Monday, March 30, 2015

Court Dismisses Lawsuit Challenging the Clery Act Amendments

Last year we blogged about a lawsuit filed in federal court on behalf of a female student at the University of Virginia that was seeking to nullify the amendments to the Clery Act contained in the reauthorization of the Violence Against Women Act. The plaintiff had reported to her university that she had been the victim of sexual harassment and assault.  After investigating the matter, the university did not find the accused student responsible for the alleged misconduct. The student then filed a complaint with the Departments of Education and HHS, alleging that UVA violated Title IX in the handling of her complaint.  After the VAWA reauthorization, she filed this lawsuit seeking an order from the court that would compel the federal agencies to disregard the newly-amended Clery standards to the investigation of her case. She argued that these standards were weaker than Title IX's and therefore diluted its protection. Some of Clery's weaknesses, she argued, are its failure to codify a preponderance standard or a definition of consent.   

Last week, the federal court in D.C. dismissed the lawsuit based on an "erroneous interpretation" of the Clery Act amendments.  As the court correctly states, Clery and Title IX impose simultaneous, not alternative, requirements. Therefore, and as the Department of Education has since clarified, nothing in the Clery Amendments changes an institution's obligations under Title IX in any way.   The plaintiff apparently, and not unreasonably, wishes that Congress had endorsed the preponderance standard as a matter of statutory law (a stronger and potentially more lasting source of law than the Department of Education's interpretation on this issue) and that it had chosen to define consent.  Yet, Congress's failure to do this isn't actionable in a court of law.  The plaintiff is no worse off under the amended Clery than she was prior to those amendments.  While she may believe that the Clery Act amendments should have been stronger, that is a policy argument more appropriately directed at the political process.

Doe v. U.S. Dep't of Health and Human Servs., 2015 WL 1316290 (D.D.C. Mar. 24, 2015).

Friday, March 20, 2015

Sexual Assault Litigation Update

Numerous Title IX lawsuits have been filed recently, with claims stemming from incidents alleged to involve sexual harassment and sexual assault:
  • A female student has sued James Madison University for failing to adequately discipline three fellow students who sexually assaulted her during a spring break trip and then circulated a video of the incident among the student body.  She alleges that the university violated Title IX by delaying the disciplinary process for over a year before finally handing down suspensions that will not kick in until the offending students have graduated.  JMU is facing an investigation by the Department of Education into this same matter, as we have earlier noted
  • A male graduate of Boston College has sued his alma mater for disciplining him for sexual assault while he was a student.  He alleges that the institution did not provide a fair hearing before finding him responsible for sexual assault and suspending him for three semesters.  The student eventually graduated and unsuccessfully prevailed upon the Boston College to reexamine his case.  The lawsuit seeks $3 million in damages.  
  • Parents of a fifth-grade student in Grand Rapids, Michigan, have sued the school district for suspending the boy for ten days for sexual harassing comments and gestures that he allegedly made, and for expelling him after he allegedly touched a female student inappropriately.  The lawsuit alleges that school officials violated the boys' right to due process by not determining in either incident whether the accusations were accurate before taking disciplinary measures against him.  
  • A Harvard University professor has sued the institution, alleging that she was denied tenure in retaliation for criticizing its handing of sexual assaults. The plaintiff, anthropology professor Kimberly Theidon, alleges that she was warned that speaking out would hurt her during tenure review; she also claims that she quickly turned from someone who was assured tenure into someone being denied tenure once she began advocating for sexual assault victims. 
  • A male student alleged to have sexually assaulted a female graduate student at Stony Brook University, has sued his accuser for defamation and seeks damages of $10 million.  We have already blogged about the accuser's suit against Stony Brook, in which she alleges that the university mishandled her case before finding him not responsible.  She has also sued him directly.

Friday, March 13, 2015

Bathroom policies that make sense

It is always nice to Friday blog a positive story.

Pierce College, a community college in the state of Washington, issued a memo to the college community this week about the use of bathrooms by transgender individuals. My cursory Google news search did not reveal any particular incident, though what I suspect has happened is that trans* and gender queer people's use of bathrooms on campus is upsetting some individuals who have turned to the administration for redress.

