a religious exemption under Title IX. The Chronicle of Higher Education reports that Loyola University of New Orleans has written to the Department of Education to ensure that the agency no longer considers it among the institutions that have historically or recently exercised their statutory right to opt out of Title IX provisions that conflict with religious tenets.

In Loyola's exemption request, which it filed in 1986, the institution affirmed that regulatory obligations to include "termination of pregnancy or recovery therefrom" in its student health insurance plans conflicted with its Catholic tenets opposed to abortion. Today, however, the institution no longer offers a student health insurance plan, so the exemption is no longer necessary.

As the Chronicle's article points out, there was no legal reason for the institution to formally disclaim an exemption that only pertains to an obsolete program. Thus, the purpose of the letter seems to be entirely a matter of public relations. As religious institutions have lately rushed to claim exemptions that would permit them to discriminate against LGBT students, the list of religiously-exempt institutions has acquired a certain degree of notoriety. Loyola, like Pepperdine, looks to be going out of its way to distance itself from the other institutions on the list.

Not IX but...

Two stories this week that were tangentially related to Title IX or have Title IX implications.

First, the story everyone is talking about: Texas A&M's Chalk Talk for Women. Let's leave aside for now how these football for women camps/events are becoming a money-maker for intercollegiate football programs and what they exploit. The gist: offensive slides describing football tactics using sexual innuendo and re-writing the school fight song

Outside the Lines interviewed an attendee, a woman who is head of the Aggie Mother's Club. She defended the coaches and the event calling it satire and noting that no one she encountered during the event (there were 700 women registered) complained and that they enjoyed the presentations. She said she laughed it off and attributed it to the coach's sense of humor and time in the military. She did not feel it sent a negative message to people about anything because there was--in her opinion--no message being sent. She said the coaches were being attacked with negative messages. She is going back next year.

Others have noted that at a time when football programs especially are trying to teach young men to respect women, this was hugely inappropriate and a step backwards. It is inappropriate at any time, of course. But there factors that speak to the culture of the A&M program that could, if a Title IX issue arises, come to the forefront.

First, one of the coaches who made the presentation and was subsequently suspended without pay for two weeks was a former coach for the Miami Dolphins. An offensive line coach who was fired in the wake of the Jonathan Martin/Richie Incognito bullying scandal. This is an example of toxic masculinity and misogyny and how it travels from one institution to another.

[Side note: Jessica Luther's book about sexual violence and intercollegiate football is coming out soon and I am very interested in reading it. Here is an interview with Luther.]

Second, the Aggie female fan who found nothing wrong with the talk also is indicative of the culture of A&M football. It is possible that there was no visible reaction because 1) women did not feel comfortable speaking out or even walking out in that space which was marked by fervent fandom and sexism and.or 2) female fans expect and accept that behavior as the price of fandom. One must accept the culture as it is--just as that fan in attendance accepted the coach's sense of humor and attributed his demeanor to his military service.

This is especially troubling because when something happens and female student comes forward and says she was sexually assaulted by a player, those fans will turn on her. We have seen it everywhere. These victims get run out of town--almost literally--because of the backlash. The culture of football includes the culture of fandom and if programs are running events for fans that makes them responsible for this as well.

On a sightly more positive note, the two-week, no-pay suspension of the two coaches who ran the chalk talk, the condemnation of the head coach (who issued the suspension) and the school president is at least a demonstration that the program is not being indifferent to the issue. (I have a post planned about how Baylor keeps resisting this.)

The second story, which has received far less attention, is about racial discrimination in women's sports. Three Black female basketball players from Cottey College in Missouri are suing the school saying they were treated differently from white players. They spoke of segregated practices, less playing time, and eventually expulsion from the team for what the school is calling behavior problems.

