Wednesday, July 30, 2014

Senators Propose New Law Aimed at Campus Sexual Assault

Today a group of bi-partisan senators proposed new legislation in Congress called the Campus Accountability and Safety Act, aimed at addressing the problem of sexual assault on college and university campuses.  Included in its provisions are:
  •  a required annual survey of students at every university in America to help understand the climate of sexual violence on campuses
  • requirements that all campus personnel who deal with sexual violence in some way receive specialized training
  • a requirement that colleges and universities provide confidential advisors to serve as a resource to victims of sexual violence by helping to coordinate their support services, educational accommodations, and dealing with campus authorities and law enforcement
  • a prohibition on colleges sanctioning a student who reports sexual violence in good faith (such as punishing the victim for underage drinking) 
  • requirement that the Department of Education publish the names of all schools with pending investigations, final resolutions, and voluntary resolution agreements related to Title IX
  • a requirement that colleges and universities use a uniform process of campus disciplinary proceedings that doesn't allow, say, athletic departments to handle sexual violence in a different way than the rest of campus
  • a requirement that colleges and universities coordinate with local law enforcement to delineate respective responsibilities and areas of jurisdiction
Some of these provisions would codify (and thus make mandatory) recommendations contained in the White House Task Force report that came out last May, while others echo requirements in the Office for Civil Rights 2011 Dear Colleague Letter (which, unlike the requirements contained in a statute, could be easily revoked by a future Secretary of Education serving under a different presidential administration).  But one additional provision of CASA is (as I told the New York Times) a potential "game changer" and that is the addition of financial penalties other than federal funding withdrawal as a tool the Department of Education can use to deal with schools that violate provisions of Title IX. This is considerably important.  Because it the severity of revoking federal funds (leaving an institution's students without financial aid, most notably) the Department of Education has never and probably will never revoke federal funding over Title IX compliance.  And schools know this, so the law provides little incentive for them to proactively comply.  Under this new law, however, schools would have more to fear than just a scolding and a compelled promise to prospectively comply.  They could potentially be fined for an amount equal to 1% of their total operating budget. I would expect the threat of such a penalty to more effectively motivate compliance than Title IX's current enforcement mechanism.

The bills co-sponsors are Claire McCaskill (D-Mo.), Dean Heller (R-Nev.), Richard Blumenthal (D-Conn.), Chuck Grassley (R-Iowa), Kirsten Gillibrand (D-N.Y.), Kelly Ayotte (R-N.H.), Mark Warner (D-Va.), and Marco Rubio (R-Fla.).  The fact of bipartisan support certainly increases the bill's odds of passing into law, though it is also worth noting that other Title IX type laws proposed in Congress have not necessarily passed just because of bipartisan support.  (I'm thinking of the High School Athletics Accountability Act, the Safe Schools Improvement Act, and the Student Nondiscrimination Act).  We will have to wait and see if CASA gets taken more seriously because of the high profile nature of the problem of campus sexual assault. 

Even with exemption, George Fox not off hook

As we noted, George Fox University was granted a religious exemption allowing it to enforce its policy that students will be housed by their anatomical sex.
But the case for the transgender student who is asking to be housed with other male students is not over. Even though the university is now exempt from a Title IX lawsuit over this, the Justice Department is looking into whether the university's housing policy violates federal housing laws banning discrimination.
We were pleased to see our friend and colleague Jennifer Levi, who is the director of the Transgender Rights Project for GLADD, weigh in:
“What we’ve learned in the few cases that have gone forward is that the only humane and consistent way to determine a person’s sex is based on their lived experience as male or female, that any other approach, whether anatomy or chromosomes, will discriminate against some people."

George Fox did change its policy to say that it would house students based on anatomical sex rather than birth sex (the original policy). As I already noted, this is both a very conservative and burdensome standard. And I have a hard time believing that they will start to check the anatomy of every student to make sure he or she is housed correctly. But if they do, they could call on the IOC and IAAF for some advice. Those organizations have a long history of trying to determine gender based on anatomy. Of course, even those groups have given that up and are now using (in equally problematic ways) chromosome testing. 

