Monday, December 29, 2014

Another bathroom case: New Jersey edition

A transgender student in New Jersey won a several month battle with his school district to use the boys' bathrooms. Unlike the situation in Virginia, the school board did not pass a formal policy stating that bathroom use was dependent on sex at birth. But Rubin Smyers and his advocates and allies, spent months negotiating this resolution which, as he noted, gave him permission for something he had permission for (legally) all along.

Smyers was told initially that he would have to use a single stall unisex bathroom (no word on how many of those were on campus). This "solution" was presented using the "civil and privacy rights" of cisgender students discourse that circulates around these situations.

The school board did not pass a policy that barred transgender students from using bathrooms in accordance with their gender identity. In hearing the complaint Smyers brought. however, and in making the ruling, it did enact another problematic discourse that may be on the rise: the "case-by-case" policy.

What is the rationale for this policy? Make the rules, set the precedent--in accordance with the law. Case-by-case policies discourage transgender students from coming forward and being able to enact their rights. This could potentially lead to more dangerous situations if cisgender students feel a transgender student is in the "wrong" bathroom. Stop requiring every transgender student to deal with the anxiety, ostracism, harassment, and retaliation that comes from having to ask permission--from a group of adults sitting at a big table--to go to the bathroom.

Saturday, December 27, 2014

ACLU steps in on Virginia bathroom case

As was predicted in a previous post (somewhat in between the lines admittedly), the born-in-the-sex bathroom policy established by the Gloucester County School District in Virginia is being challenged. The policy, which was passed a few weeks ago, stats that children in the district must use bathrooms in accordance to their birth sex. Transgender students with "genuine" gender identity issues will use separate facilities.

The ACLU has filed a complaint stating that the district's new policy (created in reaction to out transgender student Gavin Grimms's use of the boys' bathroom this school year, for which he was given permssion by the school principal) is a Title IX violation.

After the school board approved the policy, Grimms was forced to use the unisex bathroom located in the nurse's office. In addition to isolating him (as noted in the article), it also requires him to--I would imagine--go out of his way to use the bathroom; an inconvenience not experienced by other students.

This does not appear to be a formal legal challenge at this point, though I imagine the ACLU is prepared to go that route if the school board digs its heels in and ignores precedent regarding this issues.

Friday, December 26, 2014

Winston cleared by conduct board

I have spent the last several days going through the various accounts of Florida State University student-athlete Jameis Winston's student conduct hearing. And the more I read, the more my initial response of "disappointed but not surprised" has changed. Because I truly am surprised that former Florida Supreme Court Justice Major Harding really felt that there was not enough evidence to confirm the Winston had violated FSU's student code of conduct.

A note about the media coverage of this case and its outcome: several reporters have written something to the effect of "FSU is investigating Winston despite the fact that the prosecutor chose not to file charges against him last year because of lack of evidence." What happened with the potential criminal case (the highly problematic one), has no bearing on this investigation. Winston is being charged with violations of FSU's student code of conduct. The school's investigation is mandatory (and almost 2 years late). There is no "despite."

After two days of hearings earlier this month, which included multiple witnesses who were questioned by the complainant (victim) and respondent (Winston) respectively, Harding announced in a letter to Winston that he did not find that the information presented met the preponderance of evidence standard required in student conduct hearings. Harding was approved by both sides to oversee the hearing, in part because he had no ties to FSU. Other panel members, however,  were FSU employees.

Both sides had witnesses; both had advisers all of whom were lawyers. Advisers are only allowed to confer and offer advice. All questions to witnesses were asked by the respondent, the complainant or members of the panel. Both the victim and the accused offered opening statements. Winston, somewhat curiously, had his entered into the record seemingly as an attempt to make it appear to be evidence, which it is not. As has been noted already in this 2-year long case, Winston has continually refused to answer questions about the events of that night in early December 2012. This hearing was not very different. He did not, as was his right, take questions about his statement which gave his version of the events of that night. His two witnesses, the roommates and teammates who have already had their own student conduct hearings, also were called and they too--as was their right--refused to answer questions. These are the two men who could have corroborated Winston's version of the events of that night which differ greatly from those of victim and do not hold up to various accounts offered by other witnesses including law enforcement, friends of the complainant, and health professionals.

As a reminder of some of the details: the victim did not know the name of and could not identify Winston, who maintains that the sexual encounter was consensual despite never--as the student conduct code requires--receiving verbal or physical consent. She only recognized him when they, coincidentally, had a class together, even after hearing his name she did not know who he was (i.e., the quarterback for FSU). She sought help immediately after Winston brought her home (she lied to him about where she lived and he dropped her off nearby), from her friends, police (both campus and local), family, and medical professionals (she went to the hospital, had a rape kit performed and asked for a victim's advocate). This was not a case of trying to bilk a celebrity or feeling bad after a consensual sexual encounter and "crying rape." (These narratives are actually quite rare.)  

Often in cases of sexual assault--at least in the criminal system--the victim's credibility is questioned. There were questions swirling about alcohol consumption and willingness to get into the cab with the three (implying that she was seeking multiple sexual encounters??), which the victim addressed during the hearing. But Harding was apparently not convinced that the victim did not want to go home with the men. He writes in his ruling that she did not seek help from people outside of the bar where they all were. This presumes a couple of things. One, that she was able to or felt safe enough to protest. Two, that even if she did want to go wherever they were going that such an action was tantamount to consent to sexual relations with any of them. It is not, which is why the fact that even Winston's statement did not include the victim saying yes makes me question what evidence Harding was looking at when making what amounted to a non-decision.

Harding's rationale also questions her motives and credibility in a way that Winston's was never questioned. Winston's credibility was very difficult to question--because he wouldn't answer questions--though his past behaviors are well known (stealing, making disparaging comments about women in a public place, writing and posting a pro-rape song). It is clear that none of these actions were a factor for Harding and also point to a problem that might hurt FSU: they were never the subject of student conduct code investigations. 

The victim's lawyer, Baine Kerr, who was present at the hearing as an adviser, said to the press that he and his team do not believe Florida State intends to hold Winston accountable. Given what I have read, I have to agree with him.

There is a 5-day period (which will be in January given the semester break) in which an appeal can be filed, but Kerr has not said whether they will do so.  Kerr and his team are also working on a civil lawsuit, and there remains the OCR investigation into FSU's handling of sexual assault cases. In other words, it's not over--for anyone.

Thursday, December 18, 2014

What should we take from Miller's firing?

This post will start cynical  (it has not been a great week for discrimination against women in sports) but I will try to end on an up(ish) note.

So we can now add to the list of things that will get female coaches fired/dismissed/forced into retirement: having too high of a salary. This joins such explanations (which range in legitimacy--I'm not commenting on whether or not they are true, just that they have been offered in some suspect dismissals): having a family, not having a family, pulling a player's shirt, banning white bread, reporting gender inequity, yelling at players, being too feminine, not being feminine enough, too successful, not successful enough. 

University of Minnesota Duluth women's hockey head coach Shannon Miller, who coached her team to five NCAA championships, was told this week that her contract is not being renewed (she will finish out the season) because her salary--the highest of any head women's hockey coach at $215,000--is too high for the financially distressed UMD to sustain. Most of those reasons above are never applied to  male coaches (yes, Tim Rice at Rutgers--who was caught on videotape--is an exception and lack of success is often a reason male coaches get bought out of their contracts)--but certainly "we're paying you too much, so we have to let you go"  is something male coaches do not hear when they are sat down in the athletic director's office to be fired.

This incident cannot be looked at in isolation. Don't forget the story from just a few weeks ago out of Iowa and the apparent pattern of female coaches being fired, not renewed, or entering into early retirement.

Yes, UMD is a different school, this is a different rationale, but it is part of the pattern. We may not know exactly what the pattern is and, unfortunately, I suspect the number of smoking guns that exist to explain things are rare--because I don't believe there is one thing that makes an athletic department fire female coaches. It's about the power of male administrators, beliefs about female leadership, the value of women's sports, the value of female coaches, and so much more.

Though this story broke two days ago, I feel we are a little bit behind given the extensive news coverage. But--and here is the potential upside--doubts are being raised and questions are being asked. Dr. Nicole LaVoi of University of Minnesota has been speaking to the media and also posted on her blog, One Sport Voice, some revealing data about coaching, salaries, and discrimination. 

