Friday, June 08, 2018

Decision Roundup: Deliberate Indifference Edition

Here are some recent judicial decisions addressing institutional liability for sexual harassment and misconduct. These cases all specifically focus on the institution's alleged deliberate indifference:

A student who was sexually assaulted by a classmate plausibly alleged that her school district was deliberate indifferent to the threat posed by the perpetrator, whom school officials knew to have recently touched other female students without consent, and whom they allegedly failed to discipline prior to the sexual assault in question. T.Y. v. Shawnee Mission Sch. Dist., No. 17-2589-DDC-GEB, 2018 WL 2722501 (D. Kan. June 6, 2018).

Affirming the lower court, the 11th Circuit Court of Appeals held that a Florida school district was not deliberately indifferent to reported harassment where it met with the victim and family the day after receiving the report and the day after that, and, following the week-long investigation, suspended the harasser for two days and ordered him not to have any more contact with her.  G.P. v. Lee County School Board, No. 17-14657, 2018 WL 2714658 (11th Cir. June 5, 2018).

A student who was attending a gateway program of the University of Notre Dame argued that the university was deliberately indifferent when it opened an investigation into her sexual assault that had been reported by someone else. But the court dismissed the claim, ruling that the university's decision to respond to the report, was not clearly unreasonable because the university had other reports that the same perpetrator, a UND football player, had assaulted another woman as well, and therefore had "an  obligation to the larger community to investigate the matter." Doe v. Univ. of Notre Dame Du Lac, No. 3:17CV690-PPS, 2018 WL 2184392 (N.D. Ind. May 11, 2018).

A school for students with autism may stand trial on a Title IX claim that it didn't do enough to protect one of its students from being molested by a fellow student who was 6 years older.  The perpetrator had previously been accused of attempting a rape his roommate, and was also known to have shown pornography to the plaintiff. In light of this knowledge, the court concluded, a jury could conclude that the school's failure to separate the plaintiff from the perpetrator and more adequately monitor his conduct amounted to deliberate indifference, and thus denied its motion for summary judgment. Doe v. The League School of Greater Boston, 2018 WL 2077595 (D. Mass. May 3, 2018).

A school district in Missouri must continue to litigate claims arising from a coach's sexual abuse of a student after losing its motion to dismiss Title IX and other claims. The plaintiff alleged that the school officials had knowledge of various acts of increasingly-severe misconduct committed by the coach (who was criminally convicted). The district's failure to discipline or remove the coach could therefore be seen as deliberate indifference, subjecting the district to liability for the abuse the student endured.  KC v. Mayo, 2018 WL 2107201 (W.D. Mo. May 7, 2018)

The school district in Russell County, Virginia, must continue to defend a lawsuit precipitated by a school custodian's sexual abuse of young boys after a federal court denied summary judgment on Title IX claims that alleged the school district's deliberate indifference to the abuse. The plaintiff, one of the students who had been the victim of that abuse, alleged that that school district should have conducted an independent investigation when it learned that the custodian's wife had called on county officials (its Department of Social Services) to investigate the relationship with the student. For its part, the school district argued that it was reasonable to forgo such an investigation in light of the fact that DSS did not find any evidence of abuse, and that the student's guardians had consented to the custodian's role in the student's life. But the court concluded that it was possible that a jury could determine that the school district's response was clearly unreasonable after hearing all the evidence, and allowed the claim to proceed. The court also found that the plaintiff had presented sufficient evidence from which a jury could conclude that that the school responded with deliberate indifference to the custodian's confession to abusing the student. Evidence that the school board failed to offer counseling or other remedial measures or implement any training or personnel policies aimed at preventing future abuse would support a jury's conclusion that the school district is additionally liable for damages arising after notice of the abuse came to light.  Doe by Watson v. Russell Cty. Sch. Bd., 2018 WL 842196 (W.D. Va. Feb. 13, 2018)

A federal magistrate in Texas recommended the dismissal of Title IX claim against the Austin Independent School District arising from harassment that the female plaintiff endured from another male student who had persistently pressured her for a romantic relationship and acted out in disturbing ways when she declined. The magistrate determined that the school had notice of the male student's obsessive behavior regarding the female student after an incident in which the male student exhibited suicidal behavior.  Yet, the school district's response to that information amounted to more than deliberate indifference. School officials developed a safety plan that included a security guard to shadow the female student.  Even though this did not completely eliminate encounters between the female and the male student, it did minimize them and ensured that no harassing behavior occurred again. Therefore, the school district's response was not clearly unreasonable and the school district could not therefore be liable for damages to the plaintiff under Title IX.  E.M. v. Austin Indep. Sch. Dist., 2018 WL 627391 (W.D. Tex., Jan. 30, 2018).

