Saturday, October 14, 2017

Members of Congress Introduce Bill to Restore Withdrawn Guidance

Members of Congress announced this week that they have proposed a bill that aims to codify aspects of the Obama administration's 2011 Dear Colleague Letter and related guidance that was withdrawn by the Department of Education last month. It would also codify some of language in the Title IX regulations and the 2001 Guidance that the Department of Education is endorsing for now, but which could in the absence of statutory law theoretically be amended by new regulations or policy interpretations promulgated in the future.

The bill, authored by Representative Jackie Speier (D-CA) is called the Title IX Protection Act (H.R. 4030), and it would require that institutions:
  • to designate a Title IX coordinator, and to disseminate a notice of nondiscrimination based on sex.
  • to adopt and publish grievance procedures providing for prompt and equitable resolution of sex discrimination complaints. Grievance procedures may include voluntary informal mechanisms (e.g., mediation) -- but not for sexual violence cases.
  • to address sexual harassment, including sexual violence, about which a responsible school employee knew or should have known. 
  • to take "immediate action" to address a hostile environment created by sexual harassment, designed to "eliminate the harassment, prevent its recurrence, and address its effects". An actionable hostile environment is one "sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program," including an isolated incident of sexual harassment if the incident is sufficiently severe, such as rape.  This requirement to take action also includes interim measures to help the complainant deal with the effects harassment and avoid contact with the perpetrator.
  • to process all complaints of sexual violence, regardless of where the conduct occurred, to determine whether the conduct occurred in the context of an education program or activity or had continuing effects on campus or in an off-campus education program or activity; this requirement applies even if law enforcement is already investigating. 
  • to use the preponderance standard of evidence to adjudicate sexual misconduct matters --this had been a key requirement of the 2011 Dear Colleague Letter, but one that the current administration abandoned when it permitted institutions to substitute the higher clear and convincing evidence standard.
  • to provide symmetrical procedural rights to both the respondent and complainant, including the right to attend the hearing, to present relevant witnesses and other evidence, to access to information that will be used at the hearing, to be accompanied by an advisor, and to appeal the initial decision. 
  • to permit cross-examination by a third-party -- in order to minimize the potential trauma or intimidation to the complainant of being questioned by the person they have accused of sexual violence.
  • in cases where the complainant requests confidentiality (thus limiting the school's ability to discipline the alleged harasser), to "pursue other steps to limit the effects of the alleged harassment and prevent its recurrence."
  • to conclude investigations approximately 60 calendar days, with an exception for cases involving multiple incidents with multiple complainants or where there is a parallel criminal investigation.
Unfortunately, it is difficult to imagine this bill getting much traction in Congress in this political climate. Nevertheless, I believe this bill is valuable because it can serve as a focal point for political activism. It may produce a legislative record that could influence the political debate ongoing in general and in particular in the Department of Education as it considers revising the existing regulations and policies. Finally, the bill serves as a general reminder of the role Congress has to play in challenging the president when it disagrees with the administration's policies. 

Friday, September 29, 2017

OCR Finds State Agency Did Not Correctly Apply Title IX to Annual Reviews of Scholastic Athletic Programs

In Washington State, the state agency in charge of public schools (called the Office of the Superintendent of Public Instruction, OSPI) receives federal funding and administers some of that funding to local school districts.  As such, OSPI is required to comply with Title IX and may not aid or perpetuate discrimination by funding school districts who do not comply with Title IX. To that end, OSPI monitors the Title IX compliance of its school districts. Among other things, OSPI collects and reviews the self-evaluations that it requires school districts to annually conduct of its athletics programs' participation rates.

The Department of Education's Office for Civil Rights began an investigation into OSPI's Title IX monitoring process in 2011, after receiving hundreds of complaints about Title IX violations in Washington's public schools' athletics programs. This week OCR announced its conclusion that OSPI was not properly applying the three-part test when reviewing the school districts' self-evaluations of compliance.

The three-part test requires an athletic program subject to Title IX to either (1) ensure that percentage of athletic opportunities for each sex is substantially proportionate to the percentage of each sex in the student body; OR (2) that the program has a history and continuing practice of expanding opportunities for the underrepresented sex; OR (3) that the interests and abilities of the underrepresented sex are being met.

OCR did not find any problems with how the OSPI was applying parts 2 or 3, but it did find fault with the way it determined compliance with part 1. In particular, OSPI only found that schools failed to comply with this part if it would have taken more than 15-20 (depending on the size of the school) new opportunities for the underrepresented sex to bring the school into proportionality. In contrast, OCR has said that except when disproportionality is caused by natural fluctuations in enrollment, the only time a school does not have to be in exact proportionality is if the number of new opportunities needed to reach proportionality is smaller than the number needed for any new viable team. 

Given that there are lots of sports that can run with 15 or fewer students, it is not surprising that OCR found "some instances" where OSPI "perpetuated discrimination" prohibited by Title IX by permitting some school to pass the review when they should not have. OSPI is now obligated to modify its practice so that it applies the appropriate standard going forward, and is subject to monitoring by OCR to ensure it does so.