This was the response from the college's Title IX coordinator (also the VP for human resources):
Recently we have received questions from members of the college community at both Fort Steilacoom and Puyallup about transgender individuals and restroom use. The short answer is that every member of the Pierce College community is free to use whichever restroom aligns with their gender identity. Pierce College is also in the process of identifying gender neutral restrooms on both campuses, which will be available for anyone to use, regardless of gender identity or expression.
It is not up to other people to determine whether or not a given person is in the “right” restroom. If an individual chooses to enter that restroom, it is the right restroom for them. (In the rare event that they entered the restroom by mistake, they will certainly exit upon realizing the mistake without any outside help.)

She does go into the long answer which involves state and federal laws and includes some links for additional information, including one about the application of Title IX protections to transgender students. 
The response reminded me a little of this photo from the Transcending Gender Project that I have seen around social media in the past few weeks. 

Of course as we have seen in the several cases of high school athletic associations attempting to pass policies governing the participation of trans* athletes, bathrooms and locker rooms cause some people to grow quite agitated. There is a presumption, which I mentioned the other day, that trans* people are predatory and will engage in sexual acts with unwilling cisgender people in bathroom spaces. Thus, people who report a trans* or gender queer person using the "wrong" bathroom may feel they are being preemptive when they call security. The letter to the Pierce College community addressed this as well:
If any person is behaving dangerously or actively harassing others in a restroom or any other Pierce College space, please contact Campus Safety. The mere presence of someone using the restroom does not qualify as a dangerous or harassing activity and should not be cause for alarm or complaint.

The End.

Thursday, March 12, 2015

Ohio State Hockey Coach Resigns Over Harassment Complaints

Ohio State's women's hockey coach has resigned in lieu of being fired for misconduct that included sexual harassment of his players.  The university reportedly commenced investigating Nate Handrahan last November after receiving an anonymous complaint from a teacher or instructor that one of his players had shared in class the fact that he made sexually explicit comments to the team.  In the course of investigating the complaint, the university received verifying testimony of other witnesses, who attested not only to his use of sexual language and innuendo (such as for example telling them in practice to "get horny for the puck") but also his verbally abusive and intimidating style.  (The university's report also concluded that he had engaged in retaliation against his players as well, though the news account I read did not go into details on this.)

Earlier this year, Kris blogged about the dismissal of UNH's women's hockey coach over an incident in which he assaulted a player by pulling her to the bench by her shirt, causing her to fall.  And I can't help but ask about this case the same question Kris asked then: would this have happened in men's sports?  Notwithstanding prominent counterexamples, such as the dismissal of Rutgers men's basketball coach for abusive conduct towards his players, there is still a lot of tolerance for, and even expectation of, an aggressive style among coaches of men's teams.  At the same time, cultural stereotypes about female athletes suggest that aggression is not appropriate for them. That puts coaches of women's teams -- men and women alike -- in something of a double bind as they receive mixed messages from society (and possibly from the culture of their athletic department): be aggressive, to prove yourself as a coach.  But don't be aggressive towards female players, because women are different.  The fact of this double-bind is not only dangerous for coaches, but for players as well.  Not only because coaches may wrongly infer that abusive conduct is appropriate, but also because when the coach is dismissed for such misconduct, that in itself further diminishes the athletes' experience by depriving them of continuity in coaching.

By no means do I point out this double standard to condone the actions of Coach Handrahan here.  Nor do I suggest that Ohio State in particular is practicing a double standard.  (In fact, Ohio State's similar response to the band director situation last fall suggests that Ohio State is consistent when it comes to addressing sexual harassment in its programs.)  But in a larger sense, this case helps illustrate the importance of being consistent across men's and women's programs when it comes to tolerating harassment, abuse, and bullying by coaches. Aggression that crosses the line into that territory should never be mistaken for a coach's job requirement, regardless of the sex of the athletes he or she is coaching.

Wednesday, March 11, 2015

OTL covers young transgender athletes

Shows like Outside the Lines give me a little more faith in ESPN. This week's episode (a piece of which can be found here) profiled two transgender athletes and discussed more broadly the issue of trans athletes in youth and high school sports.