Thursday, June 07, 2018

Decision Roundup: Displined Student Edition

Here are some examples of recent judicial decisions involving Title IX's application to student discipline:

The Ninth Circuit Court of Appeals ruled that a male student's Title IX claim against University of California at Santa Barbara should be dismissed because the plaintiff did not exhaust the administrative remedies available to him as a matter of state administrative law. The plaintiff should have first challenged the university's decision by filing a petition for administrative mandamus before challenging the decision in federal court without any other .  Doe v. Regents of the University of California, No. 17-56110, 2018 WL 2709728 (9th Cir. June 6, 2018).

A student at a performing arts high school who was suspended for sexual harassment could not proceed on a Title IX claim containing "conclusory" allegations that the school's decision to initiate the disciplinary proceeding was motivated by the student's gender as opposed to the allegations of sexual harassment made by his peers. Nor were his claims that the school treated other female students more favorably sufficient to support a claim of disparate treatment due to sex. In re the matter of John Doe, v. Saint Paul Conservatory for the Performing Arts, No. CV 17-5032 (DWF/FLN), 2018 WL 2431849 (D. Minn. May 30, 2018).

A student suing the New School over having been suspended for sexual assault did not sufficiently plead a Title IX claim because the complaint lacked particular facts sufficient to cast some "articulable doubt on the accuracy of the outcome of the disciplinary proceeding." Moreover, the plaintiff supported his allegation that the proceeding was tainted by gender bias by pointing to the panel's finding that he "lacked empathy." The court rejected the contention that this statement indicated the panel was relying on gender stereotypes, noting that the empathy finding lacked a "bona fide connection to gender." B.B. v. The New School, No. 17 CIV. 8347 (AT), 2018 WL 2316342 (S.D.N.Y. Apr. 30, 2018).

A court refused to enjoin the plaintiff's suspension from George Washington University on grounds that his Title IX claim was not sufficiently "likely to succeed on the merits." The student alleged in his complaint that the university was biased against males because it was under investigation from OCR, as well as under pressure from student protestors, over its alleged failure to discipline perpetrators of sexual misconduct.  The court conceded that this allegation could be sufficient to withstand dismissal, but did not rise to the level of likely success required for a preliminary injunction to issue. Doe v. Geo. Wash. U., 2018 WL1972461 (Apr. 25, 2018).

Tuesday, June 05, 2018

University of New Mexico's Athletic Department Scrutinized for Title IX Compliance

Last week the University of New Mexico released a report prepared by a consultant that it hired to evaluate the Title IX compliance of its athletic offerings.  The report determined that UNM was in compliance with the three-prong test, specifically the third prong, but nevertheless recommended that the university strive for compliance with the proportionality prong through a combination of roster management and elimination of some large-roster teams.

The third prong requires a university to show that for whichever sex is underrepresented in athletics, the university is fully satisfying their interests and abilities to play. At UNM, women are the underrepresented sex, making up 55.4% of the student body, while only receiving 43.8% of athletic opportunities -- a disparity that disqualifies UNM from complying with the first prong of the three-prong test, i.e., proportionality. The consultant evaluated women's interest in sports that the university does not currently offer, and found indicators of interest in such sports as rugby and water polo. Additionally, the consultant correctly considered sports that the NCAA recognizes as championship or emerging sports, but which UNM doesn't offer, like Acrobatics and Tumbling, gymnastics and field hockey. For all of these sports, however, the consultant concluded that either recruiting or competition opportunities were sufficiently limited for UNM such that it could justify a decision not to add these teams. The consultant even says, "If UNM chose to argue (to OCR) that it meets the requirements for Test 3, they could do so," adding that this requirement option is challenging in that it requires continued monitoring of the interest levels and popularity of these sports, and possibly the eventual adding of teams at some point.