UMD made a mistake not just in firing Miller but in providing a weak justification, which only serves to make people question the actual justification. They also made a mistake in doing it so close to the revelations about what is happening at Iowa. And they underestimated a general public that dislikes overt discrimination. It may be difficult to see and understand structures and systems of discrimination, but it is not hard to see that firing a female coach under the guise of being paid too much when there are other, less successful male coaches who are paid more...well that's gender discrimination.

Wednesday, December 17, 2014

Dept of Ed weighs in on records release

We wrote in July about writer Jonathan Krakauer's attempts to get the records related to the hearings and disciplinary actions against a University of Montana quarterback. He was initally granted access but the decision was appealed and the Department of Education is filing an amicus brief  with the Montana Supreme Court for the purpose of "clarify[ing] that disciplinary records constitute protected 'education records' under" FERPA. The department claims it is not taking a side in the case, though it certainly seems like they are saying, with this filing, that Krakauer should not get access to these records, which is one of the two sides.

Several legal experts have weighed in on the case with no clear indication about how the law should be interpreted. Does the fact the the student's name is widely known matter? What about his status as a student athlete? How does public interest and protection weigh against the privacy of this student?

The legal wranglings, which are not my area of expertise, are actually manifesting the sociocultural concerns (more my speed) over how schools are handling sexual assault--specifically assaults committed by student athletes--and the balance between transparency and privacy.

We know that athletic departments have often tried to keep the punishment of crimes by student athletes "in-house." The NCAA addressed this issue over the summer by clarifying that investigations and punishment of sexual assault needs to be handled by the appropriate university officials usng university policies and procedures just as they would for non student athletes. But looking around (perhaps looking a little south--toward Florida maybe?), some might wonder how much influence this edict has had.

Also, given that the discourse from the Department of Education and the Obama administration has centered around transparency--in how cases are reported, handled, and investigated, how discipline is enacted, how communication among all the parties occurs--some see this amicus brief as pulling the shade down a little.

How or whether these concerns will play out in the appeal remains unknown. Here is what I know: a high-profile student athlete was found guilty of sexual assault and expelled. That punishment was appealed to the state commissioner of higher education (i.e., to a pretty high level) who reduced the punishment to a suspension that allowed the player back on campus in time for football season. Eyebrows are rightly being raised. In the end, the court may decide that FERPA does not allow for these records to be released, but that does not mean that an explanation should not be provided. I think that the story will come out regardless, the question is whether it will be supported by official documentation or the testimony of anonymous insiders familiar with the case.

Sunday, December 14, 2014

Court asked to reconsider NU lawsuit

The student whose lawsuit against Northwestern University was dismissed last month has asked the court to reconsider or vacate its decision based on new evidence. The initial dismissal was due to a lack of evidence that NU showed deliberate indifference in responding to the student's report of sexual assault by her philosophy professor.

The motion includes statements from the report of the investigation conducted by the Title IX coordinator. The writer herself expressed concern that the professor's behavior might be a pattern in which he uses his power as a professor to gain sexual and/or romantic access to female students. There are other statements from faculty members expressing no surprise at the allegations against Professor Peter Ludlow given his tendency to date former students. And there is documentation that Ludlow's department chair approached him several years ago about potentially inappropriate relationships with graduate students. (Ludlow has a defamation lawsuit pending against a graduate student who filed a complaint alleging a non-consensual sexual encounter. The first link above is to Erin's post about the many legal actions around this case.)

The student's motion also states that she continues to be a victim of retaliation by the university. This claim, which was also made in the initial lawsuit, was dismissed. She is reporting new retaliatory actions. 

In short, the legal drama continues with apparently none of it yet resolved.

Saturday, December 13, 2014

Lesbian Basketball Players Sue Pepperdine

Two basketball players sued Pepperdine University this week, alleging that their coach and their academic advisor harassed and discriminated against them on the basis of their sexual orientation and the perception that they were in a relationship with each other. The lawsuit filed by Haley Videckis and Layana White maintains that the conduct of these university officials amounts to violations of Title IX and their constitutional rights to privacy. 

The complaint provides examples of the conduct of head women Ryan Weisenberg that are reminiscent of Jennifer Harris's case against Penn State and Rene Portland back in 2006. He and the academic advisor allegedly made repeated inquiries into the dating and sexual habits of the two players, and also asked other players whether"Hayley and Layana are dating." He is quoted as stating, "Lesbianism is not tolerated on this team," which the players perceived as a threat to  pull their scholarships. Both players are apparently benched at the moment, for ostensible medical reasons that the plaintiffs allege are pretext for discrimination.  They allege that the harassment has caused emotional distress, including one of the plaintiffs to attempt suicide.

Despite these overall similarities with Harris v. Portland (which settled on terms favorable to the plaintiff), there is one seeming difference that could make a difference in whether it is actionable under Title IX.  The Pepperdine plaintiffs do not appear to allege that the coach's discrimination targeted them for harassment due to their gender nonconforming appearance or behavior, only their status as lesbians (or perception thereof).  This is important because Title IX only prohibits sex discrimination, not discrimination on the basis of one's sexual orientation. There is existing legal precedent for the idea that sex discrimination includes discrimination the basis of one's gender nonconforming appearance and behavior, but courts have yet to interpret homosexuality itself as an example of gender nonconformity that is protected under Title IX--even though that makes a great deal of sense.  It will be interesting to see whether this case turns into a vehicle to push for an expansive definition of sex discrimination that would be more inclusive of discrimination that targets students who are gay and lesbian.

Friday, December 12, 2014

Transgender student denied bathroom access in Virginia

It has been a week of adults fighting over and making decisions about where children can go to the bathroom and change their clothes.

First it was the Minnesota State High School League (which we wrote about here and here; check out UIowa PhD candidate Cathryn Lucas-Carr's post about the policy and some historical context here). And a couple of days ago the debate emerged, minus an explicit athletics component, in Virginia where a high school student has come out as a transgender male. Gavin Grimm was given permission--by the principal--to use the boys' bathroom and has been doing so all fall seemingly without incident.

A school board proposal drafted by one board member, Carla Hook, last month and approved this week now states that students whose birth sex matches their gender identity will be allowed to use communal restrooms. Transgender students will be provided private accommodations. In other words, bathroom usage will be dependent on the sex you were assigned at birth regardless of gender identity. Anyone who identifies differently will use entirely separate facilities.The same is true of locker room facilities.

It seems like the Gloucester County Public School Board was trying to be understanding given that the statements within the proposal did not outright (they believe) discriminate against transgender students and supported those with "sincere gender identity issues."

Here is what I read both in this policy and the one in Minnesota last week. Organizations/associations/school boards know they can't outright disparage these students by saying they are not "real" boys or girls. I guess we should be thankful for the current moment of greater cultural awareness in which some people are realizing that gender identity is a civil rights issue. What the policies are, though, are attempts to avoid legal issues. But it is clear that these decision makers know very little about the issues. The lack of understanding about gender identity (I mean we haven't even gotten into the "complicated" stuff like non-binary and genderqueer) has resulted in poorly worded policies that do little to ease the problems transgender students face. Grimm himself commented that the separate facilities option will likely cause him greater anxiety and depression--issues he has faced in the past.

The issues of student privacy being invoked in the discourse surrounding these policies is not about the privacy of transgender student, it is about the privacy of cisgender students. I question this idea that cisgender students' need more or would be denied more privacy rights that their transgender peers.

On a slightly more hopeful note: I suspect that the GCPS policy will not hold up under legal scrutiny. A similar action in Maine did not and the state was recently forced to pay out a settlement to a student and her family. I would like to see some challenges mounted to the Minnesota policy as well.

Thursday, December 11, 2014

OCR Finds Title IX Violations at SMU

Today the Office for Civil Rights announced the conclusion of its investigation into Title IX complaints regarding Southern Methodist University in Dallas. The agency investigated SMU's policies and procedures for handing reports of sexual harassment and sexual violence after receiving complaints from members of the university community alleging problems in their cases. One of those complaints alleged that the university did not provide a "prompt and equitable" response to a law student who alleged in 2010 that a professor had been making sexually harassing comments to and about her. While ultimately OCR agreed with SMU's determination that the professor's comments, while unprofessional and inappropriate, did not rise to the level of actionable sexual harassment, it noted procedural violations that the university committed in handing the matter, including an egregious four-month delay and its failure to notify the student of remedial action that it imposed on the professor. The other complaint OCR had received was from a student victim of sexual assault. In his case, the SMU police responded by investigating and arrested the assailant, and the university  implemented a no-contact order to keep him away from the victim. Yet, the university did not conduct a Title IX grievance proceeding and ignored the victim's repeated complaints that he was being harassed by other students in retaliation for his complaint.