The episode focused on two transgender students. The first, Leo, is a trans boy in Maine who recently came out and received permission to swim on the boys' team at his high school. Maine is one of the 33 states that has a policy addressing the participation of transgender athletes in high school sports. They passed their policy in 2013 and Leo took his situation to the high school athletic association which approved his participation on the boys' team last fall. Leo's experience, based on his own telling and interviews with his teammates and coach, was positive. What was striking about his interview was the reminder to all of us that this issue is about more than just the right to participate (not to diminish the very important civil rights component here). It is about what sports can provide participants:
"I think I can go through a lot more more confidently than if I hadn't [had this experience]."

Also important to note is that Leo's teammates and coach are very supportive of his participation. The three teammates OTL interviewed called him brave.

The other story, of Shay, is a sharp contrast to Leo's because she lives in Montana which has been unable to successfully pass a policy regarding transgender participation. I wrote about the policy proposal in January. That policy was withdrawn, according to OTL, because the Montana High School Association did not feel it had enough votes (it needed a 2/3 majority among its 120 members) to pass. This has left Shay, who competed in both track and basketball as a middle schooler, unable to play high school sports. Shay's story is particularly sad because she has struggled throughout her transition and sports offered her an outlet.

OTL interviewed members of conservative Christian organizations that opposed the policy. (Not all of these interviews made it to the above clip.) So-called privacy concerns arose again in this conversation. This argument continues to privilege the the privacy of cisgender children over that of transgender children. This was especially interesting in Shay's case because she was not out when competing in middle school and would change in bathroom stalls to protect her identity--and I would argue, her personal safety.

This leads to another issue that opponents have: safety in locker rooms. This is an argument similar to one that has been made against gays and lesbians, which assumes an innate predatory instinct (recall the campaign against gay Boy Scouts). Safety in a locker room is the result of the culture of that locker room, regardless of one's sexuality, gender identity, hormones, chromosomes, or genitals. The safety of gay and transgender people is far less secure than their heterosexual and cisgender peers.

Another conservative safety argument is that mixed gender locker rooms--their term, which  negates the gender identity of the transgender children--will result in undesirable shenanigans of a sexual nature. Let's not forget the many, many, many incidents of hazing and bullying in locker rooms that are perpetuated among cisgender people of the same sex and involve acts of genital touching and penetration. 

These are all straw man arguments, which one can easily see through when the opponents refer to transgender children using their biological identity and encourage them to be comfortable being themselves and not hiding who they are; what they mean is not hiding their biological sex. The implication is that these children are being both deceptive and unnatural--that is the foundation of their opposition, not safety concerns.

The rationale behind why youth and interscholastic sports should exist in our culture includes the belief that they are character-building, and teach leadership, cooperation, and sportspersonship. And though we can poke many holes in this Great Sports Myth, there are still many children who benefit a great deal from sports participation at a young age. To deny these experiences to any child is an injustice and to deny them by blaming and labeling and stereotyping them is unconscionable.

Monday, March 09, 2015

"Co-Champions" in Connecticut Raising Title IX Concerns

Champion.  Noun. "A person who has defeated all opponents in a competition or series of competitions, so as to hold first place."   Well -- usually.  In Connecticut yesterday, two girls' ice hockey teams squared off to determine the state champion.  After three periods of regulation play, the score between the team from Simsbury and the team from East Catholic/Glastonbury/South Windsor was tied 2-2.  So they played a period of "sudden death" overtime, in which, if either team had scored, the game would have ended.  But no one scored.  So they played another overtime period.  Still, no one scored.  Then, as the teams geared up for a third overtime period, officials told the teams to line up on blue lines so they could be awarded co-champions. 

As ESPN-W reports, the decision not to let the game continue until there was a winner caused confusion, surprise and disappointment.  It not only departed from the expectations that athletes generally have about the ending of a championship game -- but apparently, from the rules for determining this particular championship that had been circulated to the teams ahead of time: "eight minute sudden death overtimes until the game is decided."  In addition to disappointing the players involved, the situation has also raised Title IX concerns. For one thing, there is reportedly good reason to believe that the girls' state championship game ended without a winner so that the later-scheduled boys' game, a conference championship, could begin on time. And many believe that if the situation were reversed, a boys' state championships would never have been allowed to end without a winner. 

Title IX requires that schools provide boys and girls with athletic opportunities of similar quality.  One factor of quality, as specified in the regulations, is the  scheduling of competitions.  For example, courts have determined that the practice of depriving girls of the opportunity to play games during the "prime time" (usually, weekend and evening times) violates Title IX because it demotes girls' sports to a second-class status.  The regulations also specify that girls and boys should have access to athletic facilities of equal quality.  For example, some states hold high school championships at a large premier arena, such as a state university.  If only boys' teams have access to this high level of quality (see, e.g.), that would violate Title IX.  