Tuesday, July 29, 2014

Understanding the Religious Exemptions from Title IX

We've blogged recently about a handful of religious schools -- namely George Fox, Simpson, and Spring Arbor universities -- that have been granted an exemption from complying with Title IX's application to transgender students.  This post is intended to provide more background and context for the process and scope of Title IX's religious exemptions more generally, which is something that until now has not really come up a lot -- at least since we've been blogging.

First, as I mentioned in my George Fox post, the basis for the religious exemption is contained in the statutory text of Title IX.  See 20 U.S.C. 1681(a)(3) (exempting "any educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization"). Title IX's implementing regulations, promulgated in 1975, also acknowledge the religious exemption and require institutions seeking the exemption to file a statement with OCR "identifying the provisions of this part which conflict with a specific tenet of the religious organization." 34 C.F.R. 106.12.

The Department of Education's Office for Civil Rights requires educational institutions to submit paperwork (called an "Assurance of Compliance") when they receive federal funds, promising that they will comply with Title IX and the other civil rights law that are conditioned on federal funds.  In 1977, OCR (which was then part of the Department of Health, Education, and Welfare) published instructions for submitting the assurance.  Contained in that document were specific instructions for applying for the religious exemption -- included there because OCR contemplates that requests for exemption will be filed at that time, though that is not a legal requirement and institutions can apply for the exemption at any time. 

These instructions clarified three types of religious institutions that are eligible for the exemption -- criteria that OCR still uses today:

1. A school or department of divinity -- meaning, an institution that trains ministers and other members of the clergy, like a seminary. This category of exempt-eligible schools seems influenced by and consistent with, the recognized doctrine of "ministerial exemption" from civil rights laws.  The First Amendment's protections of freedom of religion limits the degree to which government can interfere with such core church functions as hiring (and here, training) personnel that are integral to the practice of religion -- like clergy and other religious leaders.  

2. An institution that requires its faculty, students, or employees to belong to the religion of the organization by which it claims to be controlled.  My impression of this category is that it borrows from the legal distinction in public accommodations law between organizations or establishments that are open to the public and those that only open to members -- the latter receiving more latitude to exclude people in ways that would otherwise be unlawful discrimination.  In general, the justification for this type of exemption is, again, rooted in the First Amendment -- the idea being that forcing an organization to accept as members people who do not adhere to its beliefs interferes with the practice of religion.  Notably, however, religious undergraduate institutions are already permitted to discriminate on the basis of sex in admissions by virtue of being private.  So this category contemplates allowing religious institutions to take that discrimination one step farther: to discrimination in some way in the manner that students or faculty are treated, rather than whether they are eligible to be admitted or hired.   

3. An institution whose charter, catalog, or other official publication contains an explicit statement that it is controlled by a religious organization or an organization thereof or is committed to the doctrines of a particular religion, and that members of its controlling body are appointed by the controlling religious organization, and that it receives a significant amount of financial support from the controlling religious organization.  This category thus seeks to differentiate between private institutions that have a religious affiliation and tradition (a category that, as Kris pointed out, could include virtually all private colleges founded before 1900) and institutions that are actually subject to religious control -- the latter requiring (a) an express statement of that control by or adherence to that religion; (b) trustees or regents, etc. who are appointed by a religious organization; and (c) financial support from that religious organization.Reportedly, all three educational institutions that have received religious exemptions in recent weeks -- George Fox, Simpson, and Spring Arbor universities -- qualified for the exemption under this third category.  George Fox --whose religious control I questioned in an earlier post -- is in fact controlled by the Northwest Yearly Meeting of Friends, which appoints four of its seven trustees.  Also notable is that it appears OCR is open to revisiting the question of religious control in the event of a challenge, as the Assistant Secretary provided assurance that the agency would "potentially reach out to verify further whether a school is controlled by their stated religious organization" if it receives a complaint for something potentially subject to an exemption that has been granted.

