Monday, May 11, 2020

New rules issued, Part I: The exemptions

Secretary of Education Betsey DeVos released the long awaited changes to Title IX, set to go into effect in August. There are many things to be concerned about, but given that we are all doing our best to manage all the concerns we're facing these days, I am going focus on just one today: the provision that coaches are not mandatory reporters of sexual assault.

This change is horribly unethical, dangerous, and inconsistent.

First, the rule change--which the Department of Education has said is legally binding, going against precedent regarding Title IX rule changes in the last decade--also potentially includes faculty and staff, in and outside of athletics departments. Schools will get to choose who is a mandatory reporter. Some say most schools will not change current rules about everyone (except counselors and members of the clergy) being mandatory reporters. But I think it is striking that coaches and other members of athletics departments were specifically singled out as potentially being exempt. The new rule says only that Title IX coordinators and others with "authority to institute corrective measures" are required reporters. (I address that categorization below.)

The specific choice to potentially exempt coaches is inconsistent with common practice about mandatory reporting. Coaches are mandatory reporters of abuse at the youth and high school levels because part of their job is maintaining the welfare of children. At the college level, we are not dealing with children (legally speaking), but coaches have a responsibility for the welfare of their students and the students within their communities, i.e., college campuses.

I do not know if this rule change is about the perception that college sports are minor leagues/semi-professional and thus the coach is merely an employee rather than a contributing member of an educational community. But I find it hard to justify that coaches are so different and/or detached that they can be released from this responsibility that the majority of other employees have.

To be clear, this is a responsibility that I believe members of the academic community should have and exempting faculty and staff would also be wrong. It is part of the job. It requires actual labor in the form of mandatory training. While employees often bemoan this training because on college campuses many see it is as uncompensated labor (a not unreasonable assessment based on my experiences because of the way it is presented), it is both ethically necessary and educational.

This is because, in addition to the educational mission, colleges and universities are required to keep their students safe. We have very large rule books that outline violations of student (and employee) conduct. The rationale behind those rules--many of which do not involve illegal activity (i.e., lighting a candle in the residence halls)--is to keep individuals and the community safe.

That's it. Schools have a responsibility to keep the members of their community safe. The rule change is inconsistent with current norms and prevailing philosophies. And it is dangerous.

For one, studies and investigations are showing that athletes commit sexual violence in greater numbers than their non-athlete peers. Coaches are more likely to be the people who hear about these crimes. And now the DOE is telling them they can handle those reports however they choose.

Two, we already have evidence of the dangers of coaches who do not report. How many women and girls could have been spared the horrific abuse of Larry Nasser if the coaches who were told about his assaults on athletes at Michigan State had actually reported it? Hundreds. What about Ohio State, which just made an initial settlement with 350 former members of the OSU community? Same.

Add up the cases from all over college sports where even a single accusation went unrecorded. Given the data, we know that sexual offenders are often repeat offenders. So likely thousands of cases of sexual assault could have prevented if people had done what they were supposed to do. And now the Department of Education is saying they are not required to do that anymore. What will those numbers look like?

To have these data and not consider it is simply unethical. This is a dangerous rule change and the rationale behind it fails to consider current practices and the need for cultural change.

The DOE says that exempting coaches and others means that victims who do not want to to make official charges or trigger an investigation have a greater opportunity to do so. But good training and reporting practices already account for this. Mandatory reporters, with the right training, know where to direct students if they do not want their allegation documented. And good Title IX coordinators know how to maintain confidentiality when they receive a report.

Yes, there are many schools who do a bad job, because they do not take the issues seriously. Exempting more people from reporting is not the way to make schools behave better. It just lets them off the hook. People who are mandatory reporters ARE taking "corrective actions" when they report. They are initiating a chain of events that leads to investigations and reporting and sometimes hearings. They are illustrating that everyone on campus has a stake in this issue which is one way to change the campus climate. 

The only people protected by this rule change are those who will not be held responsible for sexual assault and those that can now legally cover up of those crimes.

Saturday, December 21, 2019

New policies and data on college athletes and sexual assault

New information about the prevalence of sexual assault committed by intercollegiate athletes came out this week via a one-year investigation by USA Today. Studying the prevalence of sexual assault in colleges has been notoriously difficult. There is widespread underreporting. Also, there are the cover-ups of reports, which we are learning more and more about in the #metoo era. The news organization encountered difficulties simply getting schools who had punished athletes to reveal that information. (More on that below.)

In short, the secrecy and shame around sexual assault continues, and it affects all of those who have been assaulted and the culture of sexual violence in which we live (I am speaking in a US context specifically). What USA Today did find, based on the data provided by 35 DI public schools was alarming though not necessarily surprising given the (few) studies that have come before.