Additionally, OCR's review of SMU's existing Title IX policy turned up a number of "paper" violations that SMU is obliged to fix to ensure that the process for handling reports of sexual harassment and sexual violence is compliant going forward. Specifically, SMU is obligated to amend its Title IX policy by providing time frames for the appeal process, ensuring that the parties understand that if they first choose an informal process (like mediation) they can change to a formal process at any time, and to protect the parties from having evidence of past relationships come up in a hearing. Also, SMU has to publish the Title IX Coordinator's contact information.

When the agency reviewed SMU's files on sexual harassment/sexual violence complaints it received in the recent past, it found many of them were incomplete and did not contain documentation sufficient to demonstrate that whether SMU had satisfied its obligation to provide a prompt and equitable response. Accordingly, OCR required SMU to review sexual harassment and sexual violence complaints it has received in the last two years and self-evaluate Title IX compliance in those cases. The university is required to "take action" to address any problems that it finds.

Last, it must reimburse the student who reported the sexual assault for his educational expenses for the semester affected by the incident and for his counseling expenses to date. 

While OCR has over ninety investigations still pending into alleged Title IX violations regarding universities' responses to sexual harassment and sexual violence, it has resolved a handful of them this year, including Ohio State, Princeton, and Tufts in addition to SMU.

Tuesday, December 09, 2014

Triathlon becomes an emerging sport

Triathlon was approved earlier this year as the latest sport be added to the NCAA's list of emerging sports and it will begin its trial period in fall 2015. It had strong support from schools very interested in adding the program and was also bolstered by the existence of club teams already in existence.

As a reminder, the list of emerging sports is meant to grow the participation opportunities for female students. Emerging sports are listed as NCAA-approved, and thus can be counted towards Title IX calculations. The sport is given a period (10 years) in which to grow into championship status. Forty schools must implement the sport for this to happen (28 for DIII).

Some sports have been more successful than others in gaining championship status, but the process seems to assist at least in the process of figuring out which sports are viable. Two caveats, though.

One: as has been noted repeatedly in the research about women's participation in sports in the Title IX era, the addition of sports has mostly benefited white, middle class women. I don't see triathlon as changing that dynamic at all given the demographics of those who participate in the sport at the recreational and elite levels. 

Two: the emerging sport may not make it to championship status because it does not have enough promotion by a national governing body or other interested parties. In other words, it may fail because of lack of information, not necessarily interest.

USA Triathlon is addressing the second issue (and perhaps, by extension, the first?) by putting money into programs that begin triathlon programs. The group makes so much money off of adult participants that is pushing some of these funds into college programs via $2.6 million in grants. Interested schools will fill out an application. USA Triathlon will award 20 grants in total among all three divisions. 20 grants among schools in all three NCAA divisions. Division I teams will be eligible for up to $140,000 over four seasons. Division II and III schools, up to $70,000.

It is not a large amount of money, but it could provide some incentives to schools interested in trying out the sport. 

Monday, December 08, 2014

Bullied cheerleader commits suicide

A tragedy last week in California when a 12-year old boy killed himself after experiencing repeated bullying because of his participation on the cheerleading team.

His parents had gone to the school on multiple occasions to report the bullying and recently took him out of school  to begin homeschooling. He was frequently referred to as gay, though friends say he rarely discussed the bullying and kept his feelings to himself.

Given that the school, in Folsom, has acknowledged that the parents did indeed bring the bullying to their attention, there seems to be some admitted culpability. Lawsuit? Not that it would bring back Ronin Shimizu or offer much solace to his family and friends; but it seems that schools are not receiving the message that they need to address and take action when bullying occurs.

Sunday, December 07, 2014

MN trans policy passes

The controversial policy governing the participation of transgender athletes proposed by the Minnesota State High School League back in September has finally passed. Despite the vocal opposition by conservative groups that ran two offensive ads in anticipation of the votes, the policy passed easily 18 for, 1 against, 1 abstention.

Despite my concerns that the inflammatory ads would increase opposition to the policy and pressure the MSHSL to further revise or again postpone a vote, this did not happen. Though the standing-room only crowd that was comprised of supporters and opponents does suggest that the issue gained far more publicity than many other policies have. (Minnesota is the 33rd state to implement a policy on the participation of transgender students in sports.)

There are many issues, though, that remain. One, which I wrote about the other day, is about how individual schools will determine the use of locker rooms. A second is about the exemption of private, religious schools from the policy. Though this exemption is not surprising, it raises issues similar to ones we have seen regarding these schools and how their prescriptions on gender affect student athletes--especially those who are not in the school. For example, there have been cases of religious schools refusing to compete against public school football teams that have girls on the team. This forces the public school to take some kind of stand whether that means forgoing a game or compelling the female student(s) to sit the game out for the sake of the team. I would not be surprised to see something similar arise when/if a religious school becomes aware that a transgender student is on the team. This also leads back to the issue of maintaining the privacy of students, which I still see as being very difficult under the conditions of this policy.

Finally, I was quite surprised to read that the policy only addresses transgirls' participation on girls' teams because there is a state policy that already states that girls can participate on boys' teams. This misses the point entirely and actually affirms the basic premise that the Child Protection League Action put forth in their ads--that these students aren't real boys/girls. The Minnesota policy should have applied to all transgender students and included protections for everyone. What does it mean that transboys are not included in this policy? Will there be no attempts at privacy protections for them? Transgirls are not real boys dressed up as girls. Transboys are not real girls trying to be boys. I am unsure about how many people in Minnesota really understand what transgender means.

I am going to close with a link to an interview with transgender teen Jazz Jennings. I first heard abut Jazz when she was one of several children featured on a 20/20 episode about transgender children. At the time she was the one of the youngest cases of transgender identity. Jazz, who does not live in Minnesota, is now in her teens and, because of a transgender policy in her state, has been allowed to play sports in accordance with her gender identity. But Jazz faced discrimination as a youth soccer player. She was not allowed to play in games with girls and tried playing with boys but did not enjoy the experience. For a couple of years, before US Soccer Federation developed a transinclusive policy, she practiced with girls and sat out the games. Jazz cites former basketball player Kye Allums, as a role model. The two have met several times.

Despite a state policy that allows Jazz to play in accordance with her confirmed gender identity, she said that she still faces blatant discrimination. She continues to receive support from her family, friends, and coaches. I think that this is important to remember. Discrimination does not evaporate just because policies exist. Given the controversy over the Minnesota policy and the fact that many high schools are reluctantly supporting it, everyone should remain diligent that transgender students are able to participate.

Saturday, December 06, 2014

Some Thoughts about UVA, Rolling Stone, and Title IX

Yesterday Rolling Stone issued a statement that essentially retracts its November 19 story about a fraternity-organized gang rape of a student named Jackie at the University of Virginia.  We know now that the gang rape could not have, for logistical reasons, happened the way Jackie said or involved the people that she said were involved.  Rolling Stone admits that it should have vetted these basic facts before publishing the story. In not doing so, the magazine has not only cast unwarranted negative attention on the fraternity in question and on UVA.  Additionally, the magazine has set back efforts to address the very real problem of sexual assault on university and college campuses.    

One of those negative consequences is the threat that the retraction of high profile story about campus sexual assault will fuel a stereotype (myth) that lying about rape is a thing women do.  Yet, the fact that Jackie's story has "discrepancies" (as Rolling Stone called them) does not necessarily mean she was maliciously lying; and it certainly does not mean that other women who report sexual assault are lying. Certainly, the negative attention women receive for reporting sexual assault casts doubts on the possibility that women lie for self-serving goals. Moreover, there are other plausible explanations for the inaccuracies in Jackie's story.  As Hannah Rosin suggested in Slate, it is possible Jackie is in fact the victim of sexual assault, the trauma of which is clouding the details in her memory.  Or perhaps changing details about the story consciously or unconsciously makes her feel safer from the threat of retaliation. These possibilities, that actually speak to the need to support victims rather than discount them, are overlooked if we jump to the conclusion that Jackie lied/women lie about rape.