Nevertheless, the consultant has recommended a strategy for compliance with prong one that the university seems eager to embrace. This is is not surprising, as the university faces a multi-million dollar accumulated and projected deficit. My guess is that the athletic department hired the consultant in the first place to set itself up to make a Title IX argument down the road in defense of what will surely be an unpopular decision to cut some men's team. When the time comes, it will handily hold up the consultant's report and say, "we had to cut teams, Title IX says so!" The university's decision to publicize the consultant's recommendation and make the report easily accessible on its web site is consistent with this strategy.

If that happens, that will be an oversimplification and distortion of what is really going on. If OCR were ever called to investigate athletic offerings at UNM, it would be unlikely to find the university noncompliant. At most, it would require them to conduct interest surveys (which the consultant notes the university hasn't done) and continue to monitor the interest and popularity of sports it doesn't offer. It's possible at some point in the future the university would be compelled by prong three to add a new team for women or else cut an existing men's team for proportionality compliance, but that's not the moment the university seems to be in now. It is unfair to blame Title IX for the elimination of teams when that's not what the law is requiring UNM to do right now. Instead, the university should own this decision.

 (As as side note, I disagree with the consultant's conclusion that the university complies with prong two, for now, as a result of adding a women's team in 2015. Prong two requires a history and continuing practice of adding opportunities for the underrepresented sex -- not a history and recent practice.  Prior to 2015, the last time a women's team was added in 1993, and this gap of 22 years is much larger than any gap I've ever seen the OCR bless as evidence of a continuing practice.)

Wednesday, May 23, 2018

District Court Sides With Gavin Grimm

Gavin Grimm's litigation against the Gloucester School District challenging its refusal to let him use the boys' bathroom because he is transgender has had many ups and downs. In one sense, "ups and downs" describes the case's procedural posture, as it bounced between and among the lower, appellate, and U.S. Supreme Court. "Ups and downs" also describes the mood of Title IX and transgender rights advocates, as Grimm's case was first dismissed by the lower court, then reinstated by the appellate court, then added to the Supreme Court's docket, then canceled after the Trump Administration withdrew OCR's prior position on Title IX on which the appellate court had relied when it ruled in Grimm's favor. This led the case to be remanded to the appellate court, to see what it would do without the benefit of OCR's guidance that favored Title IX's application to transgender rights. But the appellate court, in turn, sent it back down to the lower court... Whew!

Yesterday the lower court in Virginia sided with Grimm (so, that's a DOWN in terms of procedural posture, but UP in terms of mood!). Specifically, the court denied the school's motion to dismiss, ruling that both Title IX and the U.S. Constitution's Equal Protection Clause protect Grimm's right to use the boys bathroom. Sex discrimination includes discrimination motivated by an individual's sex stereotypes, and, the court found, that is what Grimm alleges the school district's policy does: "isolate, distinguish, and subject to differential treatment any student who deviated from what the Board viewed a male or female student should be, and from the physiological characteristics believed that a male or female student should have."

So what happens now?  Are we going UP again to the Fourth Circuit? That depends on whether Gloucester School District appeals. If that happens, will we stay UP in terms of mood?  That's up to the judges in Richmond. Last time, they ruled in Grimm's favor but, as I mentioned, did so in specific reliance on OCR's then-existing interpretation of Title IX. Whether the court will reach the same interpretation of Title IX on its own is a different question, but it helps that the district court has already laid out the argument for reading Title IX to protect the right of transgender students to use the bathroom that corresponds to their gender identities -- as have a number of other district court and one appellate court in similar case.

One final observation: those following closely might recall that one of the reasons the appellate court sent the case back down to the lower court this most recent time was to address whether Grimm's graduation from high school rendered the case moot. According to the parties' briefs, Grimm agreed to voluntary dismissal of his claims for an injunction and other prospective relief, which were unquestionably moot after his graduation. But litigation proceeded on his remaining claims for "nominal damages and retrospective declaratory relief." Retrospective declaratory relief is not something I've seen in Title IX litigation before, but clearly it's something all student plaintiffs should be including in their complaints!

Monday, May 21, 2018

A Roundup of Recent K-12 Discpline Cases

We often blog about discipline cases that involve college students who have been suspended or expelled for sexual misconduct. But secondary school students also use Title IX challenge discipline, as three recent examples show:

A female student in Louisiana was dismissed from the cheerleading team as punishment for "unacceptable behavior while in uniform" after she posed for picture with her uniform skirt raised and this photo was posted to social media. The student and her parents challenged the punishment, arguing that it violated Title IX because male student athletes were not punished as harshly for comparable behavior. The Fifth Circuit Court of Appeals affirmed the lower court's dismissal of her claim for lack of evidence indicating that the punishment was motivated by sex.  Specifically, the court focused on the lack of a cheer-specific male comparitor instead of comparing female and male students athletes more generally. The cheerleading team's "acceptable behavior" policy "did not contain language that could be construed as only applying to female cheerleaders" nor were there allegations that male cheerleaders were disciplined less harshly for similar infractions. Arceneaux v. Assumption Par. Sch. Bd., 2018 WL 2271077 (5th Cir. May 17, 2018).