I thought this enforcement action was noteworthy because of its state-wide impact. In the past, complainants have tried to focuses OCR's attention on widespread noncompliance by filing dozens of complaints at once against school districts who do not appear to comply with the first part of the three part test. OCR has found grounds to dismiss these complaints without investigation or resolution, probably because of the practical limitations of actually conducting all of those simultaneous investigations. But if OCR keeps close track of how state agencies that distribute federal funding are applying Title IX, the agency can have still have state-wide impact. I wonder if we will see more these kinds of investigations initiated in other states.

Tuesday, September 26, 2017

6th Circuit Affirms Injunction Against Suspension of Student Whose Accuser Did Not Attend Hearing

A male student at the University of Cincinnati sued the university after was suspended for one year after a hearing panel determined he was responsible for sexual misconduct of a female classmate. He sought a preliminary injunction that would allow him to continue as a student while the merits of his case is being litigated. A district court granted that injunction, and yesterday the Sixth Circuit Court of Appeals affirmed.

To prevail on a motion for preliminary injunction, the plaintiff must demonstrate a likelihood of eventual success on the merits. Here, the Sixth Circuit agreed that the student's due process claim was likely to succeed.The hearing panel found the student responsible for sexual misconduct on the basis of the Title IX investigator's report, which contained statements by the female complainant. The female complainant, however, did not attend the hearing, and as such, was not available for cross-examination by the respondent. The respondent disputed the complainant's version of the events in question -- his testimony was that their sexual relations were consensual, and her statement, presented in the report, was that it was not. Accordingly, the deciding factor boiled down to the panel's sense of the respective parties' credibility. And because she was not present, he was not able to subject her testimony to cross-examination, which theoretically could have exposed inconsistencies or other characteristics that could have been relevant on the issue of credibility.  Thus, the appellate court determined, the plaintiff is likely to succeed on his due process claim.

The court emphasized the narrowness of its holding. It is not saying that respondents automatically win when the complainant does not attend the hearing; only in situations where credibility proves to be the deciding factor does the complainant's absence undermine due process. In cases where other evidence tips the balance, like cases with physical or video evidence, or other material witnesses who attend the trial, the complainant's absence from the hearing would not matter. Nor would it matter in case where the respondent admitted responsibility for the charge.

Additionally, the court emphasized that it is not insisting that universities permit the kind of cross-examination that one would see at a judicial trial, where the attorneys aggressively and doggedly try to fluster, undermine, and even trick the witness into saying something inconsistent with their story.  At the University of Cincinnati, the respondent's cross examination of the complainant is mediated by the panel, which accepts the respondent's proposed questions and filters out ones that are redundant or off topic. It also permits either party to attend the hearing remotely via Skype instead of in person. The court did not suggest that these methods of mitigating the potential for cross-examination to traumatize the complainant are unconstitutional. But it does insist that some opportunity for cross-examination take place before the hearing panel, in cases that turn on credibility.

Decision: Doe v. University of Cincinnati, 2017 WL 4228791 (Sept. 25, 2017).

Friday, September 22, 2017

Department of Education Withdraws 2011 Dear Colleague Letter

Today the Department of Education announced its withdrawal of the 2011 Dear Colleague Letter and related 2014 "Q&A" guidance. This decision was not a surprise as it was foreshadowed by Secretary DeVos's speech at George Mason University earlier this month. The letter announcing the withdrawal reiterates DeVos's earlier-stated intentions to conduct a notice and comment rulemaking process (though it does not specify a timeframe for this).

The letter also seeks to clarify what kind of sexual misconduct response it expects education institutions to engage in in the meantime. First, the 2011 Dear Colleague Letter's policy antecedents remain in effect; these are the 2001 Revised Sexual Harassment Guidance and the 2006 Dear Colleague Letter endorsing the 2001 Guidance.  Secondly, the regulations that the prior administration promulgated in 2014 to enforce the Clery Act are unaffected by the Dear Colleague Letter's withdrawal. Finally, the Department issued a new Q&A that will supplement the earlier guidance as a source of answers to questions about schools' obligations under Title IX to address sexual misconduct. This reiterates some of the key points under the antecedent guidance, as well as the Clery regs. Interestingly, it also adds some new requirements and retains some aspects of the withdrawn 2011 Dear Colleague Letter.  Here is my impression of the key features of today's change:

