Agreements reached...

...in Portland, Maine where an investigation by OCR found that girls received fewer opportunities for participation in interscholastic sports than their male peers. The investigation also revealed some disparities in facilities. Under the agreement, the district will add girls' volleyball for the 2014-15 season and ensure equitable locker rooms, practice and competitive facilities. Administrators will also begin a process of assessing whether the district meets either prong one (proportionality) or prong three (interest) in determining the sport opportunities girls in Portland's schools receive.

...in the Union County (South Carolina) School District. Interestingly chairperson of the school board BJ McMorris announced at a meeting last week that OCR found no merit to a complaint filed in December 2012. Curious announcement given that a voluntary resolution agreement would not seem necessary for a complaint with no merit. Sure, some things will be improved, the public was told at last week's meeting, but nothing was ever really wrong was the message (along with a little passing of the buck--see below).
One of the issues with the resolution agreement process is the "no fault" aspect. Whatever semantic dance administrators--at all levels--are doing, an agreement means something was wrong that needs to be fixed.
What happened in South Carolina was that one part of the complaint in which the complainant argued that there were gender-based differences in punishments meted out to student-athletes was found to have no merit. Other aspects of the complaint and the OCR investigation did not, however, find Union County to be in tip-top Title IX shape.
Superintendent Kristi Woodall said she felt bad for the taxpayers who have to foot the bill for the work the district had to do compiling documents and otherwise accomodating OCR during the investigation. It was a throw-OCR-under-the-bus move. There have been plenty of times that OCR does not invesitgate a complaint because it does not seem to have merit.
Woodall is blaming OCR for doing its job and not taking any responsibility for its own non-compliance.
But OCR fired back seemingly immediately after the above-linked article was published in the local newspaper. A letter to the paper (which also bears some responsibility for not questioning a resolution to an proclaimed non-situation) included this statement:
“...OCR’s investigation determined that the district failed to provide female athletes equal opportunities with respect to: equitable facilities, including practice and competitive softball fields; strength training facilities and locker rooms; laundering of uniforms; pregame meals; scheduling and number of games; and maintenance of uniforms.
On Sept. 24, 2013, the district signed a Resolution Agreement to address these Title IX compliance concerns. OCR expects to issue a letter of findings, with accompanying Resolution Agreement, by the end of this week.”

...in Gloversville, New York after a January 2011 complaint triggered an OCR investigation. This is another case of spinning the situation with the superintendent of the Gloversville Enlarged School District saying that OCR found nothing wrong but that the district would be making some improvements. A project in which many of the district's fields and facilities were renovated dealt with some of the issues raised in the complaint, but the district will still be required to: schedule some girls' softball games on the lighted fields, fix the drainage on the softball fields, and make sure that a shared field is properly prepared for each respective sport that uses it.

Straight Talk from Rutgers AD on NCAA Stipend Proposal

Rutgers University Athletic Director Julie Hermann was interviewed in the local press about the challenges of helping college athletes cover the true cost of education.  Last year, the NCAA voted to allow Division I institutions to award $2000 cost-of-living stipends to those athletes already receiving a full scholarship, to cover the kind of incidentals outside of tuition, room and board.  The plan was later rescinded but the concept is still under consideration.  

As Hermann notes, the original stipend plan was inequitable from the start in terms of gender, given that far more male athletes (those in so-called "headcount sports") than female receive full scholarships and would be eligible for the stipend.  Counting the scholarships awarded in the headcount sports of men's football and basketball, Hermann notes, " you have $200,000 you can now award to your men, which is great. But that only gives you $60,000 that you can award on the women’s side [in volleyball and basketball]. You’re automatically $140,000 off.”

There's not an obvious fix, it seems.  Simply expanding eligibility to include equivalency sports, Hermann explains, would tremendously increase the total cost to institutions of funding the stipend.  People view the stipends as a way to share the profits with the athletes whose efforts generate those funds.  But most university athletic departments, even those with football programs, are not profiting on athletics.  Hermann notes that many football programs don't even turn a profit.  So the money for the stipends is coming from the university (tuition) or elsewhere in the athletics budget. So the possible consequence is that universities will cut equivalency sports in order to be able to pay out stipends to everyone else -- something Hermann doesn't want to see. 

Another challenge with the stipends, it appears, is that there's some evidence suggesting the students who received them didn't spend them as intended: "They’re buying a $500 pair of jeans that you and I don’t spend money on. So yes we could make them a card, but you have to teach them financial management. We’re trying to feed and clothe you, give you everything you need (via the stipend), but we’re not trying to make you into fashionistas."

Hermann's right that there's no easy answer to the fundamental questions of fairness that underlie this issue.  It's good to know that athletic directors like Hermann are cognizant of the gender equity implications as well as the potential implications for equivalency sports. Her remarks suggest that for most schools, stipends are not the answer, and will only drive an additional wedge between athletes in some sports that happen to be  popular with the public and others that are not.  It's becoming increasingly difficult to imagine an NCAA that governs the handful of profit-earning institutions along with everybody else.