In addition to being controlled by a religious organization, the exemption only applies to institutions whose religious tenets conflict with some aspect of Title IX compliance.  Historically, the most common example of such conflict related to regulations prohibiting discrimination on the basis of pregnancy.  For example, one exemption considered in 1987 congressional report described an exemption for a school whose religion prohibited unmarried pregnant student to continue to live on campus, or to have unmarried female employees serving as role models for female students. Other early exemptions related to sports, physical activity, and modesty, such as an exemption that would allow a school to prohibit "mixed swimming" and another to potentially restrict the athletic opportunities of female teams by sending home opponents who show up in immodest uniforms.

Recent requests for exemption have focused on Title IX's application to transgender students, accommodation of whom would require compromise of the belief that God created man and woman to procreate heterosexually.  For example, Simpson University stated its belief that it is sinful to "construct one's own sexual identity by medically altering the human body, cross dressing, or similarly practicing behaviors characteristic of the opposite sex."  Because their religions do not validate transgender identities, Simpson and the other exempt universities sought permission to exclude transgender students from gender-consonant housing so as to avoid sinful "cohabitation" between members of the "opposite sex."  On related grounds (i.e., opposition to the mixing of "different" sexes) they received permission to exclude transgender students from locker rooms, rest rooms, and athletic teams that don't accord to their assigned sex at birth. 

In conclusion, it appears that OCR does use published criteria to isolate those religious institutions that are eligible for the exemption by virtue of being subject to a religious organization's control.  It also appears to have required an articulated conflict between Title IX compliance and the institution's faith.  Personally, I don't agree that Title IX should have provided educational institutions that accept federal funds and which already have permission to ignore Title IX when it comes to admissions so much latitude to discriminate. That's an awful lot of having one's cake and eating it too.  But after digging into the matter a little deeper I am at least reassured that OCR is applying the exemption in a manner consistent with the text of Title IX.

Friday, July 25, 2014

Two more religious exemptions

Spring Arbor University and Simpson University have both asked for and been granted Title IX exemptions based on religious grounds from the Department of Education. This means that the Michigan and California schools will be allowed to discriminate on the basis of gender identity.
George Fox, as we have written about, also received a religious exemption after asking for one that would allow them to deny housing (all of which is sex segregated) to a transgender student.
Are we seeing a pattern here?
The DOE is saying there is very little it can do about religious exemptions. But what standards are being applied when assessing a request for religious exemption?
A representative from Spring Arbor University has said that the school is "Christ-centered." But what does that mean? They say they are affiliated with the Methodist Free Church. But what kind of affiliation creates a case for exemption?
Spring Arbor has already dealt with this issue after keeping from the classroom a professor who transitioned while working for the school. There was an EEOC complaint that the university settled in 2007 (unclear what the settlement entailed).
Simpson is affiliated with the Christian and Missionary Alliance. The latter's website lists the school as one of six "education centers." I imagine the other schools will also be asking for exemptions.
The term affiliation needs to be clarified--what is the difference between affiliation and control?--as do the criteria for religious exemptions--or at least made more transparent.

UTexas learning from others' mistakes?

Two University of Texas football players were arrested this week on various charges related to a June assault of a female student in the UT dorms.
The woman reported the assault immediately.
Police found text messages between the two men who were trying to get their respective stories straight. There is also at least one photo taken during the assault.
Not a great time for such attention for both first-year football coach Charlie Strong and embattled president Bill Powers. Strong suspended both players for an indefinite time period and there is a school investigation underway and expected to be completed before the end of the summer.
It seems from here that UT is taking the right steps. Investigations were started and will completed in a timely manner. The players were suspended from the team. I suspect the conclusion of the school's investigation will result in protections afforded to the victim. No word on what services the university has offered her in the wake of the incident or whether the men were allowed to stay on campus while both investigations were pending.
This case is a contrast to FSU which waited a significant amount of time before investigating, which never disciplined quarterback Jameis Winston.
And hopefully UT will take a lesson from the Arizona State case where the university allowed back in the dorms a football player who had been kicked out for aggressive behavior against women when he was attending a summer program. When he returned in the fall, he raped a student. The university settled for $850,000 in 2009--five years after the incident.
Obviously this is just the start. Criminal proceedings will follow as well as university sanctions. But UTexas is on the right path at the moment with both athletics and administration working together.