Again, not Title IX, but a reminder that discrimination is intersectional and that Title IX does not address the issues that women of color face in sports. This story reminded me of Jennifer Harris's case against Penn State and Rene Portland as well as the one from earlier this spring from Iowa State. Head coach Bill Fennelly (along with the school) is facing charges from a former player that he discriminated against her because of her race. Nikki Moody said that the coach called her a thug and created a hostile environment. In sum, sexism is not the only type of discrimination female athletes face and racism happens regardless of how many people of color are on a team.

Supreme Court Stays Ruling in Transgender Bathroom Case

The Supreme Court has temporarily stayed a court order that would have permitted a transgender male high school student to use the boys' bathroom, consistent with his gender identity.  As a result of this action, the order, which issued as result of the Fourth Circuit Court of Appeal's recent decision that the student's rights were protected under Title IX, will not take effect until the Supreme Court decides if it will add the case to the docket for its upcoming term.

Reportedly, the Court will likely make this decision in October or November, which means the student in question will have to start the school year excluded from the boys' bathroom, despite the fact that he identifies as male.

Lawsuit Filed in Green Wristband Case

Kris blogged earlier about Tremper High School in Kenosha, Wisconsin, which is requiring transgender students to wear bright green wristbands as a way to enforce their exclusion from the bathroom consistent with their gender identity. As Kris noted, a Title IX lawsuit has been filed on behalf of a transgender student who is being targeted by the green wristband rule. Based on the now-public complaint, this post provides some additional detail about the lawsuit.

The plaintiff, identified in the complaint by his initials, A.W., alleges that he was informed of the new green wristband policy at the end of last school year, and expects that he will be required to wear the wristband when school starts again in the fall.  The policy apparently came about after A.W. repeatedly used the boys' bathroom in defiance of school officials' insistence that he use the girls' room or an out-of-the-way single-use stall.

A.W. also alleges that the school denied his male identity by referring to him by his (female) birth name, by refusing to change his name and gender on school records, despite having produced the required doctor's verification of his transgender status. by assigning him to room with girls instead of boys on a school trip, and by initially refusing to let him run for prom king. (School officials eventually let A.W. onto the prom king ballot following a petition and sit-in protest attended by 70 students.)

The lawsuit declares that this conduct by school officials violates Title IX as well as the U.S. Constitution's Equal Protection Clause. It notes that the Department of Education has clearly stated that Title IX requires schools to treat transgender students in a manner consistent with their gender identities, including in the context of bathrooms. It seeks a court order prohibiting the school from excluding him from the boys' bathroom and from otherwise treating him differently from other male-identified students.

Transgender students have won other cases asserting their right to gender-consonant bathroom use. Though not binding on the federal courts in Wisconsin, the Fourth Circuit Court of Appeals determined that courts should defer to the Department of Education's position under Title IX.  A transgender girl in Maine also won her case seeking access to the girls' restrooms at school, though her case was litigated under Maine state law rather than Title IX.

CA bill says no exemptions

Just a couple of weeks after Pepperdine University told OCR that it no longer needed its exemption from Title IX, a proposed bill in the California legislature would prevent discrimination against LGBT students (which is what those of us who critique the exemptions argue is happening). To be considered tomorrow (Wednesday), the bill states that any religiously affiliated school that receives money from the state of California may not discriminate against LGBT individuals.

The biggest area affected by this would likely be financial aid in the form of California state scholarships. Though I imagine state bonds for facilities and other such state-assisted projects and research would also put those schools on the hook for compliance--or rather non-discrimination.

In short, no exemptions for religious schools in California if the bill passes. The usual sides emerged when the bill was proposed: religious freedom versus anti-discrimination for LGBT people. If this bill does get passed, there is a potentially interesting conversation about whether Title IX exemptions on religious grounds should have to meet a higher standard. 