Occidental College Settles With Sexual Assault Complainants

Occidental College will reportedly pay an undisclosed sum to settle with students and faculty who have complained to the Department of Education that the College failed to properly handle their complaints of sexual assault.  The complaint against Occidental was one of several filed last spring as part of a coordinated student campaign to promote enforcement of Title IX and the Campus SaVE Act. 

The settlement is confidential, so not much is known about its terms, other than that those bound by the settlement have agreed to not speak publicly about it.  I suspect that what the College has really paid for is the promise by the parties not to file a lawsuit for damages against the school. Public enforcement unaffected by a settlement between parties, so it was unsurprising to read that the Department of Education's investigation remains ongoing.

ACLU Files Complaint in Bathroom Bias Case

Here is an update on the transgender bathroom case in Florida that we blogged about last month.   The ACLU has recently filed a complaint with the Department of Education challenging the Pinellas Tehnical Education Center's decision to exclude a transgender woman student from the women's bathroom.  This complaint came on the heels of a demand letter sent to the Center, which the Center has apparently ignored.  The complaint succintly summarizes why the discrimination against their client constitutes sex discrimination under Title IX:

Requiring Alex to use separate restrooms than those used by other students constitutes sex discrimination in violation of Title IX. First, it is per se sex discrimination because the differential treatment is based on her gender identity. Macy v. Holder, 2012 WL 1435995, at *6 (E.E.O.C. Apr. 20, 2012) (“Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex . . . .”). It is further per se sex discrimination because the treatment is based on her gender transition. See Schroer v. Billington, 577 F. Supp. 2d 293, 308 (D.D.C..2008) (discrimination based on plaintiff’s plan to undergo transition “was literally discrimination ‘because of . . . sex’” under Title VII) (alterations in original). Finally, this treatment is unlawful sex stereotyping because Alex is being treated differently based on her failure to conform to gender stereotypes—PTEC does not consider her sufficiently feminine to use the women’s restrooms. See Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (“[D]iscrimination against a transgender individual because of her gender-nonconformity is sex discrimination.”).

District of Columbia considering mandatory reporting

Research has shown that girls in urban communities have far fewer athletic opportunities that their suburban counterparts as well as their male peers. The Women's Sports Foundation has focused some of its programs on this issue in an attempt to close the gap. These programs are aimed largely at organizations and activities outside of the schools (after school programs, recreational sports). But now, recognizing the Title IX implications (the two complaints--one from the National Women's Law Center--might have helped raise some awareness!) of the disparity as they manifest in the schools, the DC Council is proposing a bill that would require the reporting of equity data by all elementary, charter, middle and high schools in the district. And it does not just call for reporting participation numbers. Schools would also have to report how much they spend on sports, the quality of equipment, and availability of facilities for boys' and girls' sports respectively.
A similar piece of legislation was proposed several years ago (prior to the two complaints), but did not pass. Currently, 5 out of the 13 council members are supporting the bill. 

ACLU Presses Florida Technical College to Let Transgender Student Use Women's Bathroom

The ACLU has gone to bat for a transgender woman nursing student at the Pinellas (Florida) Technical Education Center who has been denied access to the women's bathroom, by issuing a letter demanding that they restore her right to access the same facilities as other female students.  The ACLU's client, Alex Wilson, identifies and presents as female, and is listed as female on her drivers license and Social Security card.  Additionally, she had undergone hormone therapy for four years.  She had up until this summer used the women's bathrooms at PTEC without incident, but was barred access by school officials after they discovered that she is transgender.  Since then, Wilson has been offered various bathroom alternatives, such as single stall toilet the "storage area" of a separate building, or the men's faculty restroom for which she would need to ask for a key, but none are as convenient or accessible as the women's room would be. Nor do those alternatives afford the same degree of dignity and respect for her female identity.

The ACLU's letter explains that the failure to treat transgender women in a similar manner to non-transgender women is a form of sex discrimination, which is prohibited by Title IX.  The letter cites legal authority from the employment context, including a 2012 decision by the federal Equal Employment Opportunity Commission recognizing that a transgender gender identity could not be the basis for singling people out for different treatment.  In addition to demanding Wilson's access to gender-specific aspects of the nursing program, including the women's bathroom, the ACLU letter encourages PTEC to adopt GLSEN's model policy for inclusion.

The letter does not include an express threat of litigation.  But that would be the likely outcome in the event that PTEC failed to honor the ACLU's request on behalf of Wilson.

Massachusetts School District Enters Voluntary Resolution Agreement

Framingham (Massachusetts) Public Schools has reportedly entered into a voluntary resolution agreement with the Office for Civil Rights, obligating itself to “promptly and equitably” address complaints of sexual harassment and sexual assault in the future, and to strengthen its policies and staff training around those issues.  As we have earlier noted on the blog, Framingham schools were the subject of a Title IX complaint and subsequent federal investigation over complaints that school officials took it easy on a male student-athlete accused of sexually assaulting two female students. 