  • The Q&A continues to endorse the school's obligation to respond whenever it "knows or reasonably should have known" that an incident of sexual misconduct occurred, regardless of whether someone is filing a complaint.  To be actionable, the incident(s) must constitute "severe, persistent or pervasive" and operate to deny or limit a student's ability to participate in school programs. This is consistent with the 2001 Guidance. 
  • Like the 2001 Guidance, the new Q&A says that "it may be appropriate" for schools to take interim measures -- services and accommodations like counseling, schedule or housing modifications, extensions, etc. that institutions make to students while an investigation and grievance proceeding. The new Q&A adds, however, that interim measures may be appropriate for the responding party as well as the reporting party.
  • The requirement that schools adopt and publish a grievance procedures stems from the 2001 Guidance and is codified by the Clery regs. This requirement, as well as various characteristics that are also codified, is retained in the Q&A.  
  • That said, the new Q&A abandons the specific 60 day time frame that the 2011 Dear Colleague Letter offered as an interpretation of the existing requirement that the procedures ensure "prompt" investigation.
  • The new Q&A also abandons the 2011 Dear Colleague Letter's requirement that institutions use the preponderance standard of evidence as part of the existing requirement that procedures be "equitable." The Q&A says that institutions may use either the preponderance standard OR the clear and convincing standard. It's arguable that this is a new approach for the Department, since even prior to the 2011 Dear Colleague Letter, the agency required institutions to use the preponderance on a case-by-case basis in enforcement actions. 
  • On the other hand, the new Q&A retains the requirement that institutions provide symmetrical procedural rights to complainants and respondents (with one exception noted in the next bullet point). This was a major aspect of the 2011 Dear Colleague Letter and it put an end to the practice of holding one-sided hearings where the complainant had no role or even right to be there. Some of the symmetry principal that originated in the 2011 Dear Colleague Letter was codified in the Clery regs, including the right to receive notice of the outcome and the right to have present at the hearing an advisor of the party's choice. The Q&A does not repeal the aspects of the symmetry principle that are not so codified. 
  • The exception to the point above is the right to appeal. Whereas the 2011 Dear Colleague Letter extended the "symmetry" requirement to the right to appeal, the new Q&A permits institutions who offer a right to appeal to either offer it to both parties OR to restrict it only to the respondent.  The Q&A attributes this (vaguely) to notions of due process.  
So this is the state of things until the Department promulgates new regulations. My guess is that if we had to guess about the content of the new regulations the agency will propose, the Q&A is a good indication.   

Wednesday, September 20, 2017

Bipartisan Congressional Group Urge DeVos to Retain Preponderance Standard

In the wake of Secretary of Education Betsy DeVos's announcement earlier this month that the Department of Education plans to reconsider its interpretation of institutional responsibilities under Title IX to address sexual misconduct, I thought it was notable that yesterday a group of ten Members of Congress wrote to DeVos to urge her to retain that requirement that institution decide sexual misconduct cases using a preponderance of evidence standard.  Notably, the signatories consisted of five Republicans and five Democrats, as well as a mix of men and women. The letter argued that the preponderance standard (which asks whether there is more evidence in support of the charge against respondent than against) balances the rights of students who have or will face sexual violence against the the rights of students who are accused of sexual misconduct, over which the signatories share DeVos's concern. Preponderance is the most equitable standard, the letter maintains, because it recognizes that both complainants and respondents have a stake in the outcome. They point out that it has been favored in the past by Democratic and Republican administrations, both of which used their enforcement authority to require it of institutions long before the agency's 2011 Dear Colleague Letter publicized that aspect of the Department's interpretation of Title IX. In stark contrast to DeVos's painting of the DCL as having created a failed system, the letter points out that colleges and universities have "made great strides" to address sexual violence, thanks to the DCL and student advocates. They hope that the Secretary's upcoming process for revising it "build upon" rather than undermine this "hard won progress."

The letters signatories are:

Annie Kuster (D-NH)
Patrick Meehan (R-PA)
Jackie Speier (D-CA)
Susan Davis* (D-CA)
Ted Poe (R-TX)
Pramila Jayapal (D-WA)
Tom Reed (R-NY)
Debbie Dingell (D-MI)
Carlos Curbelo (R-FL)
Lynn Jenkins (R-KS)

* I note that Representative Davis is also a member of the House Committee on Education and the Workforce, which has authority over the Department of Education's budget. This does not give her a ton of leverage, since she is just one member of the minority party, and since DeVos would probably be fine with most any cut to the agency's budget.  But if more members of that committee are persuaded to take a stand against rolling back Title IX, and they can find a way to use finances as leverage over the Department, that is one potential way for Congress to serve as a check on the executive branch on this issue. The other option Congress has, of course, is to codify the preponderance standard, or any other aspect of Title IX that exists as regulation or subregulatory guidance, into the statute itself.

Tuesday, September 12, 2017

What has been happening at Auburn?

Well whatever has been happening, it has been happening for a few years. But news of problems within Auburn University's softball program only emerged a couple of weeks ago when a former player filed a Title IX complaint alleging that an associate coach was sexually harassing and having sexual relationships with players. But the investigation into associate head coach Corey Myers's actions by the school began in a year ago spurred by anonymous ethics complaints.

Yet Myers did not leave the program until March (he took a 2-week leave of absence when the investigation began*) when he resigned citing the need to be with his family. He is the son of head coach Clint Myers who, not coincidentally, announced his retirement right before news broke of the Title IX complaint and who also said it was due to the desire to spend time with his wife, children, and grandchildren. The elder Myers is a highly regarded figure in intercollegiate softball having coached the very successful (in terms of wins) Arizona State Sun Devils before going to Auburn in 2014. He has also worked with USA Softball.