Second Circuit Reinstated Disciplined Student's Title IX Claim Against Columbia

A student who was disciplined for sexual assault may continue to litigate his claim that Columbia University discriminated against him on the basis of sex, the Second Circuit Court of Appeals ruled on Friday.  The appellate court overturned a lower court decision that had granted Columbia's motion to dismiss the Title IX claim on the grounds that it failed to sufficiently allege that sex discrimination motivated the alleged procedural and substantive errors that lead to his suspension.

The appellate court, however, determined that the plaintiff's complaint met the legal standard for alleging a violation of Title IX and should not have been dismissed so early in the litigation.  The ruling reinstates the plaintiff's case and allows it to proceed to the discovery stage, during which both sides will acquire evidence that they intend to use at trial.  At the end of discovery, Columbia may again try to get the case dismissed in advance of trial (summary judgment). Then the questions will turn to the sufficiency of plaintiff's evidence, but here, early in the litigation timeline, the only thing in question is the sufficiency of the allegations in his complaint. 

The Second Circuit was influenced in its decision by the 1973 Supreme Court decision McDonnell Douglas v. Green, which allows discrimination plaintiffs with minimal, circumstantial evidence to benefit from a temporary presumption of the defendant's discriminatory motive. Additionally, the court referenced the Court's more recent, 2009 decision, Ashcroft v. Iqbal, which held that a complaint must plead specific facts sufficient to support a plausible inference that the defendant is liable for the alleged misconduct. Read together, according to the Second Circuit, the two cases permit a plaintiff to survive a motion to dismiss where the complaint specifically alleged facts that support a "minimal plausible inference" of discriminatory intent.  Here, the court determined, the plaintiff's complaint met that burden. Even if it is not probable, it is plausible to infer, as plaintiff alleged, that Columbia was biased against men in the wake of negative publicity over its mishandling of female student's earlier complaints of sexual assault. Moreover, the complaint's allegations of procedural errors that occurred during the disciplinary process and the absence of evidence to support the finding against are allegations of the type of minimal, circumstantial evidence that plaintiffs should benefit from under McDonnell Douglas. 

This pro-plaintiff decision is binding in the Second Circuit, which includes New York, Connecticut, and Vermont. In these states, it's likely to interrupt the trend in favor of  universities' winning their motions to dismiss, as disciplined students should now have an easier time advancing to the discovery phase of litigation. Though such victories are only preliminary in nature (since the university can again to dismiss the case after discovery, and still could win at trial), they may affect universities' incentives to settle rather than go through the cost and hassle of continued litigation. Outside the Second Circuit, the trend in favor of universities winning motions to dismiss may continue unaffected, as courts there court continue to take a stricter view of Iqbal. However, it is also possible that other courts will find the Second Circuit's reasoning persuasive and adopt it as their own. After all, that is what happened with Yusuf v. Vassar -- the 1994 Second Circuit decision that laid out the framework for "erroneous outcome" and "selective enforcement" disciplined student cases, and which has been cited in every Title IX disciplined student case of late. 

Does Michigan State's Women-Only Study Lounge Violate Title IX?

The Washington Post reported this week on the controversial decision by Michigan State University to lift the women-only designation that had formerly applied to a study lounge in the student union. Though the timing coincides with public critique of the lounge by a professor from the University of Michigan, MSU contends that it had already decided to remove the women-only designation as a means to comply with Title IX. Female and male MSU students alike have reportedly responded to the decision by petitioning the university to reinstate the women-only space.

Putting aside the question of whether a women only lounge is a helpful and/or necessary, I have to say that I agree with MSU's assessment that a study lounge designated for women only is a violation of Title IX.  I furthermore disagree with the university's apparent belief that adding a comparable lounge for men -- an idea that MSU rejected -- would have cured the legal problem.