Under the agreement, the school district has until October 1 to add the name and contact information for the district's Title IX Coordinator to its website and student and employee handbooks, to instruct staff and faculty to report incidents of sexual harassment that come to their attention, and to communicate to students and parents the school's policy defining, prohibiting, and outlining the consequences for sexual harassment.  It must also establish a memorandum of understanding with the local police that clarifies the school district's independent obligation to address matters of sexual assault involving students, and by June, establish a plan to track and handle complaints of sexual harassment and assault. 

California Passes Transgender Rights Law for Students

On Tuesday, California Governor Jerry Brown signed into law A.B. 1266, the School Success and Opportunity Act, which requires public schools in that state to respect a student's gender identity for purposes of all activities, including sports participation, and facilities like restrooms and locker rooms.  California is the first state to pass such a law, though Massachusetts, Colorado, and Maine have regulatory policies that require schools to allow students to participate in single-sex programs or use single-sex spaces according to their gender identity, regardless of their sex assigned at birth.

California's law provides important protection to transgender students, who may otherwise be treated differently from other students with the same gender identity, simply because their gender identity is at odds with their birth sex. Arguably, such discrimination is a subset of sex discrimination that is prohibited by Title IX. A recent settlement negotiated by the Department of Education's Office for Civil Rights suggests that the government may be interpreting Title IX to require schools to regard students in the manner of their gender identities would help clarify this obligation across the states.  But until the Department of Education or the courts clarify that Title IX applies to transgender students who want to be treated just like other members of their affirmed sex, state-level protection like California's will provide the strongest, clearest mandate for the full inclusion of transgender students.

Nine for IX, Part III: The Biographies

The middle of the ESPN's Nine for IX series is comprised of biographies of individual athletes. In this post I discuss films 4 and 5 which feature two very different athletes: former collegiate and professional basketball player Sheryl Swoopes; and freediver Audrey Mestre. The former is the more well-known, but the story--which I watched twice--of the latter, whom I had never heard of, left me with a feeling of discord/agitation.
Regarding the former, though, Swoopes left me a feeling of "eh." Choosing Swoopes as a sole feature for one of the films in the series might not have been the best idea given the rather lackluster film that emerged. I would rather have seen a film about the initial start of the WNBA and its central figures--both players and administrators, which was the most interesting part of Swoopes, in my opinion.  Though she was, at least briefly, the female Michael Jordan (in part because of her deal with Nike that included her own shoe!), even the documentary pointed out that she was not the sole face of the then brand new WNBA. And, as was proven when she was out on maternity leave during the first season of the league, she was not unequivocally the best player in the league.
There were a lot of potentially interesting moments in the documentary, but--as has been the case with the films in this series--they remain unexplored. For example, the fact that Swoopes went broke. Athletes mismanaging their earnings is an under-discussed issue. Is it a personality issue? A cultural issue (i.e., is there something about sports and the potential for high financial rewards that leads to over-spending)? I appreciated the more in-depth look at her role as a mother; something that went beyond just posing pregnant for the now-defunct Sports Illustrated for Women. I very much disliked the white, male sports writer who continually disparaged Swoopes during the film referring to her as a diva. Not sure why the director and producers felt his comments were essential to the film. I appreciated the lack of sensationalism around her sexuality. But in the end, Swoopes herself didn't come off as an especially interesting or poignant character, and though she just got a job coaching collegiate basketball and is engaged to be married, she came off as kind of a sad figure who has not dealt well with her post-playing life.
More than sad--devastating really--was the story of French freediver Audrey Mestre who was featured in No Limits. I very much appreciated the the executive producers of Nine for IX chose a more non-traditional sport. But I question the place of this film, this story, in the series. No Limits is about the death of Mestre during her attempt at a record-breaking free dive (a sled-assisted descent into deep waters done without air tanks). Mestre died trying to break the record of another female freedriver, Tanya Streeter, who was interviewed for the film, when the air bag that was supposed to whip her back to the surface did not inflate (empty canister). Though I had not heard of Mestre's story, it was already the focus of considerable media attention, including a feature story in Sports Illustrated, a book by one of her husband's former business partners, and another documentary about freediving. The story is really about Mestre's husband, Pipin Ferreras, who is seemingly responsible for her death as he was in charge of all the safety measures, including making sure that the canister is filled--and their relationship.
There was minimal questioning of the involved parties after Mestre's death and no investigation because, in the Dominican Republic where the dive was staged, an investigation only occurs when a member of the immediate family requests one. Still Ferreras has been subject to scrutiny within the freediving community and the sports world. Some accuse him of outright murder, some of manslaughter due to negligence but nearly everyone agrees he is, at best, a narcissist who may have had troubles with the fact that his wife was becoming a more successful freediver than he was (he had mostly stopped diving because he kept passing out).
The evidence is disturbing. The whole film was disturbing (which we were warned about in the opening credits as the directors showed scenes of the dive when Mestre was pulled from the water unconscious). I was left wondering what the point of this film was. It was not a beautiful tribute. It was not an exploration of a little-known sport. It seemed to merely reiterate the Sports Illustrated story while adding a few more characters to the story. It felt somewhat sensationalistic and I felt like a voyeur watching it.
I think this is part because, again, issues were raised but left unexplored. Let's talk about domestic abuse, which could have been part of this relationship--especially mental abuse. Let's talk about unhealthy male coach-female athlete relationships which still do not receive enough attention. In so many ways this story mirrors that of other female athletes (who fortunately have not died) who have been trained by abusive, narcissistic male coaches who continue to go unpunished.
The series keeps stopping just short of doing something; of getting people talking about real issues. In the other films where this has occurred I find it more of an annoyance and a valid critique of the individual film. In the case of No Limits, I think this failing has moral implications that the directors and the series producers have not considered. They used graphic footage of a woman dying, used the voices of others to suggest that her husband is responsible for her death, and then cut to credits.