A male student was suspended after he was reported to have threatened various harm to teacher who had given him a grade lower than he believed he deserved. The student sued, alleging among other claims that the discipline he received constituted gender bias in violation of Title IX. The court denied the school's motion to dismiss and permitted the claim to go to trial because there was evidence that a jury could conclude demonstrates gender bias-- namely, the fact that the other student who participated in the same conversation and also threatened to harm the teacher, who was female, was not suspended, as well as disputed evidence that the vice-principal who disciplined the plaintiff had once mocked the plaintiff for possibly being gay and failing to conform to masculine stereotypes and was allegedly biased against him for that reason. Gentry v. Mountain Home Sch. Dist., 2018 WL 2145011 (W.D. Ark. May 9, 2018)

A school prevailed on its motion to dismiss a Title IX claim filed by a male student who was challenging discipline he received for allegedly "groping" a female student a school dance. The court found that the plaintiff's allegations of sex discrimination were conclusory and lacked sufficient basis to warrant discovery. However, the plaintiff's claims of race discrimination in violation of Title VI were allowed because the plaintiff, who is mixed race, included specific allegations of white students who were not disciplined for similar misconduct. Doe v. The Blake School, 2018 WL 2108204 (D. Minn. May 7, 2018).

Friday, May 18, 2018

Florida Atlantic Accused of Fudging Athletic Participation Data

Florida Atlantic University inflated its female athletic participation data that it submits annually to the Department of Education. This report mislead the government and the public that the institution satisfied its Title IX obligation to provide equitable athletic opportunities by distributing them proportionate to the gender breakdown of the student body, when in fact this was not the case.

According to an article published today by the Palm Beach Post:
In 2016, women represented more than half of the Boca Raton school’s enrollment but only 31 percent of its athletes. The percentage was the lowest of all 127 schools participating in [Division I].
Just one year later, FAU claimed it had erased its female participation gap. It told the U.S. Department of Education in 2017 that 51 percent of its athletes were women.
Specifically, the Post noted that FAU overcounted female track athletes, reporting a team of 98 in 2017, which was more than double the number reported in 2016. The reported number was also considerably higher than the number of the roster, 43, and in the team photo, 38.  FAU reported a total of 222 female athletic opportunities for the combined total of indoor track, outdoor track, and cross country, which if accurate would have made it the largest women's track program in all of Division I.

For its part, FAU acknowledged the inaccuracy but called it accidental, and blamed an employee who no longer works at the university.

It's been a few years since we've seen a story like this one, but today's news suggests that the practice of reporting inflated data still occurs. It also underscores that the way we find out about these problems is when the media goes digging for the truth behind the numbers. 

Wednesday, May 16, 2018

Michigan State Settles With Nassar Victims for $500 Million

We will never know if a jury would have concluded that Michigan State should have known earlier that athletics department doctor Larry Nassar was a sexual predator and responded accordingly to prevent his continued abuse of university athletes as well as those on the Olympic gymnastics team for whom he also worked. We do know, however, that it was worth $500 million dollars to Michigan State not to have to find out: Today comes news that the university has settled for that amount with the 332 alleged victims who have sued the university and other defendants for damages stemming from the sexual abuse they endured from Nassar. $75 million of that will be placed in trust for victims that haven't yet been identified, while the remainder will be divided among the plaintiffs.

The settlement only affects claims against Michigan State University and individual university defendants. USA Gymnastics, the United States Olympic Committee, and other individuals involved with the national team remain parties to the suit. Nassar himself is serving an effective life sentence in prison. He plead guilty to nine counts of assault as well as federal child pornography crimes.

