Wednesday, July 31, 2013

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

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

Monday, July 29, 2013

Sexual Harassment Roundup

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

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

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

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

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

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

Friday, July 26, 2013

Transgender Student Prevails In Title IX Settlement

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

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

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

Wednesday, July 24, 2013

Jackson Alleges Continued Retaliation

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

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

Tuesday, July 23, 2013

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

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

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

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

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

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

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

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

Friday, July 19, 2013

Dear Colleague letter re: pregnant and parenting students

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

Thursday, July 18, 2013

Nine for IX Series, Part I

This week marks the third release* in ESPN's original documentary series Nine for IX.The series celebrates the 40th anniversary of Title IX and features stories about women in sports produced and directed by women.
So my two little qualms before I get into the movies themselves. One, the fact that they began the series on the 41st anniversary of Title IX makes me a little twitchy. Was this in the works last year and it just didn't happen? Robin Roberts is a producer of the whole series. It is possible that her health issues over the past year delayed the project. Still, I think it is perfectly fine to just say that this series is a celebration of Title IX.
Except (qualm 2) it's not really a celebration of only Title IX, it's a celebration of women in sports. I find it problematic when all the celebratory moments and activism in women's sports are automatically associated with Title IX. They are not. American women began gaining momentum in the Olympics, for example, decades before Title IX was passed. Attributing the moments or lines of progress we have seen in women's sports solely to Title IX erases a lot of the activism and activists that happened prior to and since Title IX that was not related to school-sponsored sports.
In short, the the greater visibility of and access to women's sports is not just about Title IX, and this is evident in the documentaries in the series.
For example the first one, Venus Vs, is about Venus Williams's rise to the top of women's tennis and the activism she engaged in for equal pay for female tennis players at the Grand Slams, primarily Wimbledon. Though I knew about this activism, hearing about the details of the campaign, which she basically led, was one of the highlights of the film. I was worried that this would be a "colorblind" film, but the film makers actually discussed the situation Venus and Serena, and their family, found themselves in when the emerged on the professional scene as teenagers, not having played the junior circuit. Their treatment, including their neglect, by the media is one of the more subtle messages of the film. Though I realize they are a deeply private family, when their sister was killed in 2003, the lack of sympathy was remarkable. I remember watching the sisters that year and wondering why they weren't talking more about how this violent death of an immediate family member was affecting them on the court. I mean when Steffi Graf's father was being tried for tax evasion in Germany we heard all about it!
I was disappointed though that that film basically talked about race and then gender. In the first half it was about "Venus as Black." In the second, the theme was "Venus as woman." The fact that she is always a Black woman and that this affects everything she does, especially as a public figure in the tennis world, remained unexamined. A Black female Wimbledon champion is demanding that the All-England Lawn and Tennis Club pay women equally. That's a big deal. She was not just a woman with power in the tennis world in this moment. Because we all know that AELTC is not colorblind.
I think this film would work well in the classroom.

Pat XO was the second film in the series and was basically a tribute to head coach emeritus Pat Summitt of the University of Tennessee. This is fine. But don't expect a lot of nuance. There was nothing about the struggles of female coaches in the professions--especially ones with children. It showcased the relationships she has formed throughout her years focusing especially on the one with her son, Tyler. I found the prevailing discourse about how tough and persevering she was and how she never let anyone see what was going on her personal life a little troubling. I thought it presented a male model of sport and coaching in which women had to be that way in order to both succeed and be seen as legitimate. And that aspect was not questioned at all. Summitt did bring her son with her everywhere but her ability to do so and the work-life balance issue was never raised. I don't think a film about Pat Summitt, at this point, could be anything but what Pat XO was. But it doesn't go much further than a feel-good story.

Next up, Let Them Wear Towels, about female reporters in the locker rooms of professional men's teams.

* the third full-length release. There was a short film, Coach, about C. Vivian Stringer that is available at the EPSNW website.