Settlement in Indiana bullying case

The story and case of Darnell "Dynasty" Young was one that we have not covered. Young was expelled for bringing a stun gun to school as a form of protection against students who were harassing him because of his gender expression and sexual orientation. Young, now 18, filed a lawsuit in August 2012 against the school district alleging that it did not do enough to protect him against the harassment. Young was harassed because he sometimes chose to wear accessories and clothing that were deemed more feminine (but within the school's dress code). School officials to whom Young reported the harassment told him he was bringing it on himself through his sartorial choices and that he should try to be less flamboyant. The settlement, announced in early July and subject to a judge's approval, includes $65,000 to Young as well as the erasure of Young's expulsion from all his records. Young is starting college this fall and said the money will go towards starting an anti-bullying magazine. He also plans on speaking about bullying in various Indiana schools and would like to start an anti-bullying campaign when he finishes college.

Another Male Student Files Title IX Case Over Sexual Assault Grievance Proceeding

After blogging about a similar case against St. Joseph's University, we've learned of another male student, accused of rape, who has filed a Title IX case against his university to challenge the grievance proceeding that lead to his expulsion. Peter Yu's complaint against Vassar College describes a consensual sexual encounter that later resulted in allegations of rape against him. He argues that the grievance proceeding used to find him guilty was procedurally flawed by the denial the effective assistance of any advisor, the opportunity to cross-examine his accuser, and the opportunity to call other witnesses.  He also argues that the panel that conducted his hearing was biased against him, in that it was made up entirely of faculty members and did not include a student, and that those faculty members were all colleagues of the accuser's father, a Vassar professor.

Inside Higher Ed is covering these cases, and reporter Allie Grasgreen asked me to speculate on how plaintiffs like Yu and Harris might prevail under Title IX.  I said that I thought it would be difficult for either one to demonstrate that the university was discriminating against them because of sex, as the statute requires.  Neither one is likely to have access to evidence amounting to a smoking gun, like a university official admitting to rigging the process out of disdain for men. Nor is likely they could create an inference of such intent by, for example, arguing that male students accused of rape are treated differently from female students accused of rape (because there are not likely many examples of the latter category).

Title IX plaintiffs may alternatively use the disparate impact framework, rather than having to prove that university officials were biased against men.  A disparate impact claim requires the plaintiff to show that the university's otherwise-neutral policy or practice adversely affects men in some statistically significant way. This seems to be the route Yu's lawyers are pursuing, given their arguments that "Vassar’s guidelines and regulations are set up to disproportionately affect the male student population of the Vassar College community as a result of the higher incidence of female complainants of sexual misconduct against male complainants of sexual misconduct" and that "male respondents in sexual misconduct cases at Vassar College are ...invariably found guilty, regardless of the evidence, or lack thereof."  But this too will be a difficult argument to pursue, as it requires the plaintiff to show not only that male students are overwhelmingly found guilty, but falsely so.  The amount and type of evidence that would be necessary to make that showing would be very difficult to acquire.

But just because Title IX is a difficult cause of action for male plaintiffs to sustain in these cases, doesn't mean that men are without recourse when falsely accused.  Vassar's policy that governs disciplinary hearings is effectively a contract with its students.  To this end, Yu's complaint contains a breach of contract claim as well as others like negligence and unfair and deceptive practices.  I suspect that if he prevails in this litigation, it will be on one of these claims.

Campus SaVE Act Codifies Institutions' Sexual Assault Response Requirements

As I posted yesterday, I just attended the annual conference of the Association of Title IX Administrators, an organization doing good work to empower Title IX coordinators and other college, university, and K-12 officials with information and strategies for compliance and best practices. One of the most valuable sessions for me was the one focused on the recent congressional amendments to the Clery Act (see part f), the statute that requires post-secondary institutions that participate in federal financial aid programs to report statistics on various campus crime, including sexual assault. While the Clery Act is a distinct statute from Title IX, the overlap and interrelation between the two warrants ATIXA's focus as well as the focus of this blog.  