Thursday, July 24, 2014

Ohio State Marching Band Director Fired Over Sexual Harassment

Today it was reported that Jonathan Waters, the director of Ohio State University's marching band, was fired for tolerating sexual harassment among the students in the band. In response to a parent's complaint about the band's secretive and sexualized atmosphere, the University conducted an internal investigation into the matter and produced a report detailing its findings. Among them, the investigation revealed that Waters and other staff members supervised an annual tradition that involved students marching into the football stadium in their underwear at midnight.  Another set of findings involved the sexualized nicknames assigned to band rookies by the upperclassment, which Waters knew about and sometimes used.  The findings also detailed sexualized content in band newsletters, songs, and various tests, challenges required of rookies that Waters knew or should have known was going on.

OSU concluded based on these findings that the band consisted of a sexualized and hostile environment, that Waters knew about and did not take adequate steps to prevent.  Acknowledging its duty under university policy and Title IX, the university terminated Waters and vowed to realigm the band with the University's mission through stronger oversight, policies and procedures. This seems to be a good example of proactive behavior on the part of a university to uncover and respond to Title IX problems.

Wednesday, July 23, 2014

FSU finally addressing sexual assault

In April, I wrote about the expose into the police handling of the investigation into allegations of sexual assault against quarterback Jameis Winston. In that post, I noted the lack of effort on the part of the university to address the issues, seek accountability, and make efforts at changing the culture and policies at FSU.
In a move that flies in the face of my theory that some schools are making changes to sexual assault policies and procedures for the purpose of PR, FSU announced this week that it would be hiring a Title IX director and two sexual violence coordinators. My surprise is two-fold. One, an announcement from a university in the summer generally gets less notice and two, the hirings are being spun as proactive:
Florida State is not waiting for the federal government to complete an investigation into the university's responses to sexual assaults before it adds additional experts to the staff and adopts a new model for making students aware of their responsibilities for maintaining a safe campus.

They have waited a year and a half, however, after the initial triggering event. Winston allegedly assaulted a former FSU female student in December of 2012. The university is under new leadership which might be part of the impetus. An interim president took over in early April.
Of course, the investigation will likely result in other necessary changes.

Tuesday, July 22, 2014

UConn settles lawsuit

Late last week the University of Connecticut announced it had settled the lawsuit brought by five current and former female students. The women were accusing the university of mishandling their respective sexual assault cases. The $1.3 million settlement brings with it a no guilt finding and the withdrawal of the names of several of the women who had also filed a complaint with OCR. There are more names on that complaint, which continues to be investigated.
The settlement will be divided among the five women with each receiving a different amount. What we found interesting was that the bulk of the money, $900,000, will go to the last woman who joined the lawsuit, a former student who was a first-year student at the time of her assault. She was also a goalie on the hockey team who was dismissed from the team after reporting she was raped by a member of the men's hockey team. Her coach, who left the team at the end of this past season, said she was not "stable enough" to play on the team. The university has said it was the goalie's knee injury that lead to her release from the team. Obviously the amounts each woman will receive were carefully negotiated, but we have not heard the legal rationale for the large sum awarded to her specifically. It could be because of the loss of the opportunity to play college hockey, though there is no obvious monetary value there and the university did refund her tuition and expenses from the time she spent at UConn.

George Fox updates transgender policy

After being granted a religious exemption that allows the university to not house transgender students based on their gender identity, the school has updated its policy as it relates to this issue. As Erin noted the other day, the exemption itself is a little suspect, and the new policy may be new to GFU, but it is hardly an update.
The new policy states that transgender students can be housed based on their gender identity if they have had sex reassignment surgery, specifically genital surgery. This is a highly restrictive policy, one that we have seen at the most competitive levels of sport (i.e., the Olympics and other international sport organizations) but one that has received considerable critique and certainly has no rationale when applied to students. The World Health Organization has expressed its disdain for policies that require surgery in order for transgender people to receive rights. Surgery is one, expensive and two, not always the desired path for many. Additionally, the health insurance GFU offers its students does not cover medical expenses related to gender transition including hormones and surgery.