Wednesday, May 02, 2018

Eighth Circuit Rejects University's Sovereign Immunity Defense

A student sued the University of Arkansas, alleging that its response to her report of sexual assault on campus was deliberately indifferent in violation of Title IX.  The university sought dismissal on the grounds of sovereign immunity. Sovereign immunity is the constitutional doctrine that protects states -- including arms of the state, like state universities -- from being sued in federal courts. The exception, however, is when states consent to be sued or waive their sovereign immunity.  Traditionally, courts have agreed that accepting federal money amounted to a waiver of sovereign immunity.  Predictably, the federal district court in Arkansas denied the university's motion to dismiss on sovereign immunity grounds.

But the university fought this decision by appealing to the appellate court for the Eighth Circuit. It solicited support from five other states, who submitted an amicus brief asserting the same theory, that sovereign immunity protects a state university from being sued, at least for damages, under Title IX.  The states argued that a 2011 Supreme Court decision called Sossamon v. Texas changed the test for evaluating whether a state waived its sovereign immunity by requiring "clear declaration" by the state of its intent to so waive. Applied to cases arising under spending-clause statutes like Title IX, that means, the statute itself must contain "unequivocal" language that accepting federal money constitutes waiver.

Here, the relevant statute is the Remedies Equalization Act of 1986, which expressly provide that "a State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court" for a violation of Title IX and other enumerated federal civil rights laws.  The University of Arkansas's argument is that this statute, despite its clear language, does not clearly declare whether a state waives sovereign immunity for damages claims. In ruling against the university's appeal, the Eighth Circuit pointed out that the Remedies Equalization Act clearly stated that states shall be liable for "remedies at law and equity."  Remedies in equity are things like injunctions and declaratory judgments. Remedies are law, the court explained, are damages. The court also found evidence that Congress intended the waiver to apply to claims for damages.  Thus, the court of appeals concluded:
The Remedies Equalization amendment clearly and unambiguously expresses the University’s consent to Title IX suits for damages. By accepting federal funds, the University in fact consented to suits for compensatory damages for violations of Title IX.
Though the university's argument was a long shot, it generated a lot of attention and concern over its potential to seriously curtail the effectiveness of Title IX as a remedy for state university students whose reports of sexual assault generated the institution's indifferent response. These cases are usually driven by a damages claim (as opposed to, say, Title IX athletics cases where the plaintiff is trying to get more resources, or to reinstate a discontinued team).  A university's indifference to sexual assault causes emotional distress, creates expenses (if it causes the student to transfer or otherwise interrupts their education), and may even subject the student to subsequent sexual harassment or misconduct, with its own resulting damages.  If the court had somehow ruled in favor of the university on this matter and prevented state university students from seeking this relief, those students in the Eighth Circuit would have experienced a serious curtailment of their civil rights. The court's rejection of this argument, however, preserves the federal courts as a forum where Title IX claims arising from sexual misconduct can be addressed and where compensation, if warranted, be awarded.

Monday, April 23, 2018

OCR Will Now Dismiss Complaints By "Frequent Flyers"

The Department of Education has recently revised its Case Processing Manual to permit OCR to dismiss complaints in the interest of efficiency. Section 108 of the Manual lists the grounds on which the agency can dismiss a complaint in lieu of, or an any point during, an investigation. These grounds have long included things like: lack of jurisdiction, failure to state a violation of law, insufficient factual allegations, and duplication of an ongoing enforcement action in a state or local agency. But the Department now also permits OCR to dismiss a complaint that is "a continuation of a pattern of complaints previously filed with OCR by an individual or group against multiple recipients" as well as complaints filed for the first time against multiple recipients that "viewed as a whole, places an unreasonable burden on OCR’s resources."  According to the New York times report on this change, the agency justifies this new policy on grounds that it permits them to set priorities for enforcement and to use resources efficiently, by addressing the problem of activists, so-called "frequent flyers," clogging up the enforcement docket with routine filings and mass complaints. 

While this may be new language in the Manual, OCR's aversion to routine and mass complaints is not new in practice. I've seen examples in which OCR dismissed complaints by routine filers on grounds that wouldn't have applied to other complaints. For instance, the agency has dismissed Title IX complaints filed by individuals who routinely challenge inequitable distribution of athletic opportunities in public schools.  In my observation, the rationale for these dismissals -- particularly, in requiring complainants to produce an unreasonable and illogical amount of evidence of unmet interest -- are not consistent with the agency's overall practice.