The amendments, collectively known as the Campus Sexual Violence Elimination Act (Campus SaVE Act), were passed as part of Congress's reauthorization of the Violence Against Women Act earlier this year.  Campus SaVE adds new crimes to the list of those which, under Clery, must be tallied and reported to the government in annual security reports (ASRs). In addition to statistics on sex offenses, both forcible and non-forcible, that must already be reported, ASRs must now include data on occurrences of domestic violence, dating violence and stalking.  Campus SaVE also requires institutions to report on their policies and procedures designed to prevent and address sexual assault and other intimate partner violence.  These policies must include provisions regarding the institution's obligation to notify victims of their rights to report and pursue relief from local law enforcement, as well as to provide information about available campus resources and possible accommodations.  Institutions' disciplinary procedures used to address accusations of sexual assault/violence must include specific provisions meant to equalize the playing field between accused and accuser, such as the accuser's right to request prompt proceedings, the right of both parties to be accompanied by an advisor and to present testimony, and the right of both parties to be informed of the proceeding's final results.  Institutions must also report to the government what efforts they undertake to prevent campus sexual violence, specifically including programs aimed at primary prevention (i.e., stopping rape and violence before it occurs) that extend beyond risk reduction (e.g., telling female students not to walk alone at night or leave their drinks unattended at a party).  The efforts described must also include information on bystander intervention and a clear definition of consent. 

  

In many ways, the new requirements under Campus SaVE echo the compliance steps OCR laid out in its 2011 Dear Colleague letter containing its interpretation of how Title IX requires colleges and universities to prevent and address sexual violence.  But, as the ATIXA presenters explained, it is significant that these requirements now appear as part of a congressional statute. Unlike agency policy, which can change with the next presidential administration, statutes can only be amended by a majority vote of Congress.  Moreover, as a part of the Clery Act, the Campus SaVE provisions are likely to have more teeth, since Clery authorizes the Justice Department to issue fines for noncompliance.  In contrast, OCR’s primary weapon in Title IX enforcement—revocation of federal funds—is a gun too big to use, which as a result has never been fired.  Title IX violations are thus often remedied by nothing more than a promise to do better, while Clery Act fines are serious business (hello Yale) that are likely to operate as a stronger deterrent to noncompliance.       

  

ATIXA's presentation on these requirements provided straight talk to educational administrators about compliance.  This is not an organization devoted to finding loopholes and helping institutional members get away with minimal compliance.  Yes, ATIXA presenters kvetched about the many ways in which these new requirements are not college and university-friendly.  But part of their message was that government intervention—whether in the form of congressional statute, or a steady stream of new Dear Colleague Letters from the OCR—is the price institutions pay for their past attitudes of minimalism and avoidance.  The underlying message, tailored to the audience of university administrators, was: you can look for loopholes, and play roulette with enforcement; but if you want the government to back off and trust you, start doing the right thing.  Imbue your compliance efforts with the primary motivation of actually helping to report, investigate, address, and prevent sexual assault and other gender-motivated crime.  Do what’s right for students, for their sakes, and at the same time, you'll be doing what's right for the sake of avoiding liability and noncompliance.

Know Your IX Addresses ATIXA Conference

I am headed home from Napa, California, where I've spent the last couple days attending and presenting at the annual conference of the Association of Title IX Administrators (ATIXA).  It's been an amazing conference.  I've learned so much--from the opening keynote speaker, Emily Bazelon, journalist and author of a new book about bullying, to panels on Clery and Campus SaVE Act compliance (more in a future post) (presented by ATIXA attorneys), decriminalizing university responses to sexual assault (Nancy Chi Cantalupo), and sticky issues when harassment and assault occur off-campus or involve third-parties (Joni Baker).  But I think the show-stoppers were Alexandra Brodsky and Dana Bolger, two student leaders in the Know Your IX campaign, who were our closing keynote today.  Know Your IX is informing and supporting students across the country addressing campus sexual assault.  Students associated with Know Your IX have been involved in several of the high-profile complaints to OCR about various colleges insufficient responses to sexual assault.

I liked many things about Brodsky and Bolger's presentation.  First, by chance, they happened to be speaking to us within hours of a major milestone for Know Your IX, the launching of their excellent website.  One issue we conference attendees had been discussing was the importance of conveying clear information to students about victims rights and resources.  Colleges and universities have a knack for putting information on websites that are counterintuititve and difficult to navigate.  It was terrific to see in their website an example of clear and straightforward dissemination of this kind of information.

Another thing I liked was their insistence that when we talk about sexual assault on college campuses, we actually talk about the culture of sexism that creates the environment for it to happen.  Brodsky, who is from Yale, gave the now well-known examples of the sexist fraternity chants ("no means yes...") to illustrate the point that a culture of sexism is the basis for a culture of assault.  Rape prevention, therefore, isn't just a matter of telling girls to use the buddy system and guard their drinks at parties.  It's about addressing---and changing--a culture that allows women to be demeaned and objectified.

Lastly, I appreciated their acknowledgment that Know Your IX is not representative of female student survivors of, and those who are threatened by, sexual assault.  They were keenly aware that the white, straight, and economically privileged public face on the recent efforts to challenge university's failures to address sexual assault runs the risk of rendering invisible sexual assault that affects women of color, queer women, or that occurs on less prestigious campuses. The fact that the Know Your IX website addresses intersectionality head on, with sections on "dealing with intramovement racism" as well as sections for religious survivors and those likely to confront homophobia as survivors, is a good first step towards ensuring Know Your IX becomes a meaningful resource for, and movement of, diverse women.