Title IX by its terms bans sex discrimination in federally funded institutions. Technically, the only time it is permissible to treat students differently on the basis of sex is when there is an exception written in to the statute or into the regulations. . In terms of facilities, these areas include housing, toilets, bathrooms and housing facilities, where "separate but equal" treatment is permissible (34 C.F.R. 106.32 & 106.33). In terms of programs, it is permissible for colleges and universities to separate men and women in athletics, some physical education classes that involve contact sports, and choruses. Id. at 106.34.  Admissions of private undergrad institutions is not covered by Title IX which is how women's colleges can legally exist. But this exemption does not pertain to public schools like Michigan State, and even if it did, it does not give rise to a right to impose differential treatment on male and female students once they are admitted. Id. at 106.15. Elementary and secondary schools have a little more leeway to offer single-sex education in some circumstances, but this is not replicated for higher education outside the context of admissions. Id. at 106.34. Finally, there is a provision that allows a university to administer scholarships and awards that are designated for only one sex, so long as it "otherwise makes available reasonable opportunities for similar [opportunities] for members of the other sex."  Id. at 106.37.

And that's it. Those are the exceptions to the default rule of equal treatment. So in the absence of a provision governing women's-only or gender-segregated study lounges, they are technically not allowed.

That said, students are justified in insisting on space to study that is free from interruption by other students who want to ask them out -- what appears to be the chief concern of petitioning students at MSU.  One way to accomplish this would be for MSU to designate the lounge as a "quiet" lounge and prohibit all people from interrupting studiers, whether to ask them out or for other reasons that would presumably be equally intrusive. Or MSU could permit students to sign out the lounge (or parts of it) for use by study groups, which would permit a self-assembled group of female students to use the lounge at their designated time. A study lounge within a women's dormitory or on an all-women's floor would also be OK under the exception for housing.  Finally, I'd argue that it would also be permissible to designate space for a gender-focused student group, such as the Society of Women Engineers.  Though men could not legally be excluded from the lounge if they really wanted to make a big deal about it, a sign on the door declaring the space to be "SWE headquarters" would probably work to divert most male engineers to another lounge as a matter of respect and/or disinterest.

Pepperdine Withdraws Title IX Exemption

Huffington Post was the first to report this week on Pepperdine University's written withdrawal of an earlier, 1976 request for a religious exemption under Title IX.  Specifically, the exemption allowed Pepperdine to discriminate against female students by excluding them from opportunities to preach in chapel and otherwise withhold support for their efforts to become ministers. It also permitted Pepperdine to punish students for engaging in "heterosexual relations outside of holy wedlock or in homosexual relations."

Earlier this year, however, Pepperdine's president wrote to the Department of Education withdrawing the earlier-requested exemption, noting that the university is "committed to complying with Title IX" and that it wanted this to be reflected in any public lists or databases of Title IX-exempt institutions. When the letter came to light this week, the university supplemented it with a statement explaining that the earlier exemption " does not fully reflect Pepperdine’s values today" and affirming that "Pepperdine’s mission and the goals of Title IX are aligned."

Pepperdine's move is an understandable public relations move. As the government provides more transparency on religious exemptions from Title IX, it is reasonable to predict that exempt institutions will increasingly contend with negative publicity. Pepperdine's express rejection of its own earlier exemption appears to suggest that the university is making that same calculation. Interestingly, Pepperdine is in the midst of a lawsuit in which two former female students alleged that they were harassed and penalized because of their relationship with each other. Pepperdine could have doubled down on its exemption and become the first institution to test whether the exemption works as a defense in third-party litigation (as opposed to applying only to government enforcement). But such a tactic would have cemented Pepperdine's reputation as an exempt institution and underscored our worse fears that the exemptions provide a license to discriminate. So rather than use the exemption as a shield, Pepperdine has put it away so that it would not become a sword in which it might impale itself.

Trans issues round-up

In an act that I would find singularly outrageous if it were not in the current climate of fear--of everything and everyone--we see just how vulnerable some people are and how much we need the current interpretation of Title IX that includes transgender students.