In the past five years, NCAA athletes have been disciplined for sexual assault more than three times as often as non-athlete students. Across the 30+ schools who turned over their data to the paper, student-athletes comprise only 3% of the undergraduate population but were responsible for 9% of the sexual misconduct violations. Football players are less than 1% of the student population and were found responsible for 6% of violations. 

The data was pretty hard to come by according to the paper's own reporting on its process. (Some generously offered it for a price.) Those 35  schools represent only a 15% response rate. Lack of compliance with the paper's request for the information certainly indicates that schools do not want it known, despite the fact that all sexual misconduct violations are already reported to the government (Clery Act), just how widespread the issue of athletes and misconduct really is.

The lack of transparency, according to USA Today, puts them in the company of the Catholic Church, USA Gymnastics, and Boy Scouts of America. Several lawmakers are also upset that schools did not turn over the data as requested, so it is possible the legislature may get involved. The secrecy* affects the reporting of assaults committed by college athletes and, I think, calls into question just how effectively schools are dealing and will deal with reports when they are brought against athletes.

The other major finding from the investigation implicates the NCAA which, unsurprisingly, resents the implication(s). Student-athletes found responsible for committing sexual misconduct are not punished by the NCAA--in any way. (Remember this is the organization that punished student-athletes for selling their autographs.) Eleven of the student-athletes found responsible for sexual misconduct from the data collected (as well as 22 others whose cases were covered in the media in the last five years) transferred to other schools and continued their college athletic careers. At least one is currently in the NBA.

President Mark Emmert, when asked about what the NCAA would do in response to this new information, said that it was the responsibility of the schools to work these things out because they are the "decision makers." [pause for ironic laughter and eye rolling here] Also, he said the NCAA takes the issue of sexual assault seriously and that they spend "an enormous amount of time on the issue of the prevention of sexual assault.”

He did not give examples of what is done during all this time. But, according to the article, the NCAA's board of governors spent some of it last August failing to move forward with a recommendation from the Commission to Combat Campus Sexual Violence which urged the group to pursue legislation to deal with athletes who commit sexual and domestic violence.

Further pressed by an audience member asking if the NCAA might consider following what the SEC has done in banning transfers who have committed domestic or sexual violence Emmert responded that “all the rules are different, and all of them are complicated. It is an enormously complex issue when you look at the details of it. I think it’s an issue that’s going to routinely be discussed and debated widely.”

This is the organization that a month ago--after decades of failing to consider meaningful ways to remedy the exploitation of student athletes--said it would allow them to earn money off their images. So threat of lawsuit and the demise of the organization makes them take "complicated" things and act very swiftly on them. I have been waiting for the moment when someone who has been sexually assaulted by a student-athlete who had a known past history would sue the NCAA. With the current publicity, and the NCAA's weakened state after the California law, it seems like the right time for the right lawyer to at least pursue holding the NCAA partly responsible for this problem. Because despite Emmert's protestations, they are indeed a key decision (and culture) maker. Though the NCAA is not subject to Title IX and the deliberate indifference standard, what they are (not) doing now is certainly indifference.

* Privacy rights afforded by FERPA do not apply to settled cases in which the responding individual was found in violation of school policy. om releasing the results of hearings in which students were found in violation of college policies. These records can include the offending student's name, the violation, and the sanction. The reporting individual's name is never revealed.

Tuesday, September 03, 2019

Studying participation

I am unclear about what motivated this article out of Omaha about the participation of high school girls in sports, but it fails to understand Title IX, its philosophical foundations and application, in ways that I have seen since we began this blog over a decade ago. I will discuss a few of these at the end of this post, but I want to begin with what really struck me about this very short article. First, we need to start having conversations about how the philosophy and practice of high school sports has changed since Title IX was enacted and how these changes may or do affect opportunities, interest, and treatment. Second, I want to consider what it might look like to measure interest differently.

Starting with the latter: the article repeatedly talks about the interests of girls. It asks whether girls are less interested in sports. Again not a new question. And then suggests that Title IX isn't really fair if girls are just less interested in sports and though it does not definitively conclude that they are less interested, the author does cite some numbers about the plateauing of the participation rates.

So while the author does not say these numbers indicate lack of interest (small kudos), there is the assumption that the greater number of boys who participate does indicate interest. This, I argue, is a false assumption. Are boys who play actually interested in playing? Granted, Title IX mandates equitable opportunities for the historically underrepresented sex so we look to girls to see if they are interested as one measure of equity. (More on this below.) But why aren't we studying how interested boys really are? We have discussed how stereotypes about female athletes can affect participation but what about stereotypes about boys who don't play sports? Are the numbers of boys playing actually overinflated because we assume that their participation equals interest whereas for girls we look at other things that affect (lack of) participation. In short, let's add some nuance to these research questions.