ATIXA did well to close the conference with the perspective of students whose lives have been affected  by sexual assault and whose activism is changing the landscape of Title IX compliance. I am already looking forward to next year's conference!

Student Denied Leave for Childbirth Files Complaint Against College

A student at Logan College of Chiropractic/University Programs in Missouri has filed a complaint against the school, alleging that it violated Title IX when it refused to recognize childbirth as an excused absence.  Brandi Kostl emailed her dean from the hospital about anticipated upcoming absences as she was about to undergo an emergency Cesarean section. The dean replied with reference to the college and faculty member's attendance policies, under which childbirth is not excused.  As a result, Kostl returned to school after 11 days, before she was fully healed, in order to minimize the academic penalty against her.  Even still, she ended up receiving an F in two classes. 

Kostl and her attorneys at the National Women's Law Center argue that the college's failure to accommodate her absence for childbirth violates the Department of Education's Title IX regulations, specifically, 34 C.F.R. 106.40(b)(5), which provides:

 a recipient shall treat ...childbirth as a justification for a leave of absence for so long a period as is deemed medically necessary by the student’s physician, at the conclusion of which the student shall be reinstated to the status which she held when the leave began.

NWLC filed a similar complaint earlier this year on behalf of another student who had a similar experience at a CUNY school.  That complaint resulted in a settlement favorable to the student.   

Nine for IX, Part II: Female reporters in the locker room

I have to admit that I was not particularly looking forward to the third film in ESPN's Nine for IX series, Let Them Wear Towels. But I enjoyed it overall. I was expecting a more narrow view of the issue of female reporters in the locker room; one that addressed the stories many of us already know--those key cases such as Lisa Olson's story about sexual harassment in the locker room of the New England Patriots (which was mentioned but was just one piece). But there were more than a handful of women who discussed their experiences being the first or second female reporter to cover a team or a league and their difficulties with access.
One of the women featured is Claire Smith, who was the first African-American female sportswriter for the New York Times. The documentary noted this but issues she faced because of her race and how that affected her ability to do her job were not discussed. It was a purely gendered consideration of her history as a female reporter covering men's sports. 
The historical footage was well edited into the movie. There are shots of the women doing their job in the press box (which was also off limits to many of them for a long time, the film reminds us) and in the locker room. (They re-enactments were unnecessary in my opinion.) The historical context was also fairly well covered (i.e., women's movement, women's entry into previously all-male spaces and domains).
 The movie certainly presents a sense of progress. And, unfortunately, this notion is not troubled at all. The level of hostility towards female reporters, even after they received access, was presented to show the audience what women faced. But being interviewed are the women who choose to stay and deal with that hostility. How many more decided the harassment and the attention was just not worth it? Access is just a first step. At the very end of the documentary, the access versus attitude issue is discussed, using the Lisa Olson case as the lens through which to examine this.
And hostility about women's involvement in sports remains--it just looks different. Many of the reporters in the documentary have kept all the hate mail they received. People don't take time to sit down a write a letter so much anymore to tell a woman who covers or plays sports that she is a whore, a lesbian, a harlot; they do take to the internet though making comments on articles, on blogs, and on social media like Twitter.
Technology is also an issue that doesn't receive much attention amidst the progress narrative. At the very end one of the women mentions that, yes, they did get access to the locker room, but no women have access to the analyst booth as a montage of male commentators is shown. The issue of where female reporters are in the age of changing media is not covered. It was likely outside the purview of this historical film, but we need to have more discussions about what it means that so many sideline reporters today are young, traditionally pretty women.
What is progress? What is access? What is acceptance?
I wonder if these are the questions that will keep emerging during the rest of the series or if any of other films will ask them a little more explicitly.

Sexual Harassment Roundup

Here is a summary of some of this month's decisions in Title IX cases involving sexual harassment in assault:

A student who was sexually assaulted at Duke appealed the lower court's dismissal of her case, which we had earlier blogged about here.  The Fourth Circuit Court of Appeals affirmed the lower court's ruling because most of the events which constituted her claim of deliberate indifference, including the university's meager investigation of the assault, took place more than three years before the student filed her lawsuit against the school.  Accordingly, Duke was protected by North Carolina's 3-year statute of limitations. Rouse v. Duke University, 2013 WL 3828308(4th Cir. July 25, 2013).

A federal district court in Michigan denied a school district's motion for summary judgment in a case involving claims that a mentally disabled student was sexually assaulted ("kissing and groping") by a paraeducator. The court reasoned that a factual dispute regarding whether the student's parent reported this to school officials required a jury to resolve.  Griffin v. Sanders, 2013 WL 3788826 (E.D. Mich. July 19, 2013).

A teacher claimed he was fired in retaliation for reporting sexual harassment behavior of a colleague, as well as relaying a student's report that she was receiving inappropriate text messages from her coach.  The school district argued, in turn, that it fired the teacher for legitimate reasons, including his use of profanity in the classroom and with parents, and an incident in which he brought a student to a bar and consumed alcohol in the student's presence.  The district court found that there was no evidence showing that there was a causal relationship between the teacher's reports of sexual harassment/misconduct and the school district's decision to fire him, which occurred several months apart. Bianca v. Independent School District No. 1 of Tulsa County, 2013 WL 3762895 (N.D. Okla. July 16, 2013).