What happened in Connecticut yesterday could arguably violate Title IX, either as an example of unequal scheduling or as an example of unequal access to facilities.  If Connecticut schools schedule the boys state championship at a time of day, e.g., evening, when the game can be played to its conclusion, but the girls, scheduled during the day, have to stop early to accommodate the next game, then there is inequity in the scheduling of competitions.  Similarly, if the boys' state championship is held at a rink that does allow adequate time for the game, but the girls' state championship is hosted at rink that is not able to provide adequate time, the latter rink is a facility of inferior quality.  

Yesterday's championship could have either been held at a different location---one that could accommodate a complete game---or it could have been allocated a different time period--i.e., a sufficiently long enough one to allow the game to conclude.  If it is not possible to make those kinds of accommodations to both boys' and girls' championship games in the same year, schools could agree to provide the better facility/schedule to the girls' championship one year and to the boys' the next. Alternatively, the schools could have imposed a rule that shortens the time it takes to play a championship game --boys' and girls' -- such as by ending it by penalty shots after a certain number of evenly-matched overtimes, so that they both fit in the time and place allotted to them.  Title IX does not mandate how schools provide equal treatment to girls' and boys' athletic programs, only that they do.

Hopefully the schools in Connecticut that participate in girls' hockey learn from yesterday's mistake and ensure that future girls' championships receive the equal respect they deserve and the equal treatment the law requires. 

Sunday, March 08, 2015

Lots happening on women in coaching and leadership

I have been meaning to write this post for several weeks now and it seems appropriate to do so--finally--on International Women's Day.

There has been a fairly significant (relatively speaking) media attention given to the issue of women coaching women's sports in the past few weeks. Both Erin and I have been speaking to the press and on radio (here, here, and here) answering questions about why there is a lack of female coaches, the specific situations at Iowa and Minnesota Duluth, and if Title IX can address this issue.

The statistics have been stated: the percentage of women coaching women's teams at the intercollegiate level has dropped from approximately 90% when Title IX was passed to its present percentage of approximately 40%; there has been no comparable (or rather none at all) rise in women coaching men's sports. While we appreciate the coverage this issue has received, these are not new numbers. This is not a new problem.

The answer to the why now question is most likely due to these high-profile cases coming in quick succession. It is important to note though that these are high profile cases because the coaches involved have challenged their firings. We have seen coaches file complaints and lawsuits in the past (Fresno State, FGCU are just two examples) after being fired. The frame in these cases though has been one of retaliation. Most of those coaches felt they were being retaliated against for complaining about and challenging the treatment of their women's programs. Title IX's protection against retaliation is clear and several of these cases resulted in large jury awards. They still, however, lost their jobs and many have not gotten back into coaching, in part because the situation for female coaches is so dismal.

This has been the focus of the current debate: the culture in which female coaches work. This is an important conversation (also not new but seemingly now more public). It has also inspired a closer look at programs. The Tucker Center released its women coaches report card recently. Miller and her advocates have spoken about the lack of athletic department support for women's ice hockey. At Iowa, former field hockey coach Beth Beglin compiled a very thorough and quite disheartening report about the state of the athletic department since the women's and men's departments merged in 2000--and more specifically what has happened since current AD Gary Barta took over in 2006. Beglin notes that in this time 83% of female head coaches have been fired. In the same time only 11% of male head coaches have been let go.

Last week the Institute for Diversity and Ethics in Sports released its annual report card about the state of gender and racial equality in intercollegiate sports. From the report summary: College sport received a C+ for racial hiring practices by earning 78.5 points, down from 82.3 points in the 2013 report card. College sport received a C- for gender hiring practices by earning 69.4 points down from 75.9 points.

Lost in the recent conversations have been discussions of race. All of the women we have been talking about are white women. The picture of the female head coach is most often of a white woman. This weekend, discussing stereotypical images of female leaders in sports with friends, I rather uncritically presented a white woman as the norm. And though the statistics certainly bear out this picture, the absence is in dire need of being addressed whenever we are discussing women in leadership positions. The norm has to be challenged.