I am also concerned that the Rolling Stone retraction could be weaponized as an argument against Title IX. This would be truly unfortunate, as there is nothing about this story that warrants changing the requirements under law that college campuses respond promptly and equitably to reports of sexual assault. A Title IX-compliant disciplinary process would have revealed the "discrepancies" that came up in the re-reporting of the original Rolling Stone story and would not have sanctioned the accused individual (called "Drew" in the story) or his fraternity. Jackie's story would not have satisfied the preponderance of evidence standard that the Department of Education requires under Title IX. So this story does not support an argument  that we need to impose extra procedural protections for those accused of rape.

Moreover, if we accept the possibility that Jackie was not maliciously lying but was struggling with accuracy as a result of trauma or fear, that too speaks to the importance of a Title IX-compliant disciplinary process. If students trust the system, they will feel safe and supported in reporting assault right away, when details are fresh and can more easily be accurately conveyed.  Prompt reporting also gives the university the opportunity to provide mental help support that could perhaps prevent the memory-clouding effects of trauma.  And given that a Title IX-compliant response also affords the victim protection from retaliation, such reporting could also mitigate the role fear might play in accessing the truth.

For all we know, if Jackie had access to a robust, trustworthy, equitable disciplinary process, she might have reported her assault right away to supportive and truth-seeking campus officials, rather than to a reporter two years later. The university's disciplinary response would have been focused in the right individual or individuals, rather than on those who were apparently not involved.  For these reasons, a Title IX-compliant process should appeal to those worried sexual assault and those worried about the possibility of false accusations.

It would be all too easy for campus officials, government officials, victims and others to use this story as an excuse to disregard victims or roll back the requirements of Title IX.  Those who support sexual assault victims and Title IX have to acknowledge that threat and confront it in their advocacy. 

Thursday, December 04, 2014

Another anti-trans ad in Minnesota

The Minnesota State High School League meets tonight to discuss their policy for the inclusion of transgender students in sports. And earlier this week, the Minnesota non-profit Child Protection League Action went back in transphobic action with a second full-page ad published by the Minneapolis Star Tribune.

And this one has garnered far more attention than the first, making the rounds on Twitter and Facebook and generating many calls and emails to the Tribune, which is being chastised for running this second ad. (The Tribune met with people concerned about the content and message of the first ad but seems not to have taken much from it. The newspaper itself is coming under attack for printing the second ad. There are petitions out for the paper to issue an apology.)

The ad include a picture of a seemingly despondent female softball player and the copy of the ad reads as follows:
The ends of girls' sports?
Her dreams of a scholarship shattered, your daughter just lost her position on an all-girls team to a male...and now she may have to shower with him.
Are you willing to let that happen?

The ad also includes contact information for the leaders of MSHSL so a reader can express the outrage CPLA assumes readers will have.

Similar themes as the last ad (predatory males taken sexual advantage of female athletes, the shower as fraught space, and the complete ignorance of what transgender means) and now the added fear mongering: transgender women (which the CPLA refers to as men) will ruin women's sports.

I could dissect all the problems with the rhetoric, but I feel that it is an exercise in frustration to fight the logic of such a group. (Plus I kind of did it the other day.) My concern is more about the ad's effects. I have never heard of such vehement, hateful opposition to a high school policy that attempts to be inclusive. I believe this policy would have passed back in September, without revision and little fanfare but for the work of this group and their Catholic allies.

Now there is an even more problematic policy--one that is still in danger of not passing--based on hormones and other medical interventions and testimony of health professionals (though I have read elsewhere that all that is required is the confirmation of a parent).

"A female-to-male transgender student who has started hormone treatment can only play on male teams. One who hasn’t can play on either team. A male-to-female student must provide evidence of testosterone suppression therapy. The shower policy requires school districts (when possible) to provide private shower and changing facilities to any student athlete who requests them. It also bars school districts from revealing that a student athlete is a transgender person.”

The reliance on hormones as a measure of gender reveals the restrictive nature of the policy and puts it more in line with other restrictive policies that exist at higher levels of competition including the NCAA recommendations and the IOC's Stockholm Consensus. It does not follow the trend in policies by other high school athletic associations.

Finally, the idea that transgender students will be kept anonymous is highly suspect. Because the policy allows schools to decide how to handle the issue of showers and locker rooms, it is difficult to understand how privacy could be maintained when one student is singled out and asked to use a private bathroom facility at his/her own school or during an away contest. This aspect of policy is quite worrisome and, as I said, would seem to contradict the desire for students to be able to maintain control information about their identity.

A curious aside: the picture of the softball-playing young woman used in the ad is is lifted from a novel about lesbian teenagers. One: oh, the irony. Two, copyright violation?

I assume an update about what happened at the meeting will be forthcoming.

Wednesday, December 03, 2014

Swarthmore Litigation Resolves as College Vacates Disciplinary Committee's Findings Against Student

Earlier this year, we blogged about a male student's lawsuit against Swarthmore College, alleging bias in the college disciplinary proceeding that found him responsible for sexual assault and lead to his expulsion.  Swarthmore had vigorously defended the lawsuit until a surprising turn of events this week, when the college announced that it had vacated the findings against the student, explaining that "additional information became available which both parties believe raises questions about the impartiality of the college judiciary committee panel that heard [the plaintiff’s] case, which "raises sufficient questions about the fairness of the hearing to warrant vacating the panel’s findings and sanctions." The student and Swarthmore then filed a joint motion to dismiss the student's case against the college, which the judge granted.

Though the college has vacating the findings of the proceeding that has occurred, it did not agree to automatically reinstate the student. Yet while the student would have to undergo another hearing before being eligible to return to Swarthmore, such a hearing is not expected to occur as the student has enrolled elsewhere.

The Swarthmore case is one of a number recent cases in which male students disciplined for sexual assault have sued their universities alleging bias and/or procedural violations. (Another such case, this one against the University of Colorado, was reported last week.)

Tuesday, December 02, 2014

New Guidance from Department of Education Reins In Single-Sex Classes

Yesterday the Department of Education released new guidance clarifying the extent to which Title IX permits public elementary and secondary schools to offer single-sex classes and extracurricular activities. In 2006, after Congress passed the No Child Left Behind Act, the agency promulgated regulations that attempted to reconcile the new law's permissive stance on single-sex education with Title IX's prohibition on sex discrimination.  While Title IX regulations already permitted schools to offer single-sex classes in physical education and human sexuality, the 2006 regulations authorized additional single-sex K-12 classes (nonvocational) when the single-sex nature of the class is "substantially related" to achieving one of two "important objectives:" (1) providing a diverse array of educational opportunities for students overall; or (2) meeting the educational needs of individual students. In addition, the regulations require that such single-sex classes be implemented in an evenhanded manner, offered on a voluntary basis, be paired with a substantially equal coed class in the same subject, and be subject to continued monitoring for effectiveness.

As many as 750 public schools segregated some classes and activities by sex in the wake of these new regulations, and there are at least as many schools that are entirely single-sex.  Many of the school districts that have implemented single-sex classes have provoked litigation (or threat of litigation) for exceeding the scope of the Title IX regulations and other laws like the Equal Protection Clause. The Department's new "Q&A" style document appears to be aimed at promoting compliance by raising awareness and offering clarification as to exactly what the regulations permit with regards to single-sex classes. (Single-sex  schools are not covered by the new guidance document because they are subject to a different regulations).