What has been published about the harassment and conduct of the younger Myers and how it was handled by Auburn suggests a cover up. The timing of the elder Myers's retirement announcement supports that hypothesis. Also, the athletics director said in late April 2017 that he had no knowledge of an investigation. And when Clint Myers told the press in early April that he would welcome his son back to the program and a reporter asked about a Title IX investigation he seemed offended that such a thing was even brought up.

The player who filed the Title IX complaint (which included allegations of both the abuse and the cover up) was a redshirt player who was cut following the end of the 2017 season. This scenario often leads to a sour grapes defense. However, the complainant's story has been corroborated by others you played under Myers and Myers. One player, who transferred to another school, showed the media suggestive text messages sent by the younger Myers to another Auburn player (she took pics of the texts). When these texts were brought to the administration as evidence, a member of the athletic department told those seeking redress that they could be arrested for sharing those messages. So it seems the athletics department was engaging in intimidation and cover up based on this version of events. Other former players have also come forward with stories of illegal behavior and attempts to get the school to address it. 

It is clear that the situation created tension within the team. The player who was receiving the texts did not implicate Corey Meyers during the Fall 2016 investigation. This caused division among the team even into spring 2017. An incident involving an Auburn player in an altercation with University of Florida head coach Tim Walton during the post-game high-five line now has some context. She and other members did not want to ride the bus with the uncooperative player. In other words, this situation and the way the staff and the administration dealt with it caused problems within the team. To an outsider it looked like a fairly successful season with a loss to a good team.

No word on whether or when OCR will investigate.



* according to one player, team members were encouraged to go to the administration during this time and advocated for Corey Myers's return.

Thursday, September 07, 2017

DeVos Announces Notice and Comment Process for Addressing Campus Sexual Misconduct

Secretary of Education Betsy DeVos announced today that the Department of Education will commence a notice and comment process to examine the Title IX compliance standards that govern how colleges and universities handle matters of campus sexual assault. Insisting that "the era of rule by letter is over," DeVos refrained from announcing a new standard or rule today, but committed the agency to soliciting input from the public and interest groups.

In my opinion the Secretary's remarks conveyed sincere concern for students who have experienced sexual misconduct, whom she referred to as "survivors," underscoring the gravity of the problem she was discussing.  Additionally, she expressed concern for the rights of students who are accused of sexual misconduct and cited examples of cases where their procedural rights have been ignored. Her concern for both types of students was heartfelt, neutral, and difficult to disagree with.

What will surely be more controversial is how the agency will fix "the system of the prior administration," which she said, "fails too many students." Though she did not foreshadow the specifics of any new policy, her remarks give the impression that a variety of changes are on the table. For instance, the agency appears to be considering a narrower definition of sexual misconduct, as DeVos spoke with concern about instances where universities investigated trivial or accidental comments.  I also detected a tone of disdain when she spoke of the mandatory preponderance standard of evidence, which suggests that open for reconsideration as well.  I was most concerned, however, about her criticism of university officials taking on an adjudicatory role.  I hope this doesn't mean that she is considering withdrawing or limiting university's authority to adjudicate sexual misconduct like they do other disciplinary matters.  But I note that as an example of the kind of public input the agency was looking for, DeVos noted and described a law enforcement model developed by criminal prosecutors.  Could this mean she is contemplating allowing the criminal justice system to preempt university enforcement authority?  We will have to see what specifics emerge in the conversation to come.

Monday, August 28, 2017

From Texas to Canada: A Baylor Update

UPDATE: The Hamilton Tiger Cats rescinded their offer to  Briles. 

Meaning to post an update on what has been happening at Baylor in recent weeks, I was finally "inspired" by the news that former head football coach Art Briles has landed another coaching job. And all I have to say is Oh, Canada*, because Briles is now coaching in the Canadian Football League.

His title is Assistant Head Coach Offence for the Hamilton Tiger Cats.

First, I am not surprised he got another job. I am surprised it is in Canada. I thought someone in the US would hire him--probably an NFL franchise. Because what does it say about your reputation as it relates to sexual assault when no one in the NFL wants you? What remains to be seen is if this is the start of his redemption tour. Will he return to football in the US in a few years? Will he eventually be let back into intercollegiate football's ranks? Briles himself said (through his attorney) that he will be back coaching college football next year.

It is also curious that he took the CFL job given that--again according to his attorney--was offered positions by college teams. Why leave the country and coach in an lesser known league?

