Wednesday, December 16, 2015

Dear Colleague Letter Addresses Single-Sex "Voluntary Youth Service Organizations"

Yesterday the Department of Education's Office for Civil Rights released a Dear Colleague Letter aimed at clarifying the relationship that Title IX-covered educational institutions may have with outside organizations that discriminate in their membership on the basis of sex.  Title IX regulations prohibit schools from offering "substantial assistance" to most organizations that engage in the kinds of discrimination that schools themselves would be prohibited from engaging in under Title IX.  Substantial assistance means things like allowing the organization to use school facilities that are not otherwise open to the public, or providing financial support, staff, or other assistance.

However, as the letter explains, Title IX expressly exempts "voluntary youth service organizations" that have "traditionally limited membership to "persons of one sex and persons of less than nineteen years of age." 20 U.S.C. 1681(a)(6). The statute names the YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls as examples of these exempt organizations. I think additional examples that could fit this criteria include Girls Inc., Boys and Girls Clubs, as well as other organizations that are targeting opportunities to boys or girls of a particular race and ethnicity, such as 100 Black Men of America.

This means that schools may offer "substantial assistance" to these organizations without jeopardizing Title IX compliance and, as a result, federal funding.  However, the letter clarifies, in addition to meeting the statutory criteria of being aimed at youth and having a tradition of single sex membership, the organization must provide students with actual opportunities to do public service. Moreover, the letter clarifies that the only discrimination tolerated by such organizations is discrimination in membership. A school cannot provide assistance to organizations that commit other violations of Title IX, such as sexual or gender-based harassment. Moreover, a school must ensure comparable opportunities for boys and girls.

Tuesday, December 15, 2015

Title IX Covers Sexual Orientation Discrimination, Court in Pepperdine Case Rules

Two female athletes are suing Pepperdine University over discrimination they experienced as athletes on the basketball team. They allege that the head coach and other athletic department employees singled them out for unfair treatment because they suspected that the plaintiffs were lesbians and in a relationship with each other, and when they complained about mistreatment, they were forced off the team and lost their scholarships. The athletes sued the university under Title IX and other state laws. And while their case was initially dismissed, the athletes received permission to amend their complaint, and when they did, Pepperdine again moved to dismiss. This time, however, the court denied the university's motion, which means that the plaintiffs can continue to litigate the case and begin preparing for trial.

The court's decision is significant for how it treated Pepperdine's argument that the plaintiffs cannot sustain a claim under Title IX because the statute does not cover discrimination on the basis of sexual orientation. Specifically, the court refused to consider sexual orientation discrimination a separate category of discrimination, but rather, viewed it as a subset of sex discrimination. The court reached this conclusion in two separate ways --  first, by viewing sexual orientation discrimination as a type of gender stereotype discrimination, and second by considering it a matter of  "straightforward" sex discrimination.     

The gender stereotype theory of sex discrimination comes from a 1989 Supreme Court decision, Price Waterhouse v. Hopkins, which applied Title VII's ban on a sex discrimination to a case involving an employer's discrimination against female employee for not behaving sufficiently feminine in the office. Since then, courts have accepted that sex discrimination statutes like Title VII and Title IX protect gays and lesbians (and others) from discrimination when the discrimination against them is not directed at their sexual orientation per se, but at how they dress or publicly express themselves (a woman who dresses too masculine, for example). But courts have rarely extended this idea to its logical end and concluded that that all sexual orientation discrimination is sex discrimination because heterosexuality is a gender stereotype. Notably, however, the decision in this case does exactly that. The court determined that the plaintiffs stated a cause of action under Title IX because they alleged that the coaches and others targeted them for mistreatment because of their perception that the plaintiffs' dating and relationship choices did not conform to feminine stereotypes. ("If the women’s basketball staff in this case had a negative view of lesbians based on lesbians’ perceived failure to conform to the staff’s views of acceptable female behavior, actions taken on the basis of these negative biases would constitute gender stereotype discrimination."). This part of the decision is groundbreaking in its recognition that same-sex sexual orientation is itself a form a gender nonconformity that is protected under Title IX, a conclusion that renders Title IX applicable to all claims of sexual orientation discrimination by gay and lesbian plaintiffs.  