Here are some highlights from the guidance:
  • The school's "important objective" for single-sex classes must be identified prior to implementation; the agency will not accept a rationalization offered after the fact.  If the objective is not in writing, a school district may have difficulty proving to the Department of Education that it satisfied this requirement in the event of a compliance review.  
  • The "diversity array of opportunities" objective cannot be satisfied if the school's single-sex offering are the only thing that creates diversity in the curriculum. On the other hand, if -- for example -- a school offers a variety of electives, coop and externship opportunities, a STEM track, and/or the option to take classes at another school, adding single-sex classes may be related to the objective of offering a diverse curriculum. 
  • The "meeting individual students needs" objective requires schools to identify a demonstrated educational need (or possibly a social need) to justify separating classes or activities by sex.  For example, if a school finds that boys at a certain grade are scoring lower on a state assessment text in a particular area, it could justify a single-sex class option as an intervention aimed at addressing that need. 
  • The school must rely on evidence that the single-sex nature of the class will promote the identified objective.  For example, a school like the one previously mentioned could rely on evidence form a comparitor school or from published research findings that separating boys helped raised test scores in a particular area.  
  • However, such evidence may not include "overbroad generalizations about the talents, capacities, and preferences of either sex," including claims that a particular teaching method works well for most members of a particular sex.  This clarification is important because it forecloses many examples we have read about, in which schools attempt to justify segregation based on claims that boys and girls in general respond differently to things like the level of classroom activity, the sex of the teacher, the content of teaching examples, the structure of assignments, or environmental factors like the noise levels, lighting, and temperature of the classroom. As the guidance recognizes, these claims, even if reliable, only justify separating students based on their preferences regarding the variable in question. They do not justify using sex as a rough proxy for that variable. For example, a school may believe that girls in general learn better in warmer environments. This does not justify offering a separate class for girls, though a school may offering two different classrooms at different temperatures and allowing students of either sex to choose the warmer or the cooler of the two based on their comfort level. 
Based on recent past examples of Department of Education guidance under Title IX, I predict that the release of this guidance document is the first step towards stronger Title IX enforcement to rein in unlawful single-sex classes. By clarifying the narrowness of circumstances in which such classes are permitted, as well as the requirements for implementation, the Department makes it easier for teachers, parents, students, and other stakeholders to identify those classes that do not comply with Title IX and to file complaints accordingly that could prompt investigation and enforcement proceedings.  It also signals that the Department is turning its attention to this issue, and may suggest that its next step is to initiate compliance reviews of its own. 

Friday, November 28, 2014

Controversy over Minnesota HS League transgender athlete policy

I know we heard/read about the proposed policy by the Minnesota State High School League--and its tabling--that would legislate the participation of transgender high school athletes in Minnesota. It has generated significant controversy, so I am somewhat surprised that we neglected to post anything about it. I shall remedy that here.

It is back in the news, as the policy--somewhat revised--is slated to be discussed next week at a meeting of the MSHSL board, in what is being called "round four."

The policy, which remains the same in that it asks for transgender students to provide a letter from a health care provider attesting to the student's gender identity, continues to draw concern from Catholic and child protection groups in Minnesota who are putting forth somewhat tautological arguments:
“You tell me, where is the research that a biological male or a biological female is not a biological male or a biological female,” MNCPL state coordinator Michelle Lentz said.

Unfortunately this is not even the most problematic statement being made. 

The newest version of the policy will allow schools to decide how to handle the issues surrounding bathrooms and locker rooms. The locker room has created the biggest controversies with opponents of the policy who are apparently worried that children will fake their gender identity in order to gain access to the so-called opposite gender's space and/or that transgender athletes will engage in predatory behaviors.Or at least that is how I am reading it given that they keep referring to (abstract) transgender people by using their non-preferred gender identity.

Opponents clearly do not understand what transgender means. This was made obvious by the state's Child Protection League which took out a newspaper ad days ahead of the original consideration of the policy which had been receiving little attention up until that point. The ad said "A male wants to shower next to your 14-year-old daughter. Are YOU OK with that?”

Again the fear seems to be that predatory boys--of course they use the word "male" which immediately connotes an adult--will be trying to pass as a girl in a way that is harmful to a so-called real girl (note the significance of the use of a precise age alongside "daughter").

I could launch into a quite cynical argument that there are easier ways for boys/males/men to prey on girls, but that be a diversion--an erasure--of the actual issues here, which are 1) the continued discrimination of trans students and 2) the legislation of the bodies and activities of transgender children.

Though both Erin and I write about transgender athletes and the range of policies that govern their participation at all levels of sport, looking always for the best practices, assessing each unique situation, in the end there is no perfect policy. Every one is fraught and that is because they all attempt--very often without the input of the people who are most affected by them--to define what transgender is and make it--and by extension, transgender people--comprehensible, perhaps even palatable, to a general public.

In the case of the Minnesota policy, though it falls toward the less restrictive side of the spectrum (as compared to the IOC's Stockholm Consensus) it still requires "proof" beyond the student's word, taking agency away from that student and placing the power to make decisions about the correct way to do gender in the hands of a health care provider. This means authority over gender identity again is removed from the child seeking to define it for him/her/themselves. The student continues to have to ask permission to engage in a gender identity and also must do so in a way that others decide is appropriate.

This last part is particularly salient in the locker room discourse. Now that MSHSL has left it up to schools to decide how and by whom locker rooms will be used, the stigmatizing potential of the policy has grown and will likely affect any transgender athlete. The publicity around this one aspect of the issue, I suspect, will mean that schools will take a very conservative route in legislating locker room use. This could result, for example, in transgender athletes being given some kind of private space thus denying that student the full experience of being on a sports team--which I would argue is itself gender discrimination and something one might file a lawsuit or complaint about--in addition to the stigmatization.

In other words, in an effort to avoid controversy from a vocal minority, schools could be perpetuating the discrimination the policy allegedly seeks to remedy. Again, this is but one problem with what has been happening in Minnesota around this issue.

I am quite interested to see what happens this week, whose voices and positions are heard and validated, and what policy--if any--emerges.

Tuesday, November 25, 2014

OSU Band Situation

It's been a busy semester for us, so we have not always kept up with the latest Title IX happenings. I am actually looking right now at a white board of my things to do which includes a list of posts I want to write.

One of those is the Ohio State band situation that made headlines this past summer. OSU plays rivals Michigan this Thanksgiving weekend, so I figured it was as good a time as any to do an update post.
What has happened in the wake of band director Jonathan Waters's firing has made less news than the original story and the subsequent protests of his firing, but as the OSU band has marched on (yes, intended) there have been developments in this story.

In September, Waters began a lawsuit against the university seeking reinstatement (plus a million dollars in damages) and--ironically--used Title IX as part of his defense saying he was discriminated against because of his gender. OSU did not seem to blink saying that such a claim was invalid given that he is a member of the male majority. They also responded that because Waters was an at-will employee, they could fire him at any time. (He had claimed lack of due process in his dismissal.) They also claimed that he hid aspects of and misled investigators about the climate in the band; the climate that seemed to promote sexual harassment and assault and which was brought to the attention of the administration last spring by a mother of a band member. He was also accused of mishandling complaints of sexual harassment and assault that were brought to him during his tenure. Notably, as this was happening, the university entered into an agreement with OCR to end the investigation into the university's mishandling of sexual assault cases.The investigation did not stem from the complaints about the band.

Most recently, an independent task force created specifically to investigate the band culture and headed by former attorney general Betty Montgomery issued a nearly 100-page report based on interviews with almost 200 people that included many recommendations about how to change the culture. The task force, though, was committed to maintaining some of the band's longstanding traditions (though it recommended elimination of the most egregious ones) just altering them to make less problematic.The report did not discuss Waters's dismissal, only his role as the leader of the organization and an instructor. The report did not limit itself only to the culture under Waters. Waters has responded to the report saying that he agrees with the report and its recommendations and says that these are things that he was trying to accomplish when he was fired. (video here) He said that he was "the solution to the problems they were having." And he still wants his job back.

He is, though, looking for another job in the meantime. His lawyer reports that he has not received any offers since his firing. This is not surprising. Unless there is solid evidence that Waters did not do what OSU is alleging he did, any university hiring him would be incurring some liability. Though Waters has received a tremendous amount of support from the OSU community (well outside of administration), I do not think that those a step removed from the situation see things the same way.

Thursday, November 20, 2014

Springfield, Massachusetts Middle School Could Stand Trial Over Student's Sexual Assault

A federal district court judge in Massachusetts denied the Springfield School Committee's motion for summary judgment on a Title IX filed by the mother of a female student who was sexually assaulted by a male classmate at Duggan Middle School. The mother's complaint alleged that school officials were on notice due to a prior incident of inappropriate sexual contact by that same male student.  After that initial incident, teachers separated the students and ensured no further contact for the remainder of the school year.  But the next school year, both students were placed in the same class and no warning provided to their teacher about the prior incident.  The teacher allowed the students to be unsupervised together, which the male student took as an opportunity to commit sexual assault on two occasions.

The court determined that the mother's allegations on behalf of her daughter state a claim for institutional liability under Title IX, which requires plaintiffs to prove that school officials had notice of a threat of sexual harassment or assault and responded with deliberate indifference. Applying this standard, the judge determined that, despite the school officials' initial vigilance, their failure to provide any continuity the following year could, if proven, satisfy the standard.

The next step in this case will likely be a conference to set a timeline for trial. In many cases, however, surviving the defendant's motion for summary judgment provides the plaintiff with greater leverage for a settlement.