Wednesday, July 17, 2013

Unexpected meeting with Department of Education

Title IX news usually slows down during the summer with the exception of some annual anniversary coverage in June.
But this summer a core group of college students and recent graduates have continued their activism aimed at making college campuses less sexually dangerous and making more college students aware of their rights to a harassment- and violence-free campus. In addition to work on the Know Your IX campaign, this week a group of activists went to DC with a petition signed by over 100,000 people calling on the Department of Education and OCR to beef up enforcement of Title IX to better protect students from sexual assault. A small group of students rallied outside the Department of Education yelling up to the Secretary Arne Duncan's office through a megaphone and were surprised when Under Secretary Martha Kanter came out to personally accept the boxes of petitions saying that she would deliver that to Secretary Duncan.
Unlike Title IX's application to athletics, there is no universal handy checklist or comprehensive measurement scheme to assess a school's sexual climate. Though there are certainly signposts and other markers such as policies and educational and training programs, evaluation of a school's commitment to ensuring its campus is a safe place is quite subjective. Also, there has not yet been a confluence of negative effects to put some proverbial teeth into enforcement. Though the negative publicity a school receives provides some deterrent, it is both difficult to measure the ramifications of this negativity (students lost, donations lost?) and somewhat hard to believe that people will stop going to schools such as Yale or Dartmouth or Swarthmore even with the increase in the visibility of these issues. Additionally, there have been no set of legal cases resulting in large jury awards to scare schools into compliance as there have been in athletics (i.e., Fresno State. Florida Gulf Coast). While the efforts of the current group of student activists have been impressive and consistent and spread all over the country, other actions/results need to help the issue truly take hold.

Thursday, July 11, 2013

Student Accused of Rape Sues University Under Title IX

Last winter, Brian Harris, a student at Saint Joseph's University in Philadelphia, was accused of raping a female student.  He was suspended after a disciplinary proceeding found him responsible.  Now Harris is suing the university under Title IX, alleging that the investigation and proceeding that lead to his suspension was biased against him because of his sex.  This is not the first case we've noted in which a student accused of rape later sues under Title IX.  In an earlier case against the University of South, a court dismissed the male student's claims that the university was biased against him because of sex.  But that student did prevail on other grounds, including negligence and violation of its own procedures.

According to press about Harris's case, his complaint alleges violations of the university's policies for investigating accusations of sexual assault.  He claims that the investigation was biased and one-sided in that it ignored exculpatory evidence.  Yet, as one expert interviewed in the article points out, the complaint is vague about how exactly this amounts to bias because of sex.  It is possible that Harris could convince a court, like the University of the South student did, that mistakes were made, without necessarily being able to attribute them to intentional gender bias.  Discriminatory intent is hard to prove, even though courts do not require plaintiffs to have direct evidence of such intent, such as if a university official made a statement that they was suspending Harris due to animus towards the male gender (an unlikely scenario).  In the analogous context of employment discrimination, when a plaintiff undermines the employer's stated reason for termination, it is sometimes inferred that discrimination was the reason instead.   Here, Harris can attempt to discredit the university's stated reason for his suspension -- i.e., that they believed it was more than likely that he committed rape -- by arguing that the investigation and hearing were so flawed that it could not have led the university to genuinely believe that that Harris was likely to have committed rape.  It might be reasonable, then, to infer that the suspension was motivated by bias instead.  But it's hard to see what Harris would argue supports the inference that bias was due to sex, when there are so many theoretically possible grounds for bias (personality based, for example, or motivated by campus politics) that are not prohibited by Title IX.  

Wednesday, July 10, 2013

Settlement Ends Single-Sex Classes in Wood County, West VIrginia

A federal court in West Virginia recently approved a consent decree between the ACLU and the Wood County Board of Education, which prohibits the Board from reinstituting single-sex education in core classes at Van Devender Middle School.  Last summer, the ACLU filed a lawsuit on behalf of parents whose children were assigned to single sex classes.  A federal court granted the ACLU's preliminary injunction after determining it was likely they would prevail in the argument that the program violates the requirements under Title IX that single sex education be "completely voluntary."  Wood County's was not, because parents had to opt their children out, rather than opt in.  The court's opinion also emphasized that single-sex public education must be able to withstand heightened scrutiny under the Equal Protection Clause.  It cannot be rooted in stereotypes and pseudoscience, as Van Devender's program appears to have been. 

This decision paved the way for the eventual settlement, approved Monday, that prohibits the Board from instituting single-sex classes for two years.  For the following three years after that, the Board can only implement single-sex classes after it provides notice to the plaintiffs and receives approval from the court, a valuable prophylactic against the Board's future implementation of another mandatory, broad, and poorly justified single-sex education program.