In news that was a little less prominent, another former Bear found a new home. Trayvon Blanchard is now playing at Texas A&M University-Commerce. He had played three seasons at Baylor before being suspended for his alleged involvement in a sexual assault. The investigation into that incident is ongoing according to his attorney. TAMU-Commerce accepted Blanchard, who will be on the field this season, even after his most recent arrest (last month) for misdemeanor assault/family violence. The university does not appear to be overly concerned with these things.Their statement:

"We welcome Travon Blanchard to our Lion Athletics family. As with any transfer, we thoroughly investigate circumstances and communicate with a wide net. We are confident that Travon walking on to our program this season is a positive step for both him and our program."

As a reminder, if TAMU-Commerce was an SEC school, this transfer would not have occurred. 

Back to what Briles left behind. In July, the university settled a lawsuit (one of six) it could not get dismissed. Since then...

It was announced this week that Baylor's Chief Operating Officer will be stepping down in the spring (at the end of the academic year). Reagan Ramsower will not be going far, however; he will move into a  position as a full professor in Baylor business school. This was the same move the university originally tried with former president Kenneth Starr. This time it may work because although Ramsower has been heavily critiqued for how he has handled the sexual assault scandal (as COO he is in charge of the Title IX Office, campus safety, and human resources), his name is less well-known. Still, being able to ride out a scandal like this and being granted a tenured position at the same school...

The beginning of Baylor's academic year also brought an additional lawsuit, filed by a Jane Doe, who is alleging she was sexually assaulted last spring (April) and that the university responded with indifference--and beyond. The allegations in the lawsuit--if found to be true--show that the school has not taken steps to improve its response to campus sexual assault and that the way it approaches victims remains hostile. Some "highlights": during the investigation the victim was asked what she was wearing and how much alcohol she had consumed; the investigation found that the assailant lied about sexual activity occurring but nonetheless found him not responsible because it was reasonable that he believed he has consent even though the victim was in and out of consciousness. Doe wanted to appeal the result and attempted to ask the Title IX office questions to which they did not respond before the deadline for filing an appeal had passed at which point they refused, according to the lawsuit, to extend the deadline. In short, as Baylor talks about how it is implementing the 105 recommendations that came from the Pepper Hamilton report (the external investigation the university commissioned), it is not actually doing anything on the (proverbial) ground.

Another setback for Baylor as it continues to contend with multiple lawsuits and a dozen plaintiffs came a few weeks ago when a judge ruled that plaintiffs' lawyers should have access to the materials (including emails and text messages) that Pepper Hamilton reviewed during its external investigation. Bayloe tried to contend that that information was privileged but the judge said the university waived privilege when it released a summary of the report's findings as well the 105 recommendations.

Finally, the same week that ruling went against Baylor, the school settled another lawsuit. Jasmin Hernandez, who was the first to file a lawsuit, engaged in a confidential settlement with her former university, which included dropping her case against Briles, who was named in the lawsuit along with his former boss, ex-AD Ian McCaw. Hernandez's story drew considerable attention. In addition to going public with her identity and story, her attacker, former football player Tevin Elliott, was found guilty of raping Hernandez in 2014 after the university failed to discipline him for the assault in 2012.

 In addition to the remaining lawsuits from the original "set," Baylor has to contend with the newest very damning allegations. There is far too much shouting about how great Baylor is (hello, Kim Mulkey) while nothing appears to be changing.


* this is a joke; I am not holding the entire country accountable for hiring Art Briles. 

Tuesday, August 15, 2017

Jury Finds Insufficient Evidence of Sexual Orientation Discrimination By Pepperdine

On Friday a jury in California delivered its verdict in favor of Pepperdine University, citing insufficient evidence to support the plaintiffs' claim that that women's basketball coach discriminated against them when they were players on his team by singling their dating relationship out for scrutiny and prohibition. Pepperdine had argued that the coach was targeting their dating relationship for its effect on team chemistry, rather than the fact that the players were lesbians.

The jury apparently thought the evidence did not support the plaintiffs' version of the coach's motives, but the fact that the case even made it to a trial was notable in itself. That is because the plaintiffs sued under Title IX, which prohibits sex discrimination and does not expressly mention anything about discrimination on the basis of sexual orientation. But the court allowed the case to proceed by recognizing that sex and sexual orientation discrimination were conceptually entwined. Even though the plaintiffs did not win at trial, the fact that a court agreed that Title IX covers sexual orientation discrimination will likely help future plaintiffs challenge sexual orientation discrimination they may face in athletics and other aspects of education where Title IX applies.

I know that lots of coaches, mainly in women's sports, have concerns about the effect of teammates' dating relationships on team chemistry. Even though Pepperdine prevailed at trial in this case, the fact of Title IX's potential application to sexual orientation discrimination means there is still a legal reason for coaches to be careful about how they regulate team chemistry -- as well as ways they can do a better job than Pepperdine to potentially avoid this kind of litigation in the first place.  For one thing, coaches that are concerned about team chemistry should address all kinds of relationships that could cause problems besides players in same-sex relationships with each other.  This could include players dating student managers and trainers, whether same- or opposite-sex, teammates on different-sex teams that practice and travel together, and close friendships that have the potential to be clique-ish and divisive. Secondly, coaches should be clear that they are regulating behavior during time that is relevant to the team (practice, competition, travel, team meetings and events), not the relationships per se. If a coach is worried that dating players will seclude themselves from the rest of the team, or bring drama and division in the event of breakup, then that is what the coach should regulate, not the relationship itself. Moreover, it should be clear that these conduct expectations apply when the players are on "team time."   Here is a good example of these principles in a model policy posted by NCLR.