Monday, November 17, 2014

Court Dismisses Sexual Assault Case Against Northwestern

A federal district court in Illinois has dismissed a female student's lawsuit against Northwestern University that alleges the university did not adequately respond to her report of sexual assault by a professor.  The student claims that when she was a freshman, philosophy professor Peter Ludlow plied her with alcohol and took her to his apartment where he proceeded to kiss and grope her and sleep with her in his bed. The student reported this to another faculty member who informed a university official responsible for sexual harassment prevention. That official conducted an investigation and concluded that the student could not have consented to the professor's advances because she was intoxicated.  In her lawsuit against Northwestern, the student argues that, at that point, Ludlow should have been terminated.  The court, however, disagreed that Title IX required Northwestern to take that particular step. The legal standard for institutional liability in a Title IX lawsuit for damages is that the university respond to notice of sexual harassment with "deliberate indifference." Here, the university sanctioned Ludlow by putting him on leave, denying him a pay raise, prohibiting from having contact with the student in question and prohibiting his social contact  with students overall. Even though the university's response continued to cause the student "considerable grief," it did not qualify as deliberate indifference so as to give rise to liability. The court also denied a second claim that the university took retaliatory action against the student, finding no allegation that the adverse action the student alleged (namely, that she was rejected for a fellowship) was causally connected to her reporting the professor's assault.  Decision: Ha v. Northwestern Univ., 2014 WL 5893292 (N.D. Ill. Nov. 13, 2014).

Though the student's lawsuit against Northwestern has been dismissed, other litigation involving Peter Ludlow remains pending, including a a civil lawsuit that the student has filed directly against Ludlow under the Illinois Gender Violence Act.  Meanwhile, Ludlow has filed various lawsuits of his own.  In one, he sues the university alleging that it discriminated against him in violation of Title IX in the way it handled the investigation and sanctions in the student's case discussed above. This lawsuit also charges discrimination in the university's response to a second student's allegation of Ludlow's sexual misconduct. Ludlow's other pending lawsuit is against that second student for defamation.

The defamation case has raised concerns about the potential chilling effect that the threat of litigation could have on students' willingness to come forward and report sexual misconduct, especially when the accused individual is someone like a professor with the means and resources to respond with a lawsuit of his own.  One way universities could respond to this is to promise to indemnify those students who blow the whistle on sexual misconduct, meaning, that the university would defend them in court and cover any damages assessed.  While some worry this system could operate to let a student get away with filing a false claim of sexual misconduct, the argument in favor of indemnification posits that it's a far worse problem to allow the accused to leverage the fear of litigation to keep victims quiet. It does not appear that any institutions have such an indemnification policy, so it will be interesting to see if the example of Ludlow's defamation case against the student prompts any to adopt one.  

Saturday, November 15, 2014

Huntsville-Alabama Title IX case and how we understand violence and athletes

Erin has already written about the sexual assault case in Huntsville, but I want to put it in the larger context of what I have been seeing, thinking, and discussing.
We have been hearing a lot about sexual assault and intercollegiate football of late (Florida, FSU, Missouri) in addition to the domestic violence allegations against professional football players.
Also still in the news is the campus (and spreading) activism about sexual assault in colleges.

These are not separate issues, even though they sometimes are covered and discussed in different spaces and places--including different sections of the newspapers and different television stations. But these differences, in presentation, speak to the visibility of the issues.

In the movement to fight against and seek awareness of campus sexual assault, the voices and images have been dominated by young women. There has been a concerted effort on the part of activists, like those involved in Know Your IX, to ensure that these are not just white women, or even just women.

However, looking at the coverage of perpetrators in stories about sexual assault activism we see something much different. In the cases of sexual assault by male college students (who are not athletes) we don't see much at all. Their identities remain--in the media at least--largely invisible. This is somewhat unusual given that the media usually protects victim's identities. But in the stories of women who come forward to protest their treatment by and at their schools, the men remain unidentified and their race is presumed to be white. This is not a criticism of the media coverage, rather an observation--an observation that emerged out of the coverage of male student-athletes who commit sexual assault. The picture we see in these situations is of assailants and not victims. The assailants have been football or basketball players who are Black men.

The similarity--no discussion of race. We know that men of any race can be perpetrators, but the majority of perpetrators being named and seen are Black men, who are athletes. This perpetuates the stereotypes of Black men, especially Black male athletes, as inherently violent. This is not to say that these men are innocent or that the schools have handled these cases well; the latter is certainly not true--but that the picture skewed.

This is why the Huntsville case was an interesting interruption of sorts. Yes, a student athlete, but a hockey player. Again we know that hockey players can commit violence against women too (there are several current cases in the NHL), but we have not seen them in the coverage of sexual assault. And the athlete is white. (He is foreign-born, which of course does not negate his whiteness, but provides some complication of the good American white boy athlete image that runs in contrast to the violent Black athlete.)

This case, despite being just as egregious as the ones we have heard so much about, received much less media attention. One might argue that this is because college hockey is not as popular a sport as college basketball and football (though as UNH alum, Erin and I might disagree) or he is not a high-profile athlete. Besides Jameis Winston, though, none of the other accused student-athletes have been national names.

I am glad that the Huntsville case was resolved and wish the others were being better handled, but in addition to questioning how these cases are being handled, we need to question what we are seeing (and not seeing).

Thursday, November 06, 2014

OCR Finds Title IX Violations at Princeton

The Department of Education's Office for Civil Rights announced yesterday that it has entered into a resolution agreement with Princeton University after finding that the university violated Title IX in the manner on which it handled reports of sexual assault by students. OCR's findings derived from an investigation that was prompted by three complaints that the agency received from students who alleged to have been sexually assaulted on campus in the 2009-10 and 2010-11 academic years. The agreement obligates Princeton to correct aspects of its policies and procedures that resulted in the institution's failure to promptly and equitably respond to its students' reports of sexual assault, including instituting the correct “preponderance of the evidence” standard to investigate sexual assault and violence allegations, ensuring that parties' have symmetrical rights to appeal, and to provide prompt time frame of generally 45 days in which such matters should be handled.

Princeton is also obligated to re-visit all complaints of sexual misconduct that it received from the 2011-12 school year until now and evaluate those cases for whether its own response complied with Title IX's "prompt and equitable" standard as well as the institution's obligation to provide interim measures to the victim and address any hostile environment or retaliation experienced by the victim. Princeton must submit its review to OCR by February 1 of next year, and must also take "appropriate action to address any problems that it identifies in the manner in which these cases were handled."  According to the agreement, such appropriate action could include providing the victim with counseling or other support, an academic adjustment, or even reimbursement of educational expenses.  By way of example, I could imagine that if the victim's grade suffered as a result of the university taking too long to resolve her case, appropriate action might be revising her transcript as if she had withdrawn from the course.  Or if hypothetically the victim suffered repercussions from the university's botched response to her sexual assault that it ended up taking her longer to graduate, or if she had to move out of the dorm and lose her housing deposit because the university failed to take proper interim measures, then reimbursement of these added costs could be appropriate. 

One thing that resolution agreement makes clear, however, is that the university is not expected to re-open disciplinary matters that have already been concluded, even if it finds that the process was flawed in ways that could have been material to the outcome.  Even though the idea of rehearing is appealing from a fairness perspective, I'm guessing OCR considered this possibility to be too disruptive to people's settled expectations -- perhaps even including the victim's -- and not worth that emotional cost. All things considered, OCR seems to be saying that the best way to address problems with past sexual assault hearings is to acknowledge them, help the victim if possible, but leave the result alone. 

Tuesday, November 04, 2014

Alcorn State Football Player Remains Eligible Despite Prior Sex Offense

Inside Higher Education reported today about the controversy surrounding football player Jamil Cooks who was recruited by Alcorn State after committing sexual assault at his prior institution, the Air Force Academy.  This week the NCAA confirmed that his eligibility to play for Alcorn State is not affected by his status as a sex offender and that the association leaves it up to individual institutions to make decisions about whether to admit a student with a criminal record.

When the reporter for this story asked me about possible Title IX implications for Alcorn State, I immediately thought about Williams v. University of Georgia, a case in which a student who was gang-raped by a group of student athletes sued the school under Title IX.  A federal appellate court agreed that she had a strong enough case to make it to trial, since it was possible for a jury to conclude that the university met the standard for liability, which consists of notice and deliberate indifference. The plaintiff argued that the institution was on notice of the threat posed by one of the players who was recruited after had been dismissed from his prior institution for sexual assault.  