To my first point above, we need to start looking at how the changes in the culture of high school sports has affected participation. In the era of specialization and the obsessive quest for the college scholarship, high school sports are becoming less and less about participation and skill-building and fun and enhancing the educational experience. Maybe this is not the environment some students desire and so they choose different extracurriculars. But who chooses not to participate in high school sports because of the ultra-competitive environment is influenced by the culture. What are the other opportunities? Do these other opportunities bring similar or greater amounts of cultural and social capital? These questions have different answers based on one's gender and race and class and ability and religion (and other identity factors). How will we (or should we) consider these when we talk about what is fair in regard to the distribution of opportunities?

One critique of the article, including the one law professor expert the author uses, is related to this concept of fair. The standard of fairness that Title IX uses is equity--not strict equality. And it has specific measures in place to determine equity in regard to opportunities--none of which are a 50/50 division. Equal distribution of opportunities is not even a goal of Title IX, despite what the law professor says. Fairness is not always about equality; arguably what is fair is rarely about what is equal.

Overall the article fails to understand this, the philosophy of the law, and its history; including the fact that Title IX was not not enforced for much of the 80s and the effects of lack of enforcement have lingered and are nearly impossible to measure. This is made all the more impossible by the fact that high schools are not required to report their participation numbers and thus their compliance is only challenged (via complaint and/or lawsuit) rather than monitored. Is that fair??

Friday, August 30, 2019

Study shows benefits of “preponderance of evidence” standard, including better accuracy

Against the backdrop of the Trump administration’s pending changes to Title IX regulations, William Kidder posted a new article in the Journal of College & University Law that delves deeply into social policy questions around the standard of evidence (“preponderance of evidence” or “clear and convincing” evidence) in Title IX and other contexts. Among his key findings noted in the abstract:
[T]he main tendency if campuses were to shift to the clear and convincing evidence standard in Title IX adjudications would likely be a net decrease in accuracy because the rise in “false negative” errors(student or employee commits sexual misconduct but is found not responsible) would outnumber the corresponding decrease in “false positive errors."

[T]he clear and convincing standard would also make it more difficult – other things being equal – for campuses to impose disciplinary accountability in cases of serial sexual misconduct and serial sexual harassment.
The article also reviewed other, similar adjudicatory contexts, such as U.S. federal civil rights adjudications, faculty research misconduct cases linked to federal research grants, civil anti-fraud proceedings, attorney debarment/discipline cases and physician misconduct/license cases, to determine which standard of evidence is used. The author found that in a large majority of these areas, preponderance of evidence is used as the standard of evidence.

Tuesday, June 11, 2019

Indiana Transgender Student Entitled To Damages in Bathroom Case

A federal court in Indiana ruled in favor of a transgender student's motion for summary judgment against a school district whose policies did not permit him to use the facilities that matched his gender identity. After the Seventh Circuit's decision in Whitaker, it is not terribly surprising that a court in that district court would have no trouble applying Title IX in a transgender student's favor -- and indeed, the court in this case had already granted the plaintiff a preliminary injunction ordering the school to let him use the men's room. But the court's most recent decision went beyond the injunction question, is notable for confirming that the district is indeed liable for money damages to compensate the plaintiff for harm caused by its policy of exclusion (though the court deferred to a jury the fact-laden question of when exactly the student's damages began to accrue).

In reaching this conclusion, the court had to address defendant Evansville Vanderburgh School Corporation's argument that the plaintiff had not done enough to put the school district on notice of his right to use the boys' bathroom. Until he filed this lawsuit at the end of his junior year, school officials arguably did not know, for example, that the plaintiff found the gender-neutral option available to him unsatisfactory, that he had begun to transition using hormones, and that he was limiting his water intake to avoid needing to use any bathroom at school. But the court said such notice is not required to establish liability. The uncontested facts were that the school's policy did not permit him to use the proper bathroom and so his rights were violated. ("EVSC has failed to point to any facts by which a reasonable factfinder could determine that it had any policy other than one requiring transgender students to use a bathroom that did not conform with their gender identify. In sum, EVSC’s practice violated Title IX. The violation occurred regardless of whether EVSC knew that J.A.W. or any other student was affected by its policy."). Moreover, the school's policy is an act of intentional discrimination, liability for money damages exists without regard to the actual notice plus deliberate indifference standard that applies when the harm to the plaintiff is caused by someone other than the defendant.

The court also ruled that the school board's policy violated the Constitution's Equal Protection clause.  Heightened scrutiny applies because the policy cannot be read without referencing the plaintiff's sex, and school "put forth no justification for its practice in its summary judgment briefing."

 J.A.W. v. Evansville Vanderburgh School Corp., No. 3:18-CV-37-WTL-MPB, 2019 WL 2411342 (S.D. Ind. June 7, 2019).