I suppose it is better that the agency has added a provision expressly permitting the dismissal or mass complaints than to distort the legal standard in ways that could create harmful precedent for all complaints. But I still find it troubling. Because of the way that Title IX and other civil rights laws are structured, the only penalty OCR can impose or threaten is the loss of federal funding -- but it must provide the institution notice of its noncompliance and an opportunity to correct the problem before any funding is withdrawn. As a result, the threat of administrative enforcement does very little to inspire institutions to proactively comply. Why would they?  Compliance is often expensive and unpopular. If you have the choice between doing it now, or maybe having to do it later because OCR has shown up and said, "this is what you have to do in order to comply," why would anyone choose now? Thus, activists filed mass complaints not to be annoying, but because they are the only thing that gets institutions to focus on their compliance obligations.

So while I see the agency's point of view about efficiency and maintaining control over their own enforcement priorities, I am concerned that this new enforcement policy simply makes it even easier for institutions to put off compliance. By cutting off enforcement at the knees, it sustains the persistent gap between what the law clearly requires and what educational institutions actually do in practice.

Thursday, April 12, 2018

For Now 4-H Rodeo May Continue to Label Events for Boys and Girls

In South Dakota, 4-H rodeo is under Title IX scrutiny because of its practice of labeling events for boys and girls. Boys' events include riding bulls and broncs, while girls compete in goat-roping and ribbon-roping.  The USDA, which administers federal funding to 4-H programs*, has apparently taken issue with this practice since the 1970s, so it's unclear why the practice has persisted until now, nor is it clear what prompted the agency to reach out last year with a request to remove the labels "boys" and "girls" from the respective events or risk ineligibility for federal funds.

It's also unclear why 4-H has been resisting the agency's request, given that the "boys" and "girls" labels conflict with the organization's reported actual practice of permitting participants of either sex to compete in all events.  If the labels aren't signalling actual exclusion, what purpose do they even serve?  The only purpose I can see is norm-setting. 4-H is effectively telling girls, "we won't tell you you can't ride a bull, but we can tell you 4-H doesn't think that's appropriate feminine behavior." And the same goes for boys and goat- and ribbon-roping (which Wikipedia explains here).  Sex-stereotyping is a well established aspect of sex discrimination that is prohibited by statutes like Title IX.

For now, however, the Secretary of Agriculture Sonny Perdue has temporarily halted the USDA's enforcement efforts. Yesterday it was reported that the agency will embark on a "broader review" of its Title IX regulations, and the Secretary says it would not be "appropriate" to upend decades of tradition in South Dakota while this review is pending. South Dakota is one of two states that has 4-H rodeo; and New Mexico's 4-H rodeo reportedly does not label its events by gender.

*This is the first time we've blogged about 4-H and Title IX. Because it is an educational program that receives federal funds, it is subject to Title IX.  However, it must comply with the USDA's interpretation of the statute rather than the Department of Education's, because the USDA is the agency that administers its funds. 

Tuesday, April 03, 2018

Big Payouts--Not to Victims

A few weeks ago I wrote about the costs of Title IX violations focusing on the money schools are spending to defend themselves against lawsuits. I mentioned, in that post, that the costs Baylor has incurred are unknown; only that they continue to litigate several cases involving multiple plaintiffs and that they have settled one case.

But Baylor has not just been negotiating settlements with plaintiffs. This week we found out what Baylor paid a lot of money to get rid of former football coach Art Briles and former president, Kenneth Starr. In June 2016, the school reached agreements with both men. Briles received $15.1 million and Starr's severance was $4.5 million.

Baylor's settlement with one victim in the fall of 2017 was confidential. My educated guess is that it was not even close to what these men received.

I want to also note the difference in the amount of the settlements. Coaches get bought out of contracts all the time--a practice which I find infuriating but almost unbearable when the coach is being released because of bad behavior. Briles is just the latest of this group. (Technically not the latest. Rick Pitino is being paid very well for his role in the college basketball bribery scandal. The information about Briles's severance is the newest, however.)

Look at the payouts and figure out who had power and influence on that campus and think about how Baylor continues to deny there was a culture of sexual hostility on campus. Football players were not the only perpetrators, but they were definitely protected by the system. The system, if we are going based on payouts, that Briles ruled over--even more so than the university's president.

Another former president may also be rewarded for her complicity in the sexual abuse of gymnasts scandal. Lou Anna Simon, who stepped down as the president of Michigan State University could get over $1million easily if she comes back as a faculty member in addition to a slew of other perks and benefits. There was some outrage over the conditions stipulated in her contract but I have nor heard any more about whether she will be returning and under what conditions.