In Wisconsin a trans high school student was told he could not use the boys' bathroom. He was offered the girls' bathroom or the office restroom. Neither option is acceptable but for a year, Ash Whitaker just did not use the bathroom at school, which had negative physical (and I would imagine emotional) health consequences. So he just started using the boys' bathroom seemingly without issue (and support from peers and some teachers) until the school instituted its wristband program. It would force students like Ash to use bathrooms based on sex on birth certificate. A green wristband would indicate that wearers are trans. The district and school wants to be able to monitor trans students and their bathroom use. The wristband reveals their trans identity to everyone.

A green wristband to identify trans students. The comparison is obvious and even if this is not a nationwide trend, it is deeply troubling. Whitaker and his mother have filed a Title IX lawsuit against the district. Also, this case serves as an example of the power of visibility. The Whitaker family was inspired to take action (there were other issues in addition to bathrooms) when they read about Gavin Grimm's case in Virginia.

Better news in South Carolina where a trans student, after OCR found her school district in violation of Title IX, is being allowed to use the girls' room in accordance to her gender of identity. The district engaged in a voluntary resolution of the complaint.

It is hard to take up the fight against discriminatory practices because often they lead to additional discrimination and backlash. It is more difficult in some areas and states than others. We live in Massachusetts where last week the legislature passed anti-discrimination legislation allowing trans people to use public restrooms and locker rooms in accordance with their gender identity. Yay Massachusetts! This does not mean, of course, that discrimination will cease. But an anti-discrimination measure has the backing of the state and that is hopeful. It goes into effect this fall.

Not Title IX related and not trans related (though potential implications) but too important to go without mention: Caster Semenya, who was subject to a disgraceful and malicious inspection of her gender in 2009 and then cleared to compete the following year, is competing in Rio this summer and is a favorite to win the 800 and also is a contender in the 400. But her participation is not without controversy, sadly. Again, despite being given the OK to compete in the field she has always competed in 6 years ago, some people are still worried about things being fair. Marathoner Paula Radcliffe--who does not compete against Semenya--is suspect of Semenya's participation and believes it is not sport when it is presumed that Semenya will win the gold. I guess gymnastics is going to suffer then given that Simone Biles is the presumptive all-around winner next month. Also Semenya, who won silver in 2012, is benefiting from the banning of the Russian team from track and field. Gold went to a Russian in London.

Her other fear is that so-called normal women will be pushed out of the sport when people to go areas of the world with higher occurrences of hyperandrogenism, which is the condition Semenya is believed to have. (In a rare moment of actually protecting her privacy, the results of her tests were not released.) One, athletes are recruited for specific physical traits all the time. Two, high testosterone levels are no guarantee of a specific performance outcome given that testosterone receptors are all over the body and perform different functions. Three, I could find distribution rates of intersex conditions. (They could exist, of course.)

Minot State Ignored Sexual Assault By Professor, OCR Finds

The Department of Education's Office for Civil Rights announced yesterday that it has reached a resolution agreement with Minot State University in North Dakota after finding that the institution violated Title IX in its response to reports of sexual assault. In particular, the university did not investigate or address a complaint made by a former student that she had been sexually assaulted by a professor for over two years. In addition, OCR's investigation found that overall only one of four complaints of sexual harassment reported to campus security officers actually led to a campus Title IX investigation.

My impression is that Minot State's violations of Title IX are among the most egregious findings that OCR has made in recent years. As opposed to procedural and policy violations of Title IX that have been found in other cases (e.g., here, here, and here), here the university outright ignored an egregious complaint. It is easy to imagine the injury this caused to to the reporting former student, as well as the significant risk to other students that the university created when it decided not to act. In combination with the pattern of under-investigating complaints made to campus security, it is clear that the university's policies and practices contributed to students' risk of sexual assault.

Under the resolution agreement with OCR, the university is obligated to provide counseling and other support that would address any emotional, psychological, academic, or employment issues" faced by the complaining student as a result of the university’s delay in processing her complaint.  Additionally, the university must develop a procedure to document sexual assault and harassment complaints it receives, strengthen coordination between the campus police and Title IX coordinator, enhance its grievance procedures, and submit to ongoing monitoring by the OCR.

