Thursday, February 25, 2016

Disciplined Student May Continue to Litigate Title IX Claim Against Brown

A federal district court in Rhode Island denied Brown University's motion to dismiss a Title IX "erroneous outcome" claim filed by a male student who was found responsible for sexual assault of a female classmate and suspended for two and a half years.   (The court also permitted the student to continue to litigate some of his breach of contact claim, but did dismiss his Title IX "deliberate indifference" claim.)

The court concluded that the plaintiff sufficiently alleged facts that could, if proven, satisfy both requirements of an erroneous outcome claim: (1) "facts sufficient to cast some doubt on the accuracy of the result of the disciplinary proceeding"; and (2) "particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding."

As to the first element, the plaintiff alleged that the process by which he we found responsible and sanctioned was plagued by procedural errors, including giving inadequate weight to aspects of the victim's statement that could be interpreted as consent.  At the motion to dismiss stage, the plaintiff need only allege a basis for doubt, not prove that the result of the proceeding was inaccurate, and the court had little trouble concluding the plaintiff's allegation was sufficient.

The second element was more challenging for this court, though it ultimately decided it in the plaintiff's favor as well.  The plaintiff's allegation of gender bias is essentially an argument that Brown has a pattern of finding men responsible for sexual assault when they are so accused.  He states this is connected to gender bias, but he does not allege a specific comparison to female students accused of sexual assault not found guilty. That makes his case more challenging to evaluate than a if it had contained a "comparison" allegation, which usually satisfy the pleading standard in sex discrimination cases that, like this one, are not based on direct evidence of discrimination (something like an express policy of treating women differently from men).  But on the other hand, as the court acknowledged, a comparison allegation is difficult and maybe impossible for male plaintiffs to make in cases like these, since it is rare that women are accused of sexual assault, and perhaps Brown has not had the opportunity to decide such a case in order to make such a comparison possible.  

In Yusef v. Vassar College, a leading case on erroneous outcome claims, the Court of Appeals for the Second Circuit determined that a similar allegation that "men are invariable found guilty"  (without a female comparison) was sufficient to survive a motion to dismiss.  But since that decision, the Supreme Court has required discrimination plaintiffs to allege with a greater level of detail.  As a result, some lower courts have since determined that the allegation deemed sufficient in Yusef's case is no longer sufficient under the Supreme Court's new pleading standard.  These courts have reasoned that this is a conclusory (and thus, insufficient) allegation of gender bias because it only suggestive of a pattern that accused students are found guilty. That accused students tend to be male is not something that the university controls; students of either gender are permitted to file a complaint, and it is possible that if female students were similarly accused, the university's alleged bias against the accused students would affect them as well.

In the Brown case, the court took a different view, reasoning that requiring anything more specific of the plaintiff at this point in the litigation would be tantamount to prematurely imposing the burden of summary judgment standard.  If the argument is that the plaintiff's allegation of gender bias lacks evidentiary support, the court says, that will get sorted out after the plaintiff has had the opportunity to take discovery. It may turn out that, as plaintiff has speculated "on information and belief" that there is bias against men, not just "bias" (alleged) against the accused.

My own view of this aspect of this opinion is a bit conflicted.  On the one hand, I don't agree with the Supreme Court's heightened pleading standard for discrimination plaintiffs.  At the same time, I don't see the Brown court's decision as a faithful application of that standard, since it really permits any accused student to turn his procedural challenge into a Title IX claim but simply invoking "information and belief" that the bias against the accused is motivated by gender. Moreover, while I would prefer that Title IX did permit plaintiffs to litigate disparate impact claims (claims based on a pattern without evidence of intent), the prevailing view after Sandoval, a Title VI, case, is that such claims are claims are foreclosed under Title IX as well. That said, I can't help but notice that the court's analysis seems to permit the packaging of what is essentially a disparate impact claim masquerading as an intentional discrimination claim.  It will be interesting to see what happens to this case as litigation continues, and/or if this decision is appealed to the First Circuit.