Saturday, March 31, 2018

Roundup of Recent Disciplined-Student Cases

A student who was suspended for sexual assaulting another student sued the University of Cincinnati alleging that the disciplinary decision violated Title IX and his constitutional rights to due process. Though the student initially prevailed in motion for a preliminary injunction, the court has now concluded that allegations of gender bias and unconstitutional process are not sufficient to sustain his case.  First, the court rejected that the plaintiff's allegations bias constitute constitutional violations. The university's professed sensitivity to the needs of sexual assault victims, for example, does not establish that anyone prejudged the outcome of this particular case. Nor do general allegations that the university was under pressure to comply with the now-rescinded 2011 Dear Colleague Letter. Finally, in response to the plaintiff's allegations that the Title IX coordinators affiliation with an organization that promotes a victim-centered response, the court quoted the Sixth Circuit, for the point that "merely being a feminist or researching topics that affect women does not support a reasonable inference that a person is biased." The plaintiff's Title IX claim fared no better, as it too lacked the requisite allegation of bias on the basis of sex.  The plaintiff attempted to base his bias allegation on the fact that the university was being investigated by OCR for its sexual assault response. Thus, he asserts, the university would have been under pressure to make an example of him.  Yet, the court reasoned, no allegation claims that any of the university officials involved in his case were even aware of the OCR investigation, let alone were influenced by it. Additionally, the court rejected the claim that media and advocacy pressure to "crack down" on campus sexual assaults and address "rape culture" were sufficient articulations of gender bias, since they do not establish that the university faced pressure for how it conducted disciplinary procedures, rather than in general its sensitivity and response to rape.  Doe v. Univ. of Cincinnati, 2018 WL 1521631 (S.D. Ohio Mar. 28, 2018)


In another recent decision, however, a court concluded that the plaintiff's allegation of gender bias was sufficient and that he could continue to litigate his claim that the university's decision to suspend him for sexual assault violated Title IX:
One plausible inference from plaintiff's allegations is that the University, in an attempt to change historical patterns of giving little credence to sexual assault allegations, has adopted a presumption that purported victims of sexual misconduct are telling the truth. Indeed, that may well be the most plausible inference at this stage. To the extent that discovery shows that any bias against plaintiff stemmed from a purely “pro-victim” orientation, that bias did not violate Title IX or the Equal Protection Clause. But another plausible inference from the complaint is that the University was predisposed to believe Roe because she is a woman and disbelieve plaintiff because he is a man. That inference could be supported by, among other things, evidence that when the accused is a woman and/or when the accuser is a man, the University conducts sexual misconduct investigations and adjudications differently than it did in this case. Such evidence is, of course, practically unavailable to plaintiff without the tools of discovery. Because the allegations in the complaint support a plausible inference of gender bias, Defendants' motion to dismiss Plaintiff's Title IX and Equal Protection claims is denied. 
Doe v. University of Oregon, 2018 WL 1474531 (D. Or. Mar. 26, 2018)

Yet, a third recent decision granted a university's motion to dismiss a disciplined-student's Title IX claim based on the insufficiently of his allegations of gender bias. The court did not accept that OCR's promulgation of the 2011 Dear Colleague Letter put pressure on the university to discriminate against men. Or even, as the court pointed out, that the university made changes to its disciplinary process in response.  Doe v. University of Dayton, 2018 WL 1393894 (S.D. Ohio Mar. 20, 2018).

Friday, March 30, 2018

Plaintiff May Continue to Litigate Claims that Catholic University was Deliberately Indifferent to Her Rape

Students who sue educational institutions for failing to respond to sexual misconduct must meet a high judicial standard of proving that the institution's response amounted to "deliberate indifference." This is a high bar, as the court must find that the institution's response wasn't just flawed, but clearly unreasonable.  Because of this many plaintiffs lose on dispositive motions prior to trial. And so I make a point to blog about the cases that survive such motions, like the one I read today about Catholic University.

In this case, the plaintiff alleged that the university's response to her reported rape was deliberate indifference.  According to her allegations, the university initially declined to discipline the alleged assailant, believing there to be evidence of consent. Then the plaintiff produced a toxicology report that showed her blood alcohol level at the time of intercourse would have been three times the legal limit to drive a car. Thus, she argues, she was clearly too incapacitated to have consented, and so incapacitated that the assailant would have recognized her inability to consent.  Based on this, the university decided (eventually) to conduct a disciplinary hearing.  But, the complaint alleged, the hearing procedures limited the plaintiff's opportunity to present evidence in support of her claim that she was obviously too drunk to consent. As a result, the university found insufficient evidence to find the assailant responsible, a finding upheld on appeal.