Government Sides With Plaintiff in Case that Tests Title IX's Application to Off-Campus Sexual Assault

Recently, the federal government sided with two Title IX plaintiffs in ongoing litigation against Kansas State University that challenges the institution's failure to respond to reports of sexual assault committed at off-campus fraternity houses.

The federal court's eventual decision in two pending cases will address an important issues of Title IX's scope. So it is noteworthy that the Department of Justice and the Department of Education submitted amicus briefs to challenge the university's contention that its obligations under Title IX do not apply to off-campus conduct.  The government argues that when Title IX uses the word "programs" in describing the statute's reach, it includes the house and events of a school-recognized fraternity, just like it applies to other off-campus activities like study-abroad programs and extracurricular activities that are still subject to the university's control. Moreover, the government argues that the university itself claims that its fraternities are part of the university in its marketing to prospective students, and exerts the requisite "substantial control" to prevent and respond to sexual assault that occurs at fraternities, in that the accused are students who are subject to the university disciplinary process and the fraternity itself relies on the university for ongoing recognition. In fact, the university demonstrates this control by sanctioning the accused student for alcohol violations, but not rape.

Clearly the government is watching this case closely, as we are as well.

Settlement at Tennessee

News broke this morning that there will be no trial (originally scheduled for spring 2018) in the Title IX lawsuit against the University of Tennessee. UT will pay just under $2.5 million to the eight women who brought the lawsuit.

As is the case in most settlements, the university admits no wrongdoing. Money for the settlement will be drawn from both central administration and athletics. Stories suggest that no taxpayer money will be used, but at a state university I wonder how easy it is to keep it all separated.

From the plantiffs' lawyer:
We are satisfied that, while universities everywhere struggle with these issues, the University of Tennessee has made significant progress in the way they educate and respond to sexual assault cases. My clients and I are also convinced that the University's leadership is truly committed to continue its exemplary efforts to create a model as it relates to sexual misconduct.

From UT Chancellor Jimmy Cheek:
Like many institutions, we are not perfect, but our goal is to continue to be the best we can be at creating awareness, educating and preventing discrimination and abuse in any form and to continue to be equally prepared when it does happen and to deal with it promptly, sensitively, fairly and effectively. We've come a long way in recent years, and we are working every day to be even better.

No one listed the measures UT has taken to ensure that Title IX is being correctly and effectively implemented.

ESPN has a list of the specific incidents here. But as a reminder, these date back to the mid-90s and involved UT athletes who were either not investigated or not punished for sexual assault.

As a wrap-up, I want to note the trends or similarities that these charges have with other cases we have covered.
1. Athletes have special protections. These manifested in the following ways in this case: not being investigated; found guilty but not punished or lightly punished; other entities intimidating victims discouraging them from filing complaints or charges (in this case it was teammates of perpetrators).

2. Passing the buck: In at least one case at UT, an offending athlete was found guilty, allowed to finish out his season and then transfer. Remember, the SEC passed a rule that prevents member schools from accepting transfer athletes who have histories of sexual assault. Apparently, they have no issue sending those students to non-SEC schools.

3. Female athletes as victims. Because tracking the intricacies of sexual assault is difficult--at best, we don't know how many perpetrators are athletes nor do we know are many victims are athletes and at what level they play. But UT is not the first time we have heard about male athletes at DI institutions assaulting female athletes with few repercussions (Missouri, Iowa, New Mexico). Keeping things in the "family" (i.e., athletics department) clearly has serious negative consequences. Female athletes are pressured not to report assaults; they are told things will be handled internally. In this case, that pressure was also exerted on a male athlete who attempted to come to the defense of one of the victims and was assaulted and called a traitor by Coach Butch Jones (Jones denies this.).