Wednesday, August 09, 2017

Gender policing in youth sports

In early June, the story of Mili Hernandez, an 8-year old soccer player from Nebraska, made national headlines. her team, playing in a youth tournament, was disqualified right as they were about to play in the finals because organizers thought Mili was a boy. Rather an anonymous person told officials that a boy was playing on a girls' team. And the team had to go home. {I have a breakdown of this situation below.}

There was outrage and support from current and former professional soccer players. It was not a Title IX issue because it was a youth sports league run independently from interscholastic sports governance. So, though outraged it did not make it onto the blog. But now another story of questioning gender in youth soccer has arisen, and it seems like a good time to bring Title IX into the discussion.

A girls' club soccer team in Madison, Wisconsin has several short-haired players (some of whom model their style on favorite players like Abby Wambach and Megan Rapinoe) who experience what Hernandez did but on a regular basis. They have not been disqualified from games or tourneys but other teams ask questions of their parents, coaches, officials, and of them. They try to "catch" the girls by asking them their names. The team is accused of cheating. This persists even though the club system in which the team plays requires birth certificates from each child before she can be rostered on a team. The certificates are used to check for age and for sex. Cheating, in other words, would require forging birth certificates.

In some ways it is very simple. Some people have short hair and some people have long hair. And some people style their hair after people they want to emulate (remember the Rachel?). And kids play soccer.

The thing about gender is that everyone knows what it "should" look like--even if one cannot or chooses not to conform to the norms or expectations. This means that if a girls' team was to engage in cheating by including boys on the roster, the boys would be feminized in some way so as to avoid getting caught.

I can't believe I had to write that sentence. I do not want to live in a world where people are convinced that short-haired female soccer players are not boys because boys trying to pretend they are girls would know how to look like girls. That is the logic of the deeply gendered culture in which we live.

But there must be something else going on if people cannot stop and use that logic. And that is why gender is complicated. Because it is imbued with power. It is about access. It is about boundaries. In sports, those boundaries remain very tightly monitored.

What was interesting about the Madison situation is that the coach was initially skeptical about what her players' parents were saying about how the team was treated. This is likely because the team is based in Madison--a liberal college town. But one, a town that is sports obsessed and two, is in a a conservative state. In other words, how a region or town interprets or polices gender norms differs. For example, a look at the map at TransAthlete shows state interscholastic associations' gender identity policies.

The policy in Nebraska, where Hernandez plays, is the same as the old IOC policy. It requires gender reassignment surgery (we are talking about children remember) and a waiting period after the start of hormone treatment. The policy in Wisconsin is that each case is assessed as it arises. These policies reflect the cultural beliefs and can be used to predict how, for example, people might respond to short-haired soccer players on girls' teams.

Again, the interscholastic associations make their own policies, club teams and leagues make their own policies and Title IX has nothing to do with them. But it can influence thinking. Unfortunately the current administration's application of the law makes policies like the one in Nebraska--which is now more regressive than the IOC's--look more reasonable. It tightens the boundaries and it impedes logic.

Saturday, August 05, 2017

Eighth Circuit Concludes that College is Not Liable for "Single Incident" of Sexual Assault

Recently, the Eight Circuit affirmed the dismissal of claims for institutional liability arising from a single incident of sexual assault. The plaintiff, a high school student, visited Culver-Stockton College as a potential recruit of the women's soccer program. While there, she attended a party at a campus fraternity. She alleges that she was served alcohol, and then sexually and physically assaulted by a fraternity brother while she was intoxicated. She reported the incident to campus authorities, but they did not engage in any kind of disciplinary response against the perpetrator.  A lower court dismissed the plaintiff's lawsuit against the college, a decision  that the Eighth Circuit recently affirmed on appeal.

Alarmingly, the Eight Circuit concluded that the reason the college was not liable for its failure to investigate and discipline the perpetrator was that the plaintiff alleged "only a single incident of sexual assault." This is  terrible mistake, and based on a strained reading of the Supreme Court's decision in Davis, in which the Court literally stated that harassment, to be actionable, had to be "severe, pervasive, and objectively offensive."  However, despite the missing "or" it is clear in the context of the decision overall, and especially in the context of the sexual harassment doctrine overall, that the Court did not mean to preclude liability based on a single-incident of misconduct that, like most forms of sexual assault, is properly considered "severe."