Wednesday, June 05, 2019

Ninth Circuit Affirms Dismissal of Anti-Male Bias Claims Against University of Oregon

One of the most interesting and important procedural questions to arise from the spate of Title IX challenges brought by students disciplined for sexual misconduct relates to the pleading standard that courts should use to evaluate their sex discrimination claims. It's essentially a question of how much and what kind of detail plaintiffs need to put in their complaint in order to initiate litigation challenging that their punishments were tainted by anti-male bias prohibited by Title IX. Too little detail and the case is dismissed before it really begins. Enough detail, and the parties proceed with the discovery phase of litigation before having another chance to get the case dismissed before trial.

"How much detail should a plaintiff be required to plead?" is a question with a lot riding on it. On the one hand, it's not fair to require plaintiffs to plead a lot of detail since this question comes up early in the litigation before the plaintiff has had a chance to take depositions, request documents, and demand answers to interrogatories--all of which happen at the discovery phrase. On the other hand, if the standard is too lenient, plaintiffs can force defendants into litigation without any real basis for doing so. If every student who is disciplined for sexual misconduct can draw a university into expensive and time-consuming discovery, universities might be reluctant to discipline them in the first place, placing other students at risk. Lower courts called upon to strike this balance have been vexed by the seeming mixed messages sent by the Supreme Court. In 2002, it affirmed that discrimination plaintiffs follow the normal rules of civil procedure, which requires only a "a short and plain statement of the claim showing that the pleader is entitled to relief” (and thus refused to incorporate into the pleading requirements the elements of the McDonnell-Douglas framework, which creates a rebuttable presumption that the defendant was motivated by bias, where other obvious explanations have been ruled out). But in later cases, the Court held that pleadings need to be supported by sufficient facts that the render the claim plausible on its face; bare conclusory allegations are not enough. 

In Title IX discipline cases, plaintiffs frequently allege that the university committed procedural or substantive errors in their case specifically because university officials were biased against men. They often allege as the basis for this conclusion that the university is facing political and social pressure to curb sexual misconduct. Some courts, most notably the Second Circuit Court of Appeals, has accepted this kind of pleading as sufficient, reasoning that it's a plausible basis for anti-male bias. Yesterday, the Ninth Circuit Court of Appeals took the opposite view. In a case against the University of Oregon, three male former basketball players alleged that the university engaged in unlawful sex discrimination when it suspended them and revoked their athletic scholarships for engaging in nonconsensual sex with a female student (they also alleged due process violations, which were also dismissed). But the court rejected that the alleged fact of the University president’s speech, in which he condemned the plaintiffs' misconduct prior to their hearing, and referred to the complainant as a "survivor", as well as campus protests surrounding the case, was a plausible basis for concluding that anti-male bias (as opposed to anti-respondent bias) tainted the disciplinary process. Notably, the plaintiffs did not plead any facts connecting the speech or the protests and University’s disciplinary actions "to the fact that the student athletes are male." The court also rejected that pleading that "the University disciplines male students for sexual misconduct but never female students" is a plausible basis for concluding that the university could be biased against men, since it fails to contextualize this fact with any suggestion that female University students are similarly situated, i.e., that they have been accused of comparable misconduct.

The Second and the Ninth Circuit's disagreement essentially boils down to whether being accused of sexual misconduct is so intrinsically tied to maleness that bias against the former is evidence of bias against the latter. In my opinion it makes sense to distinguish between conduct and status as the Ninth Circuit does. It will be interesting to see if this Circuit split endures and whether this issue about pleading pushes Title IX to the Supreme Court's docket once again.

Austin v. Univ. of Oregon, No. 17-35559, 2019 WL 2347380 (9th Cir. June 4, 2019).

Wednesday, May 29, 2019

Supreme Court Won't Hear Challenging to School's Transgender-Inclusive Bathroom Policy

Yesterday the Supreme Court denied a petition for certiorari that, had it been granted, would have led the Court to review a Third Circuit appellate court ruling that upheld a Pennsylvania school district's policy of allowing transgender students to use restrooms and lockers in an inclusive manner, consistent with their gender identities. Students and parents who disagree with the policy had challenged it as a violation of the students' constitutional right to privacy, as well as under Title IX. By denying the petition, the Court ensures that the appellate ruling in the school's favor will stand.

This is good news for transgender students because it means there is no chance, in the near future anyway, that the Supreme Court will undermine this and other lower court rulings that uphold schools' inclusive bathroom and restroom policies. For now, while school districts will likely continue to face similar challenges, appellate courts will be free to construe the Constitution's due process clause, as well as Title IX, in support of the same conclusion as was reached by the Third Circuit, that neither source of law creates a right that is violated when schools adopt a gender-inclusive bathroom/locker room policy. Specifically, the Third Circuit agreed with the lower court that the student-plaintiff's privacy rights were not violated by sharing facilities with transgender students, and even if they were, "the state had a compelling interest in not discriminating against transgender students" to which the district's policy was narrowly tailored. The appellate court also endorsed the lower court's conclusions that the policy did not violate Title IX claim because (1) it applied equally to all students regardless of their sex and gender identity (2) "the mere presence of a transgender student in a locker room should not be objectively offensive to a reasonable person given the safeguards of the school’s policy."