Alcorn State would appear to be on notice of a similar threat; after all, as noted by Inside Higher Education, about 90 percent of campus sexual assaults are committed by repeat offenders.  If Cooks re-offends at Alcorn State, the institution would certainly face a lawsuit in which the victim would argue that Alcorn State is liable for damages for having recruiting a known sex offender and not taking any precautions to ensure the safety of other students. The only thing that would save Alcorn State from a hefty damages award or settlement (University of Georgia paid a six-figure settlement) would be if it could somehow convince the court that its officials did not act with deliberate indifference towards the risk, like maybe if they subjected Cooks to supervision, or made him take sexual assault training, or had him on some probationary status. Such precautions would not necessarily be sufficient, but if, as I suspect, Alcorn State is not taking any steps to address the risk Cooks poses to others, keeping him on the team is -- as I said to the reporter -- a "ticking time bomb" of Title IX liability.

Thursday, October 30, 2014

Sexual Assault Litigation Roundup

Universities' response to sexual assault allegations have generated several lawsuits lately. Here is a round-up:
  • A female student sued the University of Alabama at Huntsville, alleging that campus police violated Title IX when they discouraged her from pressing charges against a male student -- a hockey player -- who had raped her. (The player has since confessed and left the country for his native Finland.)  She also alleged that the university officials responsible for the campus judicial system violated her rights under Title IX.  After she prevailed in an initial hearing that determined that he was responsible for rape and should be expelled, he appealed this ruling to the associate provost, who allegedly delayed his decision until the end of the hockey season and then downgraded the sanction to a two-month suspension.  
  • Two students, a male and female couple, sued the University of Houston to challenge the fact that they were expelled after having been found responsible for sexual misconduct against another female classmate.  That classmate reported that the male of the couple had sexually assaulted her and the female of the couple had caught them on videotape and then left her naked in the hallway of their campus apartment building.  The expelled students claim that their due process rights were violated in the manner in which they were expelled.
  • A male student expelled from Occidental College for sexual assault has filed a Title IX complaint with the Department of Education as well as a lawsuit against the college. After a disciplinary proceeding found him responsible on the grounds that she was incapacitated by alcohol to have provided consent, he filed a sexual misconduct charge against her on the grounds that he, too, was intoxicated.  He claims that the college's failure to process his claim demonstrates discrimination on the basis of sex. 

Jury Sides With School District in Basketball Hazing Case

Earlier this month, a federal jury in Tennessee delivered a verdict in favor the Rutherford County Board of Education, which had been sued by the family of three girls who alleged they were harassed and retaliated against when they complained that another member of their high school girls basketball team had poking them in the buttocks (a practice described during the litigation as "goosing" or "cornholing").  In August of this year, we noted that a federal judge had cleared the way for trial by denying the board's motion for summary judgment, a ruling that the plaintiffs could potentially prevail if their evidence was persuasive to a jury.  But after the trial was held this month, the jury was apparently not persuaded that school officials responded inadequately to their reports of the incident, and that they had appropriately disciplined the offending player.  Jurors apparently also believed the school's explanation that the girls had been kicked off the team for missing practice, not in retaliation.   According to the press, one of the plaintiffs six claims did prevail but the jury found damages in the amount of only one dollar.  (The court records are sealed because of the minor status of the plaintiffs, so I could not investigate further as to which claim this may have been.)

Monday, October 27, 2014

Former University of Toledo Softball Coach Files Discrimination Suit

Last week, the former softball coach at the University of Toledo filed a Title IX lawsuit against the institution in federal court, alleging that she was the victim of sex discrimination and retaliation and seeking damages and reinstatement to the position from which she alleges she was forced to resign. The coach, Tarrah Beyster alleges that she advocated for gender equity in her athletic department including by challenging: the disparity in multi-year contracts, which were granted to male coaches, and other gender-based pay inequity; the department's failure to assign a long-term grad assistant to the softball team like it did for the baseball team; preferential treatment for the baseball team in allowing it to keep the revenue from renting out its field; the department's failure to provide the dirt for the field or a new backstop to the softball facility, despite providing both to the baseball team; the department's requirement that the softball team to do its own fundraising to bring the outfield fence into compliance with NCAA regulations; and the singling out of softball to share a locker room with other teams, as well as requiring female coaches to share a locker room with referees and officials.  

Beyster alleges that, after raising these concerns, she endured retaliation in the form of a hostile work environment -- a former associate athletic director called her "Coach Bitch" -- as well as being charged with insubordination at a surprise disciplinary hearing in which she was forced to resign.  She further claims that the "insubordination" charge is pretext for retaliation by alleging that other coaches have engaged in more egregious offenses, like having relationships with their students, without being fired.

Retaliation claims by coaches and administrators are increasingly common in college athletics, especially in the wake of a 2006 Supreme Court decision affirming the statute's application to retaliation, and plaintiffs have successfully obtained verdicts or settlements in a number of them. For examples, see here, here, here, here, here, here, here, here, here, and here.

Tuesday, October 21, 2014

Department of Education Releases New Clery Act Regulations

Yesterday the Department of Education released new regulations implementing the revisions to the Clery Act imposed by Congress when it reauthorized the Violence Against Women Act last year. The Clery Act requires colleges and universities to report statistics on crime that takes place on campus and in related areas. Specifically, VAWA required that Clery’s existing requirement to include sex offenses like rape and sexual assault in their annual security reports be expanded to include other sex offenses including dating violence, domestic violence, and stalking. VAWA also required that colleges and universities include in their reports information about their policies and procedures for preventing and addressing those offenses when they occur.

The Department of Education’s job in promulgating regulations was to flesh out the details of those requirements, such as by providing definitions of the newly-included sex offenses, as well as the content to be included in the institution’s disclosures about policies and procedures.  The process of creating those regulations began last year when a committee of experts representing a variety of stakeholders convened to help negotiate a draft of these proposed rules.  In June, the Department published the draft and opened it for public comment.  The final rule announced yesterday contains no surprises in the form of major departures from the earlier-published draft.  It does include insight into the agency’s reasoning for rejecting suggestions from commenters that certain changes be made.

Here are some highlights of the new regulations:

It's all about the definitions. Definitions are a big part of the new regulations, which seek to ensure that institutions are reporting on crimes and offenses in a consistent manner.  However, the Department pushed back on suggestions that the regulations provide a uniform definition of consent as it used in the description of sexual assault and other sex offenses. For one reason, an institution’s annual security report must include all offenses that are reported, not only those that result in discipline that turns on a precise finding of the lack of consent.  For another, states use different definitions of consent in their own laws, a fact that could cause confusion and make reporting more burdensome for institutions in those states whose definition differs from whatever definition the Department could have required. I think, in addition, that Title IX enforcement provides some assurances that institutions won't vary too dramatically from suggestions the Department of Education and the White House have already provided (here and here, e.g.) for defining consent as voluntary, revocable, not implied by past relations, and not applicable where the individual is impaired, unconscious, or asleep.

Trans-inclusive Security Reports. The requirement that colleges and universities report statistics on hate crimes has been amended to include crimes motivated by the victim’s gender identity, which should lend visibility and transparency to campus violence targeting transgender and gender-nonconforming people.

Prevention and Intervention Must be Addressed. Colleges and universities must describe their “primary prevention and awareness programs” related to sexual violence, including the institution’s policy prohibiting such conduct, its policies and procedures for dealing with sex offenses that are reported, and its ongoing efforts to promote bystander intervention and prevention. In requiring efforts aimed at "primary" prevention the Department is signaling that it requires institutions to go beyond informing students how to keep themselves safe, but to target and prevent "primary" offending behavior itself.

No Standard of Evidence Requirement.  The regulations’ requirements for the substance of disciplinary procedures that must be included are compatible with the Department of Education’s interpretations of Title IX in that both require institutions to provide symmetrical rights to the victims and accused.  One difference, though, is that the new Clery regulations do not require institutions to use any particular standard of evidence during a disciplinary proceeding (only that they report whatever standard they use).  The Department's analysis makes clear that "A recipient can comply with both Title IX and the Clery Act by using a preponderance of evidence standard."  Still, I regret that the Department has missed an opportunity to elevate the preponderance standard from a requirement imposed by agency guidance (which can easily be revoked by a subsequent presidential administration) to the status of binding regulation that is more difficult to change.  