After a female eighth-grader was raped in the bathroom by her male classmate, her guardian brought a lawsuit on her behalf, claiming that the school district was liable under Title IX, as well as other claims.  The assailant had been soliciting girls for sex, and when he solicited the plaintiff, she reported it to a teacher's aid.  The aid told her to meet the student in the bathroom, as he had requested, where she and other school officials would arrive to "catch him in the act" before anything happened.  The student agreed, and met the assailant in the bathroom.  Unfortunately, school officials arrived too late; a rape had already occurred.  A federal district court in Alabama determined that the school district was not liable under Title IX on these facts.  First, the school district did not have actual knowledge that the assailant posed a risk of sexual assault to the plaintiff, despite the fact that he had been disciplined many times before, including for incidents including sexual misconduct.  The court reasoned, however, that none of those prior incidents were severe enough to constitute notice of his propensity to rape. Next, the court held that the assistant principle, who was notified of the teacher's aid proposed "sting" operation before it was carried out, and who did nothing to stop it, did not have actual notice of conduct severe enough to trigger liability under Title IX.  According to the court, the plaintiff's evidence only showed that the assistant principle had knowledge of a single incident of harassment, i.e., the assailant's proposition of sex. "Indeed, as far as Dunaway [the assistant principal] knew, BHJ [the victim] agreed to the plan and was participating in it freely in order to catch CJC [the assailant]. Regardless of how foolish and perhaps even negligent this plan may have been, there never was an intent to subject BHJ to sexual harassment or assault, or even deliberate indifference to her plight."  To me this seems like an exceedingly narrow reading of what it means to act in deliberate indifference.  A school official knew that a student was reporting to the bathroom, not to have consensual sex, but in order to catch a student who wanted to have sex with her, and did nothing to stop it.  I don't see how this allegation doesn't at least warrant a trial on whether it constitutes deliberate indifference.  At least the court retained the plaintiff's claim that school officials responded negligently to knowledge that the teacher's aid had convinced the victim to let them try to catch the assailant.  A jury could award damages to the plaintiff based on that.  Hill v. Madison County Sch. Dist., 2013 WL 3712330 (N.D. Ala. July 12, 2013).

A federal district court in New York dismissed Title IX claims filed in a case involving incidents of alleged sexual abuse by one Ernest H. Lorch, deceased, occurring during the period of January 1, 1975 through December 31, 1984, when plaintiffs were members of the church-run basketball program coached  by Lorch.  Oddly, though, the court did not dismiss the Title IX claims for reasons you'd expect -- that a church-run basketball program is not an educational institutional subject to Title IX.  Rather, it dismissed the Title IX claim because the plaintiffs have not "plead any facts establishing that they were targeted for sexual abuse based on their race, other than the conclusory assertion that all three Plaintiffs are African American and Mr. Lorch is Caucasian. As such, Plaintiffs' have failed to adequately allege a claim under Title IX, and Defendants' Motion to Dismiss this claim is granted."  Of course, allegations of race discrimination are neither required nor relevant under Title IX, a sex discrimination statute.  And Title IX's requirement that discrimination be "because of sex" is typically satisfied in sexual assault cases due to the sexual nature of the offense.  This court is clearly confused about Title IX.  Walker v. Lorch, 2013 WL 3358013 (S.D.N.Y. July 2, 2013).

Transgender Student Prevails In Title IX Settlement

The Arcadia School District in California has agreed to allow a transgender ninth grader to use male restrooms and locker rooms and to "otherwise treat the student as a boy in all respects."   The student has a male gender identity and has been living as a boy since the fifth grade.  With the help of the National Center for Lesbian Rights, he filed complaints with the Department of Education and the Department of Justice, alleging that the district violated Title IX by denying him access to boys' facilities at school, and by not allowing him to share a cabin with other boys on a school-sponsored camping trip.  The voluntary resolution agreement announced this week ends the agencies' joint investigation into the matter.  Under the agreement, the school district must treat the student as a boy going forward,  as well as amend its policies to ensure that other transgender students' gender identities receive similar respect.  By entering into this agreement, the school district preempts any formal findings that it was in violation of Title IX.

This case is significant because it represents the first time that the Department of Education has considered under its jurisdiction to enforce Title IX a claim involving discrimination on the basis of transgender gender identity -- i.e., treating a transgender student who identifies as male differently from other, non-transgender students who identify as male.  Implicit in the Department's willingness to extend its enforcement power to a case like this is the agency's broad definition of what it means to discriminate on the basis of sex.  It is not an entirely novel interpretation, however.  The Department of Education may have been influenced by a similarly broad definition of sex discrimination which appeared earlier this year in a ruling by the EEOC in the analogous context of employment discrimination. There, the agency agreed to accept jurisdiction over a case involving a transgender complainant who was passed over for a job, reasoning that whether because the discrimination was based on the complainant's gender nonconformity, change of gender, or transgender gender identity, the case was one of sex discrimination and needed to be treated as such.