Yet this good news accompanies concern arising from the Supreme Court's granting of cert last month in a Title VII employment discrimination case that will give the Court the opportunity to settle whether the law protects transgender employees from discrimination, either on the rationale that discriminating against someone's transgender status is a form of sex discrimination (since such discrimination targets someone because their sex and their gender are not aligned) or on the rationale that sex discrimination includes discriminating against someone whose gender identity and expression does not conform to stereotypes associated with that person's sex.  Since both of these theories have been used to support the rights of transgender students under Title IX to access bathrooms and locker rooms according to their gender identities, a negative outcome in the Title VII case could put Title IX cases in jeopardy (though Equal Protection claims, which have also been found to support transgender students' rights, would not be as directly affected.)  In other words, what the Court may be signaling by granting cert in case asserting transgender person's civil rights but denying it in a case challenging the accommodation of a transgender person's civil rights is that inclusive policies like the school district's here are legal, but not required. We will just have to see what the Court does next Term.

Doe by through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 525 (3d Cir. 2018), cert. denied, No. 18-658, 2019 WL 2257330 (U.S. May 28, 2019)

Sunday, May 26, 2019

Baylor update

I won't bury the lede here: Art Briles has a coaching job.

Though to be fair he actually is already coaching. He has a job in Italy as head coach of Florence’s Italian Football League team. (I am pretty sure they mean American football and not soccer. It must get very confusing when he tells any non-American what he does and where he is doing it.)

I am not sure what the Italian Football League is, who plays in it, what level of football it is. I am not sure how or when he got this job. I am not sure how much it all matters because Briles is coming back to the US--back to Texas in fact, where he will coach high school football.

High school football.

In Texas.

Art Briles.

The Mt Vernon school board unanimously approved him. They must think it is a coup. Or that enough time has passed. I don't know. I am still in shock that people (as in more than one person) thinks it is ok for the man who assisted in the cover-up of sexual assault by his own players should have a job coaching teenagers. [Former Baylor quarterback Robert Griffin III is supporting Briles's "second chance."] Some will say this is the start of his climb back up the ladder. I will ask: why wasn't that ladder burned down?

[EDIT: I see that I missed this article from March about the job in Italy. There are two former Baylor players on that team and they continue to support Briles who continues to say he knew of no criminal activity committed by his players. Briles's comment to the reporter about the Baylor scandal: "Do I think it'll ever go away? Gosh, I hope. Of course, I don't know. I spend a lot of time in the present."]

When Briles had a head coaching job for about two second with a pro team in Canada, someone realized the problem with that and took it away. But that was Canada, and this is Texas. From what my students who watch Friday Night Tykes tell me, Texas football (at least as it is portrayed on this "reality show") is equivalent to child abuse. So there is a "logic" one might argue in Art Briles getting this particular job.

And it might be important to note that Briles has coached high school before; in Stephenville, Texas in the 1990s. One of his players was accused of raping a female student there. The girl's father reported it to Briles who said said he didn't know what the father wanted him to do about it, calling it a "he said/she said" case. Not much seems to have changed. 

In other Baylor news:

Lawyers representing 15 women are trying to get the law firm Pepper Hamilton to release their report on the scandal. Previously, many believed that the board of regents at Baylor drafted a report based on the recommendations made by Pepper Hamilton. But it turns out the law firm wrote a report and summary. Connected to the lack of documentation, plaintiffs lawyers are none too pleased that the school is turning over relevant emails (that's how they found out about the PH report) two years after the initial subpoena for documents.

A new(er) accusation against the school came from an assault in fall 2017--so after Briles left and as Baylor continued to vehemently argue that there was no sexually hostile climate at its school. A female athlete is accusing the school of mishandling her accusation of sexual assault against two football players. The woman's friends had apparently joked with her about not getting raped by football players. [1. Not funny and 2. see above about sexually hostile climate.] In the lawsuit, the plaintiff claims she was victim-shamed by the Title IX office. One of two men was found in violation and expelled from Baylor and the school claims all parties involved in the incident are no longer at Baylor and that they followed the correct procedures in its investigation and sanctioning. So things seem a little unclear, though the main contention, based on what I read, is how the victim was treated by the Title IX office and the information that was shared about her and the incident during the investigation.

Why this matters:
Well of course because: Briles should not be coaching; sexual assault is wrong; systematic cover ups of sexual assault is also wrong; not addressing a sexually hostile climate is illegal.

But the news of Briles's new job came out just as I finished the spring semester during which I taught sports ethics and sport and society. In all my courses we read Sexual Coercion Practices Among Undergraduate Male Recreational Athletes, Intercollegiate Athletes, and Non-Athletes. (I've written about this piece before.)