The plaintiff's charge of deliberate indifference was supported by allegations that the university's resolution of the case was unreasonably delayed, that its investigation procedures were flawed and lacking, that she was denied procedural rights at the hearing, such as having adequate notice of the date and time, and an opportunity to call certain witnesses. Additionally, she alleged that university officials involved had already made up their minds about the case, and that they treated her with hostility.  And, she claims that the University failed to maintain and to enforce a no-contact order and thus exposed her to continuing harassment throughout her time in college.

The court needed to consider only two of these claims before reaching the conclusion that she had adequately plead deliberate indifference. First, the court reasoned that a jury could find deliberate indifference if the plaintiff proves her allegations of delay -- primarily, the allegations that the university took eight months to hold the disciplinary hearing. This is notable because the lower courts are pretty mixed about whether delay can qualify as deliberate indifference.  The other allegations that the court credited were the ones about university's failure to enforce the no-contact order; these too could give rise to liability under Title IX if they prove true. With two reasons to deny the motion to dismiss, the court decided it did not need to evaluate whether any of the plaintiff's remaining allegations of deliberate indifference would have independently support liability as well.

Of course, surviving a motion to dismiss is only a preliminary victory for the plaintiff. As the court pointed out, she is still vulnerable to dismissal at summary judgment if evidence to support these allegations does not emerge.  And of course, the jury would have an opportunity to decide if the evidence supports the conclusion that the university was deliberately indifferent.  But enough cases stumble on that preliminary step that this one is worth noting.

 Cavalier v. Catholic Univ. of Am., 2018 WL 1524743 (D.D.C. Mar. 27, 2018)

Wednesday, March 28, 2018

NPR's Story on Title IX and Religious Institutions Lacks Context

Yesterday NPR ran a story on All Things Considered addressing the conflicts some religious institutions face between upholding their religious beliefs and respecting/including LGBT individuals and identities. I liked that the story, and its counterpart on yesterday's Morning Edition, captured some of the nuance and avoided the reductionist narrative of Christians versus Queers. Listeners heard from college administrators at Christian institutions that respect and support LGBT students, as well as from LGBT students who, as Christians themselves, appreciate and genuinely feel included by their Christian college communities.

But when ATC's segment turned its focus on the supposed fear and worry on the part of some Christian institutions that they could lose federal funding if they do not endorse LGBT rights, the framing of this story started playing into Christian propaganda.  The report neglected to include important context that shows there is no actual reason for religious institutions to worry.

First, OCR has never revoked any institution's federal funding in the entire lifetime of Title IX. Though general, that seems like kind of an important point to make when specifically discussing concern that this could happen.

Second, thanks to the current presidential administration, OCR will not enforce Title IX's application to transgender rights. This was mentioned briefly in the report, but its significance was not addressed. Religious institutions have zero reason to fear that OCR is going to start requiring institutions of any kind, religious or not, to house transgender students or let them use facilities according to their gender identities. (Courts are another story, but courts do not have the power to revoke federal funding.) 
 
Third, even confining religious institutions' fear to the anticipation that OCR could in the future return to its former position on LGBT rights, it still needs to be emphasized that Title IX exempts religious institutions from any part of Title IX that conflicts with their religious beliefs.  All a religious institution has to do is send in a letter that explains what part of Title IX conflicts with what religious tenet.

Fourth -- and this was completely missing from the story -- since 1976, OCR has handed out these religious exemptions like candy.  Not one single exemption request has ever been denied. Even the previous administration granted all the exemption requests it received from Christian colleges seeking to preserve their right to discriminate against LGBT students.  There is absolutely no reason to think that OCR would pick this moment to break with 40+ years of precedent and start denying or revoking those exemption requests.

The framing of this story bothered me because the current administration has done everything it can to support religious freedom, and everything it can to roll back LGBT civil rights. Yet somehow the narrative of this story is that the civil rights of religious institutions are the ones at risk.  This is exactly what the right wing media does when it reports, for example, on the imaginary war on Christmas.  I hoped for better from mainstream media.