Now that the Department of Education has demonstrated that it is willing to extend its Title IX enforcement power to transgender gender-identity discrimination cases, it is likely we will see more such cases in the future. 

Jackson Alleges Continued Retaliation

Roderick Jackson, the Birmingham, Alabama coach whose case established Supreme Court precedent about Title IX's application to retaliation, recently alleged that he has been "permanently blackballed" from coaching in the city schools since his case settled four years ago.  He filed a complaint with the EEOC earlier this month, claiming that he has applied for more than 20 coaching positions within the Birmingham City Schools, and has only received one interview.  And he was passed over for that position, he says, in favor of a person less experienced and qualified.  He believes that the school district's failure to hire him is retaliation for having initially spoken out about gender equity affecting his girls basketball team at Ensley High School, the predicate to his Supreme Court case, as well as for advocating the enforcement of a settlement agreement that ended his case by requiring the district to ensure equal athletic opportunities for girls throughout the district.   

The EEOC has 180 days to conduct an investigation of his claim.

Updates on OCR's Investigations into Colleges' Responses to Campus Sexual Assault

The Department of Education's Office for Civil Rights has its hands full with sexual assault complaints. It has opened investigations into the complaints filed earlier by students from Dartmouth College, University of Southern California, University of Colorado Boulder, Swarthmore College, Occidental College, and University of North Carolina, Chapel Hill.  Here are some updates in each of those cases.  

In the Dartmouth case, OCR has initiated on its own an investigation into possible Title IX violations in the college's sexual harassment grievance procedures, its responses to sexual harassment claims, and its designation of a Title IX coordinator. These claims were not included in the students' earlier-filed complaint, which focused on sexual assault reporting problems as alleged Clery Act violations.

At USC, the OCR will investigate claims that the university failed to investigate and discipline students accused of rape.  One complainant told OCR that campus police refused to consider an act of rape when a male student penetrated her, but did not ejaculate.  Another said that university official told her, by way of explanation for not responding to her allegation of rape, that the university's job was to the educate, not to punish students. 

The student who filed a complaint about CU Boulder alleges that the university failed to adequately respond to sexual assault committed on her, even though her assailant was found guilty of nonconsensual intercourse by a university disciplinary committee.  The assailant was sanctioned to an 8 month suspension, which was not enforced for four weeks during which time he continued to have contact with her.  Meanwhile, the local criminal court had no trouble issuing a restraining order that would prevent the him from returning to campus while she is a student there.  She argues that the university should have been willing to provide at least as much protection to ensure her safety and well-being.

The ongoing Title IX investigation about Swarthmore's failure to adequately respond to sexual assault has already prompted the college to update its policies, it was recently reported. Swarthmore responded to the initial filing of the complaint last May by hiring a private company to conduct an independent review of its handling of sexual assault, and its findings form the basis for the college's changes going forward.  The college will also hire a Title IX coordinate and a victim's advocate, and will improve training for university staff.  These changes could speed up OCR's investigation, and could allow Swarthmore to emerge from the investigation with OCR's effective blessing on current practices and procedures.  Swarthmore also faces complaints that they underreported sexual assaults in violations of the Clery Act, and OCR has not yet announced an investigation into these claims.

Like Swarthmore, Occidental College also hired an external reviewer to evaluate its sexual assault policies, even while OCR's investigation is ongoing.  

OCR's investigation into complaints that UNC violated Title IX and the Clery Act recently expanded to include a claim that it retaliated against the student who initially filed those complaints by charging her with an honor code violation.  The charge, which was ultimately dropped, accused her of creating an intimidating environment for her alleged abuser.   UNC is also accused of retaliating against the initial complainant by moving her assailant to a dorm near her residence. 

Dear Colleague letter re: pregnant and parenting students

At the end of June, the Department of Education released a Dear Colleague letter and accompanying pamphlet informing schools about their requirements, under Title IX, to support pregnant and parenting students. Study data reveal that over a quarter of male and female parents cite parenthood as a major factor in their decision to drop out of school and when looking at just young women, that number rises to about a third. The effects of young parenthood are seen most drastically in higher education where only 2% of women who had a child before the age 18 earn a college degree before they turn 30.
The (34-page) pamphlet emphasizes previously made points--schools cannot deter pregnant and parenting students from attending classes, extracurricular activities, or mandate participation in established "alternatives." Additionally, alternative programs must meet the same standards and have a similar range of opportunities as traditional schools. Pregnancy must be treated as other medical leave situations, which means students returning after this leave have the same academic and extracurricular status.
There is a very helpful FAQ section addressing issues like individual teachers' attendance policies, what policies and procedures schools must have in place to be in compliance, and how to file a complaint. 
The pamphlet also provides administrators and educators strategies for assisting pregnant and parenting students to ensure that these students satisfactorily complete their educations. They are divided by position (administrator, teacher, counselor) and many include pro-active strategies for retention, facilities, and policies, as well as post-birth and post-dropout outreach.