Decision: Doe v. Brown University, 2016 WL 715794 (D.R.I. Feb. 22, 2016).

Friday, February 19, 2016

Kent State faces lawsuit over assault cover-up and retaliation

We have seen emerge a pattern of sexual assault cover-ups by intercollegiate football teams recently. Kent State has interrupted that pattern--not in a good way.

The university is facing  lawsuit by a former softball player who alleges that her own coach, Karen Linder, tried to cover up the assault the player reported to her. Why? Because the assailant is the coach's son, also a student-athlete. When the player did indeed report the rape, the (now former) coach retaliated in ways that forced the player to quit the team.

Though this in itself is awful, what exacerbates these feelings--along with my cynicism--is that the coach sought out her player who had not initially reported the assault but who was clearly affected by the incident. Changes in the player's behavior, socially and academically, compelled the coach to ask if she had been sexually assaulted and also ask, according to the lawsuit, if her son was the perpetrator. When she found out that he was, she was apologetic but also asked that the player not share this information with anyone else (her family already knew) and wanted her to talk to her son to try to resolve the issue.

The player tried to move on but had difficulties sharing facilities with the baseball team (of which the son was a member) and going to the coach's (and her son's) home for team events. The player also came to find out that Linder should have reported the assault to the university once she knew about it. The player initiated a complaint with the athletic director that her coach had not done this; the athletic director went directly to Linder who resigned almost immediately but did so railing against the student athlete the whole time and rallying support for herself while decrying the actions of the player and the university. This effectively created a culture on the softball team, maintained and perpetuated by the replacement coach, that was hostile to the student athlete's continued participation.

The lawsuit is against both Karen Linder and the university. The latter is not commenting at this time.

Thursday, February 18, 2016

Patterns emerge: Baylor

As I wrote last week, the University of Tennessee and Baylor University find themselves in similar situations: student athletes accused of sexual assault and subsequent indifference to these reports by administrators. More has come out about Tennessee, specifically Peyton Manning's involvement when he was a student athlete. I am moving on to discuss the cases at Baylor though for now and may return to Manning later. 

As I noted in my original post, the two situations share characteristics but are different in key ways. First, the judicial system has already handled the cases of two of the accused. Two former Baylor student-athletes were convicted of sexual assault, but the school did nothing about either of them. They did not investigate when victims came forward. What we more often hear is that schools think that because law enforcement and the legal system did not accrue enough evidence or did not find the accused culpable, schools are off the hook. Though not true, it is not difficult to see how this thinking manifests. But here there were two guilty verdicts. Tevin Elliot, a former football player serving twenty years, is one of those players. He was tried for one incident but is accused of a handful of others. ESPN's Outside the Lines ran a story on it which featured several of the women accusing Elliot of rape.

The story reveals the culture at Baylor that allowed athletes to continue to assault women. Women reported the assaults to local police and to Baylor. One woman, a student athlete as well, reported Elliot's assault to the Chief Judicial Officer at Baylor, Bethany McCraw. The student athlete named Tevin Elliot specifically and McCraw responded that this was the sixth accusation against Elliot. She told the victim that there was nothing Baylor could do until a court acted on it. We all know by now that this is wrong. Did the CJO know her institution was required to investigate?

So scenario one: McCraw did not know Baylor was legally obligated to investigate all reports of sexual assault. This requires us to ask: why not? How do you not know the laws that directly affect your job which is maintaining the welfare of the students at your school? At best, Baylor has ineffective people in very important positions. Even if McCraw did not know the law, she knew this was not the first time. She knew that the football program and the athletics department were aware of Elliot's behavior. As an administrator in the Dean of Students office, one might think she would be interested in the welfare of Baylor students who have been victims of sexual assault. What she offered this sixth victim was help with finals. This leads me to think that scenario two was more likely. McCraw was protecting and/or being pressured to protect the program by protecting Elliot. She discouraged the victim from seeking redress in the form of a restraining order or filing criminal charges. She did not initiate an investigation.