The Eighth Circuit opinion quotes the following sentence from the Supreme Court's decision in Davis as support for its conclusion:
"Although, in theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have such an effect, we think it unlikely that Congress would have thought such behavior sufficient to rise to this level in light of the inevitability of student misconduct and the amount of litigation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harassment."
But the context of this sentence is important to understanding that the Court was not requiring multiple incidents of rape as a precursor to institutional liability.  It comes in the middle of the section of the opinion where the majority is refuting the dissent's concern that the opinion makes schools liable for things like teasing and name-calling. That is the "peer harassment" the Court means when it says "such behavior" does not rise to requisite level of severity to create the potential for institutional liability based on a single incident. Read in its proper context, this sentence does not require that more severe conduct such as sexual assault* occur multiple times in order to create the possibility of institutional liability.  Other lower courts have had no problem interpreting the Davis decision to mean exactly that. Some have said outright that a single incident of rape is sufficiently severe, and countless others have inferred it by concluding that an institution is potentially liable in cases involving a single incident of sexual assault or rape.

I actually think that the court could have provided, or at least entertained, a more sensible reason to support the same conclusion that the college is not liable, based on the fact that the plaintiff was not a student of the college. For liability to exist under Title IX in cases of peer harassment, it must be the case that the institution's indifference has the effect of depriving or impairing the plaintiff's educational opportunity provided by the institution in question. If this case had been about the college's pre-assault indifference (i.e., if the plaintiff had alleged that some prior incident, such as an incident involving the same fraternity, the same perpetrator, or other prospective student-athletes as victims, put the institution on notice of a substantial risk of sexual assault like the plaintiff's) then the fact that the plaintiff was sexually assaulted while participating in a recruitment program provided by the college would, I think, qualify.  But this is not a case about an institution's pre-assault indifference, it is only about the damages to the plaintiff that the college caused to the plaintiff by failing to investigate the incident after it occurred. I have no doubt that this inaction was distressing to the plaintiff, but since she was not a student at the college and was no longer participating in its recruiting program for prospective student-athletes, it is difficult to see how this harm interfered with her ability to participate in the educational opportunities provided to her by the college. (To be clear, however, this analysis only pertains to institutional liability for money damages. OCR has broader enforcement and can properly interpret Title IX to require institutions to address the harm to non-students in these circumstances.)

Even though there is a basis for reaching the same conclusion, I hope that an en banc panel reconsiders this opinion and corrects the erroneous "single incident" analysis -- before it creates confusion in the lower courts.

Decision: K.T. v. Culver-Stockton College, No. 16-3617 (8th Cir. 2017).

*Granted, depending on how broadly the institution defines "sexual assault," it is possible that not everything in this category should be considered "severe." But if that's the case here, the proper disposition is for a jury to decide, not for the case to be dismissed prior to such fact-finding.

Tuesday, July 18, 2017

Inequities in scheduling and facilities

Last week's episode of Only a Game included a story on inequities in scheduling and facilities on the three stories you should know segment of the show.

It was Boston Globe writer Shira Springer's story and was born out of Victoria Azarenka's complaints during the first week of (the recently concluded) Wimbledon that women were not getting the good courts and the good times. Nothing much came of Azarenka's public calling out of the All England Club--shocking. But Springer did a good job of turning the moment into a conversation about how female athletes are treated.

My initial response was something in the realm of "no kidding" and "is this really what we should be talking about?". I mean the Women's US Open was held at one of 45's golf courses last weekend because the USGA would not move the event way back in October when news of his sexual assaults was revealed to the world. And then USGA officials would not/could not publicly answer a question about the organization's position on sexual assault!

But then I remembered that I am a feminist scholar of sports and that ranking all the ills is not really in keeping with my philosophy and desired intentions. I also opened up my email to find a Google alert about facilities inequities in Oregon (high school softball/baseball fields). Also, inequities in scheduling and facilities do not exist in a vacuum; they are an indicator of the culture of the sport's governing body.

Springer's segment focuses on professional and Olympic female athletes and it is an important conversation given that, as she herself notes, much of the conversation about inequality at this level has been directed at pay inequities. And as much as I appreciate Springer's segment and the potential attention it will generate, this is not new. Just two years ago, we were watching a premier international soccer tournament played on artificial turf. The 2015 Women's World Cup participants and their supporters protested the

Host Bill Curtis made a side comment about Boston University when Springer mentioned the very inequitable scheduling of women's hockey in Sochi in the last Olympics. He noted that BU has the same issue. It was almost a under-his-breath comment but it's important to note. BU established a women's hockey team in 2005. The team has been successful fairly quickly. They play Walter Brown Arena, built in 1971, which seats approximately 3,800 fans. The men play in Agganis Arena, which opened in 2005 (such a coincidence!), and seats about 6,100 fans. I have not been to either arena so I cannot comment on the level of upkeep or general comfort and accommodations. But on its face, this does not look like a good situation. It reminds me of the montage in Love and Basketball that compares the experiences at USC of Q and Monica.

Because Walter Brown is a facility that the women do not have to share unlike most of their DI counterparts, maybe they think this is a good deal. But maybe they look at the treatment that men receive and think that having their own arena is not nearly enough. The point is that the women of US National Team are used to be being put in substandard arenas and in non-primetime slots. So even if they know it is unfair and even if they hate it, it was likely not a surprise when they encountered the same situation in Sochi.