This semester I had a handful of students write in their margin notes: what about a study of female athletes assaulting men? Or asking why the survey the authors used did not use female athletes and ask them about their history of sexual coercion. In an essay about the ethical issues around sexual violence, a student argued that the punishment for false reporting of rape should be the same as the punishment for rape and that the issue of false reporting against athletes was practically an epidemic. This was a class in which they researched the scandal at Baylor. Briles's seeming redemption is not going to help people take this issue more seriously. There is the perception that he is being punished (he is--rightly so) and that he is the fall guy (probably also true). The fall guy role is especially damaging in getting people to take this situation (at Baylor and more generally) seriously. The redemption this football coach gets is fueled by the same attitude that let all those players go (largely) unpunished by the school and all those victims suffer.

Thursday, May 09, 2019

No Summary Judgment in Lock Haven University Athletics Case

A federal court in Pennsylvania denied parties' motions for summary judgment in a case challenging gender-based inequities in athletic opportunities at Lock Haven University. The university had announced plans to terminate its women's swim team and demote field hockey to Division II.

The evidence in the case allowed the court to rule as a matter of law that Lock Haven did not satisfy either of the first two parts of the three-part test for effective accommodation. Though "only" 3.36 percentage points separated the percent of athletic opportunities for female students (52.18%) and the percent of female students in the student body (55.54%) , the court acknowledged this translates to 36 athletic opportunities, a number not too small to support a new varsity team. Nor did evidence show a history of continuing practice for adding opportunities in women's sports, since Lock Haven both added and ended women's teams in the past and also denied requests from club teams for elevation to varsity status.

But the court could not decide as a matter of law, without the benefit of trial, whether Lock Haven satisfied part three. It has not yet in fact terminated the swim team, so it has not created the situation that would automatically render it out of compliance with the satisfied interests test. That left the court to consider conflicting evidence: on the one hand repeated requests from the women's club rugby team requesting elevation to varsity status, and on the other hand, survey data suggesting female students' interests in additional athletic opportunities is low. So the court withheld summary judgment on this issue and deferred it to trial.  It also saved for trial the question of whether demoting the field hockey team to Division II would violate Title IX, since it hasn't happened yet and Lock Haven claims to have withdrawn that idea from consideration. The plaintiffs' equal treatment claims also raised too many issues of disputed fact to warrant summary judgment for either side.

Last, the court addressed whether this case could proceed as a class action purporting to represent "all present, prospective, and future University female students who participate, seek to participate, or have been deterred or prevented from participating in or obtaining the benefits of intercollegiate athletics at Lock Haven University." Class certification is helpful to plaintiffs especially in Title IX cases because it keeps the case from becoming moot when the current student-plaintiffs graduate.  Here, the court rejected class certification of such a broad class, noting that the named plaintiffs, who are members of the swim, field hockey, and club rugby team, are differently situated from each other and from other present and future students with respect to the remedies they would favor. But the court permitted the plaintiffs to request certification of three subclasses, each purporting to represent the present and future potential members of each team. 

Theoretically, then, the next step in this case is for the plaintiffs to repropose their class certification request, and for the court to schedule trial. I admit, though, I'd be highly surprised to see an actual trial in this case. I think a decision to drop swimming would be impossible to defend unless the university first closes the proportionality gap, and it should be clear that it can't elevate a men's team (wrestling) to Division I and offer no similar benefit to any women's team. Moreover, Lock Haven also argues that it is close to complying with proportionality. Given all this, I'd bet the parties would be more likely to settle than to engage in an expensive and time-consuming trial. 

Robb v. Lock Haven Univ. of Pennsylvania, No. 4:17-CV-00964, 2019 WL 2005636 (M.D. Pa. May 7, 2019).

Friday, April 26, 2019

OCR Is Still Enforcing Title IX, and Noncompliance Still Abounds

Investigating the Department of Education's Office for Civil Rights Title IX enforcement records, journalist Tyler Kingkade discovered that the agency has a resolved at least 70 cases and found many problems with the sexual misconduct policies and practices of school districts, colleges and universities. In higher education, examples of violations included things like unjustifiable delay and other impairment of the complainants' rights, but even more alarming problems were discovered in the agency's investigations into institutions at the K-12 level. Kingkade found that six school districts didn't even investigate sexual misconduct at all.  One major metropolitan school district, in District of Columbia, simply files incident reports with local law enforcement. Elsewhere in the country are examples of school districts whose Title IX coordinators haven't worked on any sexual misconduct issues in the last 11 years, and another whose principal only calls the Title IX coordinator for complaints about equity in sports.  Kingkade reports several examples of egregious sexual misconduct -- some perpetrated by teachers, others by students -- that school districts knew about but failed to investigate or provide help to the victims.