Attorneys May Serve as Advisors.  Another controversial issue addressed in the Clery regulations regarding the disciplinary process is the role of the advisors to both the victim and the accused.  The regulations require institutions to allow students to be represented in the process by an advisor of their choice, and any restrictions on the advisor's role must apply symmetrically to both parties.  Some commenters argued that the regulations should prohibit attorneys from serving as advisors, in order to prevent the process from becoming judicialized and potentially more complicated, expensive, and unfair to whichever side cannot afford an attorney.  The Department thought those concerns were best addressed by institutions in their decision on whether and to what extent to limit the advisors' role. 

These regulations are effective as of July 1, 2015, but should likely inform institutions existing efforts to comply with the amended Clery Act, which has already gone into effect.

Saturday, October 18, 2014

Attorneys Fees Awarded to Prevailing Plaintiffs: An Example from Delaware State

The American judicial system typically requires each party to pay their own way when it comes to attorney fees -- in contrast to, say, the British system that has a "loser pays" approach.  The American system can make it difficult for individual plaintiffs to get justice in some cases. If the plaintiff is seeking large monetary damages, she may be able to make an arrangement to pay an attorney on "contingency" or out of the proceeds of the case. But if the plaintiff is seeking non-monetary relief, such as an injunction, this is not possible, and either she, or a pro bono attorney, would have to bear that cost. 

Fortunately, a statute applicable to civil rights laws litigation permits courts to make exceptions to the "pay your own way" American rule and require defendants to pay for the plaintiff's expenses of hiring an attorney and litigating the case. Sometimes, there are disputes about how much is reasonable to expect the defendant to pay, and those cases end up producing litigation themselves (and thus, get on my radar for possible fodder for blog).  That's what has happened in the Delaware State litigation.  You may recall the litigation challenging the university's decision to discontinue its women's equestrian team.  In approving a consent decree to settle the case on plaintiffs' terms, the court ordered the university to pay the plaintiff's attorneys fees -- not only for the cost of litigating the case, but also for the cost of continuing to monitor the consent decree.  When the plaintiffs lawyers -- which include the nonprofit Women's Law Project -- requested fees for monitoring the consent decree from Delaware State, Delaware State argued that some of the things they had charged for were not reasonable. Recently, the district court rejected Delaware State's argument and ordered it to pay what the plaintiffs had requested -- a total of $77,293.64.  This was on top of the $475,442.21 that Delaware State had to pay the plaintiff's attorneys  back in 2010 to litigate the case in the first place.

The substance of this particular dispute over attorneys fees, as well as the result, is not particularly unusual or noteworthy, but I offer it here as an example of this important aspect of civil rights litigation. The ability to recover attorneys fees to litigate a case makes it possible for plaintiffs and their lawyers to afford the cost of seeking justice.  Moreover, that Delaware State has had to pay over half a million dollars -- in a case that settled even before the lawyers had to litigate motions for summary judgment, a trial, or an appeal, no less! -- also serves as a cautionary tale to erstwhile defendants that even where money damages are not on the line, it doesn't pay to discriminate.

Decision: Foltz v. Delaware State Univ., 2014 WL 4954304 (D. Del. Sept. 30, 2014) (awarding attorneys fees for continued monitoring of consent decree). 

Friday, October 17, 2014

Another California School District Settles Title IX Case Over Harassment and Discrimination of Transgender Student

The Department of Education announced this week that it has entered into a resolution agreement with the Downey Unified School District. The Department had been investigating a complaint filed on behalf of a transgender student who has consistently asserted aspects of her female gender identity since enrolling as a kindergartner in the Downey public schools. The complaint alleged that while she was an elementary student, the student was the subject of discrimination on the basis of gender identity when school officials disciplined her for wearing makeup when other female students were allowed to do so. As part of her punishment, she had to write a letter of apology for making male students uncomfortable. She was also allegedly the victim of  verbal harassment including being called homophobic and sexist slurs by other students on the bus, to which school officials failed to adequately respond. After she fully transitioned to female during her fifth grade year, school officials refused to use her female name.  While some things improved when the student graduated to a middle school that respected the students gender identity, name and pronouns, the student was still subject to peer harassment and the complaint suggested some school-wide measures that were not taken to try foster a more tolerant and inclusive climate.  Based on her experiences in elementary school and middle school, the student wanted assurance going forward that high school administrators and faculty will be responsive to harassment, respectful of her gender identity and expression, and willing to treat her just like any other girl.

The resolution agreement addresses the student's concerns for the future by requiring the school district to "continue to treat the student the same as other female students in all respects in the education programs and activities offered by the District, including access to sex-designated facilities for female students." The district is prohibited from disciplining the student from "appearing in a manner that does not confirm to stereotyped notions of masculinity and femininity" and must remove all past such disciplinary notations from the student's records. Additional measures the school district will have to undertake include hiring a consultant to help the school address the climate issues giving rise to harassment, conducting mandatory training for district administrators to ensure they are responding appropriately to gender non-conformance- and gender-based harassment, and reviewing its policies to ensure that transgender students are provided every opportunity to participate in all programs "in a manner that does not discriminate based on sex, gender identity or gender expression."

Like the Arcadia school district resolution, which was similar, this resolution is an important signal of a school district's obligation under Title IX to protect equal rights of transgender student.  While the requirements that school districts appropriately respond to gender-non-conformance-based harassment is not a new or groundbreaking application of Title IX, other aspects of the resolution are cutting edge. In particular, the requirement to treat transgender student like any other girl with respect to sex-designated facilities is part of an emerging definition of sex discrimination that enhances Title IX's effectiveness to challenge transgender student's exclusion from the bathrooms, locker room, dormitory, or sports team that comports with their gender identity. 

Thursday, October 16, 2014

In my inbox: Trans students at women's colleges

It was a trans-centric day for my email inbox.

First I received this petition from asking Smith College to adopt a more trans-inclusive admissions policy. This is somewhat similar to a petition from last year that was protesting the denial of admissions to a transwoman because her FAFSA identified her as male and after she was told by someone from Smith that this would not be an issue.

The petition, created by a group called Smith Q&A, actually includes a recommended admissions policy which they modeled after the one Mills College (in California) recently adopted. It is asking the administration to change its policy requiring female gender markers on transcripts and letters of recommendation for transwomen seeking admission to the college in light of the constraints--legal, emotional, cultural--that transwomen face regarding "official" change of gender or even being out as a transperson.

Interestingly, the recommended admissions policy does not extend its categories for admission as far as the one announced earlier this fall by Smith's Pioneer Valley neighbor, Mt. Holyoke College.

Though the policy created by Smith Q&A does allow for women who transition to men while on campus to remain on campus and enrolled, it does not allow for those men who are seeking admissions after already or in the process of transition.

I suspect that Smith administrators and trustees will be addressing this (publicly) before the end of the academic year given the attention the MHC announcement received (and the comparisons being made to Smith) and because other women's colleges are also grappling with this issue...

One of the other emails I received today was from a student who was pointing me towards this NYT article about transmen at Wellesley. Similar to what is happening at other women's colleges, transmen are becoming a more visible part of the student population with some transitioning while at school and others entering somewhere along their (own personal) transition process. And this visibility has some people quite concerned. If women's colleges are for women, as some point out, what does it mean when students who do not identify as women are entering leadership roles on campus? One student whom the story focused on entered Wellesley knowing he was transmasculine but was not out to his family and checked female on the admissions application. He chose the school because he felt it would be a safe space for him.

This is an issue being raised as part of the discussion. It is not simply about who women's colleges are for? But what are women's colleges for? What is their mission in the 21st century? These are the questions women's colleges should be asking themselves--and many seemingly are doing so already.

And this is an issue that exists in sports as well. Erin and I have explored the role of women's sport spaces and their role in women's community as part of our research. We looked at recreational sports and the history of women's-only rec sports asking similar questions. Who is this for? What purpose does it serve? What changes occur when transmen are included in these spaces?

Interestingly I see parallels in the historical missions of many women's colleges and women's-only sport spaces. They were created as an environment (relatively) free from male influence, to empower women, to provide access to something that had been historically male-dominated. 

I understand why the presence of transmen feels threatening to some of these institutions, but I think more soul-searching needs to be done and more external searching for multiple voices from many constituencies about the meaning and purpose of women's spaces in our culture.