Monday, July 14, 2014

Thoughts on Hobart and William Smith Colleges case

Walt Bogdanich's article this weekend on the case of Anna, an undergraduate at William Smith College, who was sexually assaulted her freshman year likely raised awareness of campus sexual assault and shocked many readers. The details of Anna's story of her assaults and how the school handled them are disturbing. They are not unusual, though. And unfortunately, though horrifying, they are not shocking to many of us who have been talking about this issue for years.
There are almost 70 open investigations into schools' handling of sexual assault. Schools are added weekly.
Anna mentions that one person on her panel questioned her about how she conducted herself at the party at which she was assaulted making her think that administrators are a little out of touch with student life on their campuses. What this suggests is more than just that some administrators don't know that grinding is the preferred form of dancing, but that they are not aware of the culture on their campuses.
Changing campus culture has been a focus of the movement.
But is it happening?
The Hobart and William Smith Colleges case points to no. Again, the story is not shocking, but it is dismaying. Because it looks like the school was more concerned with handling this quickly, than with handling it properly.
Members on Anna's panel were not trained. They lacked information about sexual assault and their own school culture; they asked irrelevant questions. The hearing was convened before the results of Anna's rape kit were known to all. They did not protect her anonymity. She had no advocate with her. A 60-day window is provided for investigations; this one took less than two weeks.
This is not simply an unfortunate situation. This is a situation born out of public image.
The student activism on this issue and the government response has put every school on notice. And public images--something I myself have said to media outlets is a motivator for compliance--are suffering. Groups like Ultra Violet are also pushing the public image aspect as they seek greater transparency about the number of sexual assaults on campuses and how they are handled.
But hearing about Anna's case has made me wonder if public image concerns are overriding actual changes to campus culture and policies and procedures.
But the image versus compliance issue was most palpable when I read this:
College administrators have their own incentive to deal with such cases on campus, since a public prosecution could frighten parents, prospective students and donors. Until last year, Hobart and William Smith’s chief fund-raiser also helped oversee the school’s handling of sexual assaults. The two functions are now separate.

If a school is approaching sexual assault as a PR issue, there will be no compliance, no change in culture.

Saturday, July 12, 2014

George Fox University's Religious Exemption From Title IX Compliance

George Fox University is a Christian institution in Oregon that was founded on Quaker principles.  In April, it denied a transgender student named Jayce M. the right to live in on-campus housing consistent with his male gender identity, offering him instead the opportunity to live with other men in off-campus housing if certain conditions were met.  With the help of attorneys, Jayce filed a Title IX complaint with the Department of Education's Office for Civil Rights, arguing that the decision discriminated against him on the basis of gender identity.  The complaint seemed poised to allow OCR the opportunity to give effect to the broad, trans-inclusive definition of sex discrimination that it has lately been espousing, such most recently in its  guidance on sexual assault. But instead, OCR has granted a religious exemption to George Fox that has effectively immunized the institution from Jayce's Title IX challenge. 

What is the legal  basis for a religious exemption from Title IX?  The statute itself exempts "any educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization."  20 U.S.C. 1681(a)(3).  This effectively creates two conditions: (1) that the school actually be controlled by a religious organization, i.e., not just a private school with a certain religious tradition; and (2) a showing that Title IX would apply in such a way that is inconsistent with the organization's religious tenets. Additionally, Title IX regulations require institutions to file a statement with OCR "identifying the provisions of this part which conflict with a specific tenet of the religious organization." 34 C.F.R. 106.12.

Thus, the exemption is narrow in scope -- in that it only applies to the aspects of Title IX for which the institution can articulate a conflict with religious tenets -- and narrow in application -- in that it only applies to institutions that are run by churches, not just that happen to have a religious outlook or tradition. Both limitations are important to ensure that Title IX doesn't contain a giant loophole that offers any private school a justification for using federal money in the service of discrimination that would otherwise be prohibited by law.  Interestingly, when I looked up the business status for George Fox University, I learned that it is incorporated as "public benefit" non-profit corporation, and not a religious non-profit corporation (which is also a type of corporation that exists in Oregon).  In other words, I am having trouble confirming that George Fox University, despite its Quaker heritage, is actually controlled by a religious organization as the statute requires.  (In contrast, when I went onto Notre Dame's website, it took me two seconds to find the name of the religious organization that controls the school.)   It is also interesting to note, as this article does, that GFU applied for the religious exemption after Jayce had already applied to live in male housing.  One would think that if Title IX's application to transgender students conflicted with some fundamental tenet of Quakerism, the institution would have applied for the exemption in advance, in the manner contemplated by the regulations.  Applying for it in retrospect gives the appearance of a defensive move.