These findings are important to highlight for a couple of reasons. First, they remind us that we shouldn't leave school districts out of the public and political scrutiny that colleges and universities already receive on these issues. Second, it's proof that Title IX continues to be necessary to challenge the lack of attention that school and university administrators give to sexual misconduct cases. This disconnect was noted in the article by former OCR Director Catherine Lhamon, who said, "The department is still documenting very serious sexual violence and unbelievable harm to students today in school, [but] its policy arm is telling schools to stop looking for that...The need is exponentially higher, and OCR is turning in the other direction."  If the agency follows through on its proposed regulations focused campus hearing due process and narrowing the scope of misconduct that falls under Title IX, it will be hard to reconcile those changes with the pattern of problems that its own enforcement efforts continue to reveal.

Wednesday, April 17, 2019

Morehouse Opens Admission to Transgender Men, but Will Expel Students Who Transition to Female

I was pleased to read that all-male HBCU Morehouse College has opened its admission to transgender men. But the policy also requires all students admitted to Morehouse to identify as male for the duration of their education there, saying that any student who transitions from male to female "will not be eligible to matriculate." This part of the policy is cruel and unlawful. Like the military ban, it will force people to suppress or hide their gender identities, since coming out risks rejection from the community and having to start over in another setting. It is unlawful because despite the Department of Education's backpedaling on this view, federal courts are continuing to view Title IX to prohibit discrimination against transgender students. Assuming that Title IX applies in this manner, it would be unlawful for any school that receives federal funds to expel a student because they are transgender.

Morehouse and other single-sex colleges are not exempt from this application of Title IX.  Private undergraduate institutions are exempt from Title IX in their admissions policy, which is how we have single-sex private colleges in the first place. But expulsion decisions are not admissions decisions and are not covered by the exemption for admissions.

Unfortunately, Morehouse isn't the only single-sex institution with policies that threaten expulsion to students who come to terms with their gender identity after they have enrolled. In 2011, I made this same argument about a women's college in Virginia when it adopted a policy to expel any student who transitions to male while they are enrolled. Hollins College continues to defend this policy on the grounds that Title IX does not cover transgender students. Since 2011, however, federal courts such as the Seventh Circuit as well as district courts in Florida, Ohio, Pennsylvania and others have ruled that it does, calling into question the legality of Hollins' policy, as well as now Morehouse's.

However, in contrast to Morehouse, its sister school Spelman has a transgender-inclusive admissions policy that states, "If a woman is admitted and transitions to male while a student at Spelman, the College will permit that student to continue to matriculate at and graduate from Spelman."

Tuesday, April 16, 2019

Sixth Circuit Calls Off EMU's Reinstatement of Softball

The Sixth Circuit Court of Appeals has reportedly granted a stay that pauses a district court's order that Eastern Michigan University reinstate its women's softball team. As we blogged about last fall, the district court granted a preliminary injunction that would prevent the university from terminating softball along with the women's tennis team because the cuts would leave EMU in violation of all three prongs of  Title IX's test for compliance in the number of athletic activities available to each sex. Then in February EMU went back to the district court with a plan to add lacrosse instead, which the court rejected, ordering the university to hire a softball coach by April 1 and start planning for competition next season. Though the university reinstated tennis, it petitioned the appellate court to stay the district court's order.  

The Sixth Circuit Court of Appeals granted the requested stay, reasoning that Title IX requires equity in the availability of athletic opportunities overall, but does not require a university to support particular teams. Either proportionality or the absence of unmet interest among women (as the underrepresented sex) could satisfy the law's equity requirement, so the EMU could theoretically demonstrate Title IX compliance by adding or expanding women's opportunities in sports other than softball.

While I agree that Title IX doesn't require EMU to carry any particular sport, I have two concerns about using that rationale to undermine the court's injunction against cutting softball. First, will substituting softball with lacrosse bring the university into proportionality compliance? Because the fact that softball players are challenging the university's decision to terminate their team is evidence of unmet interest, so prong three is off the table.

Second, even if lacrosse-for-softball does bring the university into proportionality compliance, the timing of this is all wrong. Without softball, the university is out of compliance *right now* because of unmet interest. That's why the district court enjoined the cuts. If the university wanted to replace softball with lacrosse, it should have added lacrosse first to attain proportionality, then cut softball. If district courts can't effectively prevent unlawful cuts from happening before they happen, then Title IX loses whatever teeth it has to keep universities accountable for equity in athletics. EMU seems to be getting away with noncompliance here, so what's to stop other universities from taking the same "cut now, comply later" approach? 

Tuesday, April 09, 2019

Parents May Continue to Litigate Title IX Challenge to High School's Transgender Inclusive Locker Room Policy

A district court in Illinois issued a ruling yesterday on a school district's motion to dismiss the various claims in a lawsuit filed by parents challenging its policy of permitting transgender students to use facilities that correspond to their gender identities.  The parents claim that their daughters have been upset and humiliated by having to share girls' locker rooms with other female students who have male anatomy. One parent alleges that the school denied her request to allow her daughter to access a private changing facility, and another that the school failed to investigate or remediate a situation where her daughter was exposed to another student's penis.