The court also provided a second reason why the plaintiffs' case is actionable under Title IX, separate from the gender nonconformity theory. According to the court, "If Plaintiffs had been males dating females, instead of females dating females, they would not have been subjected to the alleged different treatment. Plaintiffs have stated a straightforward claim of sex discrimination."  This second rationale supports the same groundbreaking conclusion that all sexual orientation discrimination is a form of sex discrimination under Title IX.  

Last July, the Equal Employment Opportunity Commission, the agency that enforces Title VII, made a similar ruling about the relationship between sexual orientation discrimination and sex discrimination. The court in this case cited that decision favorably. These two decisions together are perhaps a sign of early momentum towards an interpretation of sex discrimination laws that would make the need for separate laws prohibiting discrimination based on sexual orientation unnecessary.

Decision: Videckis v. Pepperdine Univ., 2015 WL 8769974 (C.D. Cal. Dec. 14, 2015). 

Monday, December 14, 2015

Court Refuses to Dismiss One Sexual Assault Victim's Title IX Claim Against Berkeley, Tentatively Dismisses Two Others

The University of California Regents moved to dismiss claims filed by three students who alleged that UC Berkeley's delayed and insufficient response to their reports of sexual assault violated Title IX.  The court denied the motion with respect to one student's claims, allowing her case to proceed to the next stage of litigation. The motion was granted with respect to the other two students, but they were granted permission to amend their complaints to attempt to overcome the insufficient pleading that lead to the dismissal.

In all three matters, the court decided that the university could only be liable, if at all, for harm to the plaintiff that occurred after the reported incidents of sexual assault, not for the sexual assault itself. This is because institutional liability under Title IX requires that university officials have actual notice in advance of the risk of sexual violence, and in none of the three cases did the plaintiffs allege that the university knew beforehand that the assailant in question posed a threat. Yet, the university could still potentially be liable for harm suffered by the plaintiff caused by the university's failure to adequately respond to their reports of sexual assault. For this to occur, the plaintiff must first allege that they university's response amounted to deliberate indifference. Also, though the plaintiff need not allege that such indifference caused them to be re-victimized, they do need to allege that the university's response impaired their education opportunities in some way, such as by leaving them vulnerable to further harassment or assault.

The first of the three plaintiffs reported to university officials that she was sexually assaulted by a fellow student on a club trip. She alleges in her complaint that the university did not contact her about her complaint for over 8 months and did not discipline the student with anything other than probation despite having found him responsible. However, she did not allege that the university's failure to discipline the student rendered her vulnerability to further harassment. For this reason, the court dismissed her claim, but, as noted above, will allow her to amend the complaint. The court helpfully identified  allegations that would be sufficient, including claims that she was made uncomfortable by subsequent encounters with the assailant, or that she had to alter her behavior out of fear of running into him.

The court also determined that the second plaintiff's complaint failed, but for a different reason. This plaintiff claimed that the university was deliberately indifferent in its response to learning of her report that she was raped by another student but did not include details to establish the purportedly insufficient length of time taken by the university to respond to her complaint. She too may amend her complaint to include these details.

The third plaintiff alleged that she was sexually assaulted several times while working as an assistant to a graduate student conducting research in Alaska. The perpetrator was someone affiliated with the research center that hosts a university-affiliated academic program. Moreover, he is someone who regularly guest lectures on campus. The plaintiff alleged that she reported the incidents to the university officials who failed to undertake any kind of investigation or other response. As a result, she was forced to drop those classes in which she might encounter him as a guest lecturer. The court deemed these allegations sufficient to state claim of Title IX liability, so the university's motion to dismiss was denied. The case will now proceed to the discovery phase of litigation, in which the plaintiff will have the opportunity to gather evidence needed to prove the allegations contained in her complaint.

Karasek v. Regents of the University of California, 2015 WL 8527338 (N.D. Cal. Dec. 11, 2015).