Just recently, the Supreme Court ended its Term with a decision that allows religious colleges to opt out of the requirements of the Affordable Care Act to make coverage for birth control available to employees and students. If this decision emboldens more religious institutions to claim exemptions from other laws as well, like Title IX, it will be increasingly important for OCR to carefully scrutinize all applications for religious exemption to ensure that both requirements -- the religious tenet conflict AND control by a religious entity -- are met. 

Friday, July 11, 2014

Twice accused athlete going to third campus?

The campus sexual assault survey administered by Senator Claire McCaskill's office (more on the survey shortly) found that 22 percent of schools responding said that their athletic departments handle sexual assault accusations against their student-athletes.
This is obviously a problem (and I suspect that it is larger than the survey reports) as evidenced by many cases (University of Montana, University of Iowa,  University of Michigan, University of Missouri, to name a few) we hear about.
The cover-ups, of course, happen both with assaults committed by athletes and non-athletes. The survey results point to the need for every case to be handled the same way by the same committees/commissions/boards.
But the somewhat separate issue not addressed is that the cover-ups among athletic departments have lead to student-athletes being dismissed as quietly as possible--usually suspension from team and departure at the end of the semester--sometimes facing no formal sanctions from the institution. Where do they go? Some of them go to other schools and continue to play sports--and commit sexual assault.
As we wrote about earlier this summer, Brandon Austin started playing basketball at Providence College. Accused of sexual assault but not criminally charged, he transferred to Oregon after being suspended from the PC team. In June he and two of his teammates where forbidden from returning to school for ten years--again because of sexual assault charges. He has been looking at a community college in Kansas which is known for feeding basketball players to DI schools.
But as more attention is drawn to these cases, these covert transfers might become less common. One of the other suspended Oregon players had intended to go to St. John's; but the school has decided not to recruit him.

Tuesday, July 08, 2014

Krakauer digging into Montana case

We have covered the cases and investigations into sexual assault at the University of Montana, a place TIME referred to as a rape capital. One of the early posts was from Erin and about the accusations against members of the football team. The football coach and AD were fired. In this post Erin mentions additionally that a restraining order was taken out against the quarterback. It is this case that is of interest to Into the Wild author Jon Krakauer who has asked for records related to the case be released. After our post about the restraining order, it seems that the quarterback, Jordan Johnson, was found by the university to be guilty of rape and was expelled. Except he wasn't expelled. He was suspended from the football team and reinstated in time to help the team to a 10-3 record in 2013. He was acquitted by a criminal court.
Krakauer wants the records from the university hearings, but because they are student records, the university will not release them. He has said failure to release the records of the education commissioner (he is looking for information about how the expulsion order was reversed) is a violation of state open record laws and the state constitution.
It will be interesting to see if  he can get that information and, of course, what he does with it.

Saturday, July 05, 2014

Lawsuit against University in Denver

A former student at University of Denver is bringing a lawsuit against the school for violating Title IX in the ways they handled her reported sexual assault.
The details, provided by the woman, seem--though awful--far less complicated than other cases we have seen in the past few years. She believes she was drugged at a party and then raped at a student's apartment. She reported the rape to the police as soon as she got back to her dorm. She was taken to the hospital. The school launched an investigation (the police investigation did not lead to charges). It is at this point that the victim feels things were handled improperly. She reports not being given all the information--in writing--about how to proceed during the disciplinary hearing. For example, she did not know she did not have to be in the room with her alleged assailant during the hearing.
A school representative claims that the lawsuit was motivated by the fact that the victim did not like the findings of the disciplinary hearing. The board found that the student did not realize he was forcing sex on the victim.
The finding does seem kind of "off" given the physical evidence. I do not know how DU defines consent, but it seems hard to believe someone who has been drugged can give consent. I'm not sure though, given these early details, how much of a factor the finding is in this case.