Female athletes who come up through the American intercollegiate system are accustomed to differential treatment. Professionals like Victoria Azarenka who came up through a non-scholastic junior sports system do not have the same experience. This is not to say that athletes who come up in club systems around the world are treated equitably (in another sport movie reference: Bend It Like Beckham). I am sure almost every professional female athlete can share stories about gender inequality. But in a sport like tennis--or basically just tennis--where pay equity is less and less of an issue, players might be a little surprised that there are other gender issues to tackle.

And heading back to where Title IX is a factor: interscholastic and intercollegiate sports are still failing miserably in their obligations for equal treatment. We wrote an article about this five years ago. We could easily write another today with just examples from the past few years.Trickle down or trickle up change--it does not matter in what direction or who is doing the influencing, but remedies to these inequities will only come with changes to attitudes about women's sports and female athletes.

Friday, July 07, 2017

If you can't dismiss them, settle them

Baylor University has settled one of the six lawsuits it is facing over its handling of sexual assaults. This lawsuit had a single plaintiff, a former student who said she was drugged, kidnapped, and raped in February 2015 at an off-campus party at what is known as the rugby house. The lawsuit, in part, accused Baylor of not properly handling her reporting of the incident. It also revealed what is now undeniable--that Baylor has an extremely dangerous culture and that has not effectively addressed the climate.

After initial contact with the Title IX office, the plaintiff found out--from that office--that multiple other women had reported sexual assaults at the rugby house. They worked with her for several weeks and then nothing. There was no hearing. She left Baylor after a failed appeal over a poor grade--due to her trauma from the rape.

Baylor had moved to have the lawsuit dismissed in October.

Details of the settlement were not released. 

The school has settled with three other women who did not filed lawsuits. There are now five lawsuits pending against the university.

Wednesday, July 05, 2017

Recent happenings: Florida, Baylor, Michigan State

Amidst the ever-growing pile of evidence that civil rights laws and statutes will not be defended, inspected, upheld by this administration (suspect nominations, budget & staffing cuts, etc.), there was some good news this week. OCR is investigating the University of Florida's handling of a sexual assault accusation against football player Antonio Callaway. We discussed this case last year when Callaway faced a student disciplinary hearing because the hearing itself was unusual in that it was presided over by a football booster who is also a lawyer. UF had never brought in an outsider to preside over disciplinary hearings and that this person was overseeing a case involving a football player was deeply suspect. The accuser herself boycotted the hearing.  No one from UF will speak on the matter because the investigation is ongoing. The accuser--who filed the complaint--and her team have previously commented on the situation.

Baylor must have an abundance of shovels because they just keep digging themselves deeper and deeper. Most recently, a former regent (who was on the board at the time of many of the alleged incidents of rape) chastised the alcohol consumption habits of female undergrads at the school during  series of 2009 emails about alleged sexual misconduct on campus. The former regent, and district attorney, Neal Jones's emails are part of evidence in one of the six current lawsuits against the university. Because underage drinking violates Baylor's Christian-based standards, Jones implies--at best--that the issue should be moot. Except his language reveals significant misogynist blame: “Those perverted little tarts had better be thanking their lucky stars that my guns are all aimed at a worse group of insidious scoundrels than themselves for the time being.” The plaintiffs (there are 10) contend that these attitudes about women and drinking and sexual assault--which existed, as evidenced--at the highest levels of Baylor leadership, contributed to the culture of sexual violence and the lack of appropriate responses to the reports of sexual assault.

Last week Baylor asked for one of the lawsuits it is facing be dismissed. This lawsuit has a single plaintiff, a former volleyball player, who alleges she was drugged and gang raped in 2012 by up to eight football players. Baylor contends that her right to make these claims expired in spring 2015. They also protested the language of her lawsuit which they felt was inflammatory and they are trying to strike from the court record her contentions that Baylor promised sex with female hostesses to football recruits.

It does not seem likely the the move to dismiss will be granted, though Baylor has now attempted to get all six of the lawsuits it is facing dismissed. A district court judge said in March that Baylor sexual assault victims will have until 2018 to file lawsuits against the university.

Far north of Texas, Michigan State University has also been dealing allegations of sexual assault against football players. At this time, the situation at MSU does not appear to be as widespread as at Baylor and officials actually investigated the January assault. These assaults are starting to look eerily familiar: a woman raped by more than one athlete and the incident being recorded. The three MSU football players were dismissed from the team in February (after criminal charges were filed) and subsequently found guilty by the school of violating the sexual misconduct policy and expelled this past week. The lawyer for one of the accused criticized the university's investigation for not being thorough citing all the evidence currently entered as part of the criminal trial thus reinforcing the misconception that student hearings are similar to the criminal justice system. A hearing for the men is scheduled for September. In another departure from Baylor, MSU hired an outside firm to investigate the football program after the allegations became known.