Monday, December 07, 2015

Round-up: Aftermath of the Hunting Ground airing

Amid criticisms of the film and the television station, with threats of lawsuits, CNN aired The Hunting Ground the weekend before American Thanksgiving. Here is what happened afterwards:

A report came out from the American Association of University Women that 91% of colleges and universities reported no sexual assaults in 2014. I find that number both incredulous and sadly not at all surprising. Earlier this year another study's results were released showing that one out of four college women surveyed reported being assaulted. So even with problematic studies, even with underreporting, there is no way that nine out of ten schools received no reports of sexual assault in 2014. There is missing data, as the Washington Post reports, because some schools missed the October 1 deadline to report their numbers about crimes on campus and there might be a delay in data entry at the Department of Education. Regardless, reports of zero sexual assaults should not fool anyone. It is more likely an indication that a school does not have the correct policies, procedures and training in place. As the article notes:
"a school that reports no or few sexual assaults isn’t necessarily a safe haven for students. In fact, a higher number of reported assaults can mean the assault investigation system is operating effectively."

 This seems to be playing out at Brown University, which recently revised its sexual assault policies. The number of reported assaults has increased. According to administrators, the new process--spurred by a complaint about the handling of a student's accusations and the punishment levied against the assailant and an OCR investigation--has made it easier for victims to report and move through the hearing process.

Down in Tallahassee, Florida Florida State administrators, lead by President John Thrasher, continue to defend themselves against allegations of mishandling sexual assault complaints and are working very hard to keep their secrets secret--with limited success. Days after Thrasher chastised The Hunting Ground, the university was forced to release transcripts (by a judge and requested by NYT) of depositions in Erica Kinsman's lawsuit. The former head of the victim advocacy program provided some numbers. The "good" news is that FSU did--unlike 90% of American colleges and universities--report sexual assault in 2014; nine incidents, according to Melissa Ashton who was in charge of the program at the time. But she also said that 113 incidents were reported to her office. Ashton was in her position for nine years and, according to her testimony, there were 40 football players reported for sexual assault or intimate partner violence. Only one of those 40 were found responsible she said noting that many women would not pursue cases against football players because they were afraid of the repercussions. Part of FSU's response was a basic shrugging of the shoulders, noting that there was nothing the university could do if the victim would not report outside of the victim advocacy program. There was nothing about trying to change the culture of fear and intimidation.  

The other deposition some were interested in was that of head football coach Jimbo Fisher. He reported that he was not aware of FSU's sexual assault policies and thought that Title IX was about equality in men's and women's sports. The line of questioning was trying to determine what Fisher, and his superiors, knew about the accusations against Winston, when, and what they did about them. Ashton noted that whether there was even a staff member at FSU who dealt with Title IX issues during that time is in doubt. This does not excuse FSU or Fisher and his superiors from reporting the allegations, in part because not having a Title IX coordinator is a Title IX violation.

This case is not scheduled for trial until September 2016. That provided Thrasher with an abundance of time to keep praising and defending FSU.

PS: I looked for news about Winston was planning in the wake of CNN's airing of the documentary. No word on the lawsuit he was threatening.

Saturday, December 05, 2015

Illinois School District Settles With OCR in Locker Room Case

The school district in Palatine, Illinois has agreed to a settlement with the Department of Education that will resolve the agency's findings made last month that the high school's exclusion of a transgender student from girls' locker room violates Title IX. Specifically, the school district has agreed to allow the student in question, who identifies as female, to change in the the girls' locker with the other girls, on the condition that she use private changing stations located within the locker room. The district must also install privacy curtains and provide additional accommodations for any student who desire enhanced privacy.

The Department of Education notes that this case is the first time it has found discrimination against a transgender student to violate Title IX. Notably, however, it is not requiring the school district to adopt a general policy of inclusion but merely to provide access to this particular student who had already agreed to (and in fact, requested) the opportunity to use a private changing station within the girls locker room. It appears to me that the agency was giving up the opportunity to compel a broader remedy for the sake of compromise; yet despite the settlement's narrow focus (and that fact that no settlement would have jeopardized the school district's federal funding) the school district's decision to endorse the agreement was reportedly not an easy one. The fact that a three-hour meeting was required to endorse the settlement unfortunately demonstrates considerable resistance to transgender inclusion. It was heartening, however, to read that many students supported the deal.