The court dismissed plaintiffs' claims that the school's transgender-inclusive facilities violate their daughters' constitutional rights to due process (bodily integrity) and religious freedom, as well as the parents' constitutional rights to autonomy in raising their children. But the court allowed the plaintiffs to continue to litigate their claim that the school district has violated their daughters' rights under Title IX. The court agreed that the plaintiffs had adequately alleged sexual harassment, of which the school had notice and responded to with deliberate indifference. The court noted that the Seventh Circuit has allowed harassment claims under Title VI and Title VII to survive motions to dismiss that minimally plead the elements of a harassment claim. These cases establish the pleading standard for Title IX harassment cases as well, and the details in the plaintiffs' complaint surpasses this low bar.

This ruling is the first of its kind in a transgender bathroom case, though importantly, the court was careful to point out its limited scope and preliminary nature --  noting that whether the plaintiffs "can ultimately prevail on this claim is a question for another day." I also think it's premature to worry that this case will somehow dismantle the trend in favor Title IX's protection of transgender students' rights by creating an inherent conflict between transgender students' rights and the rights of other students to be free of a sexual harassment. One possible outcome is that once the plaintiffs are required to supply evidence in support of their claims, they will not be able to establish as a general matter that the prospect of encountering a transgender student in a locker room is harassment that is severe or pervasive and objectively offensive.  It's also possible that the parents could win on very narrow grounds that still respects the school's policy of inclusion, but finds it marginally at fault for not doing more to accommodate all students' right to privacy, such as by making locker room alternatives available to anyone who is not comfortable in communal changing space. Either of these two possibilities seem much more likely than a court order enjoining the school from permitting transgender students to use the facilities that correspond to their gender identity, which even after this preliminary ruling in the parents' favor, still seems unlikely and far-fetched to me.

Decision: Students and Parents for Privacy v. School Directors of Township High School District 211, No. 16C 4945 (N.D. Ill. Mar. 29, 2019).

Tuesday, April 02, 2019

Plaintiffs Win Dress Code Challenge with Equal Protection Argument

An Equal Protection challenge to a public charter school's gendered dress code recently survived summary judgment. But the court dismissed the plaintiff's Title IX claim. As we noted in an earlier post about this case, the plaintiffs are a group of parents suing Charter Day School on behalf of their female children to challenge the school's dress code policy that prohibits girls from wearing pants. The school's uniform policy is part of its mission as a "traditional values charter school." Boys can wear pants or shorts while girls are restricted to skirts.

The court granted the school's motion to dismiss the plaintiff's claim that the dress code violated Title IX after concluding that Title IX does not prohibit schools from imposing gender-specific dress codes. The court based its conclusion on the fact that the original Title IX implementing regulations (promulgated by Department of Education's predecessor agency, HEW) contained a provision prohibiting gendered dress codes, but amended the regulations in 1982 to remove this provision. The court interprets this absence of a prohibition as an express permission to maintain gendered dress codes and extended judicial deference to this interpretation of the regs.  Interestingly, even though the court cited the agency's stated rationale for striking the prohibition on gendered dress codes from the regs -- to allow the agency to focus its enforcement efforts on other Title IX issues -- it failed to acknowledge that this rationale is in no way conflicted by judicial enforcement of Title IX to prohibit gendered dress codes. Title IX is a general prohibition on all sex discrimination that is not expressly excluded from the statute's scope. As such, I believe that the court should have entertained the argument that the dress code constituted unlawful sex discrimination in violation of Title IX.

Fortunately, though, the plaintiffs fared better on their second argument that the dress code violated the Equal Protection Clause, which applies to the policies of a public charter school. Without rejected the idea that a stricter version of intermediate scrutiny might apply, the court determined that the dress code did not even survive the more lenient "comparable burdens" test that is sometimes used for dress codes.The court noted that the requirement for boys to wear pants (and not skirts) is consistent with community norms, but the requirement for girls to wear skirts (and not pants) is inconsistent with community norms. ("Women (and girls) have, for at least several decades, routinely worn pants and skirts in various settings, including professional settings and school settings. Females have been allowed to wear trousers or pants in all but the most formal or conservative settings since the 1970s. According to plaintiffs' expert, most public school dress codes across the country allowed girls to wear pants or shorts by the mid 1980s.")  Though the school argued that the gendered dress code provides students with a "visual cue" that promotes respect between the sexes and thus serves an important purpose, the court did not see any evidence that the requirement actually promoted this goal. For one thing, the dress code requirement is lifted on certain days, for special events or because of phys ed, and it does not appear that boys and girls treat each other with less respect on those days.

The school board is reportedly in the process of "discussing its options" for how to proceed in the face of the court's ruling. Realistically, this means choosing between appealing the court's ruling to the federal appellate court, or agreeing to change the policy in exchange for the plaintiffs dropping the case.