Duluth Coaches and Students File Title IX Complaint

A group of four former student athletes, one current student athlete, and three former coaches have filed a complaint with the Department of Education's Office for Civil Rights challenging widespread sex discrimination within the athletic department at the University of Minnesota-Duluth. The former coaches -- Shannon Miller, Jen Banford, and Annette Wiles -- are also plaintiffs in a lawsuit against the university challenging sex- and sexual orientation- discrimination that resulted in the termination or forced resignation of their jobs.  But the OCR complaint alleges even more widespread sex discrimination that affects students and coaches alike.

Allegations in the complaint include the following:
  • women's ice hockey team has a smaller operating budget (by over $270K) than its male counterpart
  • women's softball team was forced to have tryouts in order to pad the number of female athletes reported for gender equity purposes, then the department made the coach cut those extra players for budgetary reasons 
  • some female athletes were fraudulently reported as participants in multiple sports
  • men's basketball team is allowed to carry redshirt players, while the women's team is not
  • the department has terminated female coaches, depriving female athletes the opportunity to receive coaching of high quality
  • the department provides men's teams coach with resources like vehicles, a restaurant expense account, and support staff, that are not provided to the women's coaches on equal terms. 
  • the men's basketball team has a locker room five times larger and of superior quality than the locker room for women's team
  • the men's hockey team is provided with resources like snacks, meals, travel funds to tournaments that were not provided in equal measure to the women's team. 
  • the women's basketball team had fewer games and travel opportunities than the men's team; the women's team had to fundraise for travel and the men were not
  • men's teams had bigger budgets for recruiting, more equipment and uniforms, and medical equipment denied to women's teams
  • female athletes have fewer opportunities for scholarships, such as funding to enroll in special May term, J-term, and summer semesters that male athletes receive
  • the department does less promotion for female teams than its male counterparts, among other examples, it tweeted about men's hockey 309 times compared to 69 tweets about women's hockey
OCR will now consider whether to open an investigation (it likely will).  If the allegations are validated, it is very hard to imagine how they could not constitute violations of Title IX. While it is not necessarily a violation to have a disparity in treatment between men's and women's teams in the same sport, it is a violation when the athletic department's pattern is to select the women's team for inferior treatment all or most of the time.

Thursday, December 03, 2015

Article Identifies Religious Institutions Exempt from Title IX

Title IX permits religious institutions to claim an exemption for matters where Title IX's compliance conflicts with religious doctrine. In the wake of Department of Education's increasing tendency to apply Title IX to discrimination against LGBT individuals, religious institutions have increasing utilized the provision to opt out of the law's nondiscrimination mandate.  While a couple of examples had been made public, it's been difficult to find a complete list of which institutions are opting out of Title IX on religious grounds. 

Until now. Earlier this week, a news service called The Column published a complete list of religious institutions claiming exemption under Title IX, 27 of which have been approved by the Department o Education thus far. The article also exposes what appears to be a concerted effort by religious schools to utilize the exemption for the purpose of exclude LGBT students. For example, Baptist church leaders in Texas passed a resolution denouncing transgender individuals so that affiliated education institutions would have evidence of a doctrinal conflict to use in their Title IX exemption applications. The Christian Legal Society has provided training and model language for religious institutions to use in support of their applications.

Transgender individuals seem to be the primary target for exempt institutions, who cite in their applications (which are helpfully appended to the article) religious beliefs about the immutability of sex. They have been granted exemptions from regulations governing admissions (although, private undergraduate institutions already do not have to comply with Title IX's application to admissions) and regulations that could be interpreted to allow transgender individuals access to sex-segregated facilities and athletics programs in accordance with their gender identities. In addition to transgender students, another targeted group appears to be unmarried and pregnant students, as many religious institutions have received exemption from the requirement under Title IX to not discriminate on the basis of pregnancy, such as by expelling pregnant students or denying them certain accommodations. 

As the article notes, the exemption operates to allow $130 million annually in federal funding to support institutions that discriminate in ways that are otherwise prohibited under law, an idea that many find objectionable.  It is also troubling that information about the exemption is difficult to find. Students or employees who are subject to discrimination at these institutions may be surprised to find out that they are not legally protected, and might have made different choices about where to enroll or accept a job if they had known.  For this reason, I am going to type out the entire list of institutions who have received or are claiming such exemptions, to increase the likelihood that this information can be discovered by those searching for information about the school. The list is provided after the jump.