So how administrations deal with reports contributes to the sexually hostile environment at Baylor and the culture of privilege within the athletics department: everyone knows and no one is doing anything. This is a legal failure most certainly and Baylor has, in the wake of the publication of these accusations, been releasing all sorts of statements about how they are examining and changing the policies and procedures. But this was a moral failure as well. While this is often true in other cases we hear and write about, it seems so much more salient at Baylor. I absolutely do not think a Christian university is or should be more morally upstanding than secular institution. But Baylor flies its Christian flag very prominently. They use the religious affiliation of the school to justify discrimination. It is unfortunate, but it is not difficult to see how Baylor's intolerance of certain lifestyles and behaviors (including premarital sex!) has resulted in this culture of misogyny.

Sadly, that culture extended to all corners of the institution, including counseling services. Victim number seven, the one whose criminal charges against Elliot were what got him convicted, sought out mental health services after she reported the crime to the Waco police. They told her they could not help her and warned her about hurting the reputation of the programs by accusing one of its premier players of rape.

The second conviction against another Baylor football player came after Elliot was released from the team and expelled because of the criminal charges against him--still without an investigation by the school into the accusations. In this case the district attorney found a culture of ignorance about sexual assault at Baylor. She reported an inability by administrators to see non-stranger rape as rape. Maybe this is true, though the cover-ups and the narratives suggest something more insidious than ignorance or even indifference.

Baylor has hired a law firm to look at old cases. But there is no promise that those findings will be made public. They hired, as of 2014, have a Title IX coordinator. Right now, all of those actions look like CYAs. I find it almost impossible to believe that in 2011, when these accusations began, that administrators were unaware of the issue of campus sexual assault. This was the year of the Yale complaint and the fallout from the Penn State scandal. There had already been verdicts (sometimes with large jury awards to victims) against K-12 schools who had neglected to address sexual assault against its students. There was a Dear Colleague letter that year as well. Everyone, including Baylor, was on notice.

Final note: there is no OCR investigation into Baylor at this time.

Friday, February 12, 2016

Sexual Harassment Roundup: K-12 Cases

Here are summaries of some recent judicial decisions involving Title IX claims against school districts for failing to adequately respond to reports of sexual harassment and abuse.

A federal court in Connecticut refused to grant summary judgment to a school district in a case stemming from a ninth-grader's repeated sexual abuse of the sixth-grade plaintiff.  The abuse itself occurred outside of school, but the plaintiff alleges that the school district was deliberately indifferent to the fact that the abuse and her reporting of it subjected her to continued harm while at school. For one matter, the school did not take steps to expel the 9th grader, which created the opportunity for the plaintiff to encounter him in space that the middle school and high school shared. Additionally, the school did not respond to repeated requests from the plaintiff's parents to intervene in harassment that the plaintiff was enduring at the hands of some sixth-grade peers, including the perpetrator's sister. The court agreed that based on these claims it is possible for a jury to conclude that the school district was deliberately indifferent and liable under Title IX. Its ruling allows the case to continue on to trial.  Doe v. New Fairfield Bd. of Educ. 2016 WL 310720 (D. Conn. Jan. 26, 2016)

A school district in Indiana must continue to litigate a former student's claims that school officials' tolerance of hazing on the boys' swimming team violated Title IX as well as his constitutional rights. In denying the school district's motion for summary judgment, the court determined that a jury could find based on the evidence in play that the school tolerated conduct among boys that it would not have tolerated among girls, a finding that would subject the school to liability under Title IX. Because the plaintiff alleged that the school officials' indifference to hazing was "because of sex" it was not fatal to his claim that his additional allegations that the hazing itself was "because of sex" was not supported by evidence. J.H. v. School Town of Munster, 2016 WL 427351 (N.D. Ind. Feb. 03, 2016).

An Oklahoma school district prevailed on summary judgment in a case filed by a female student who was targeted for an inappropriate relationship by her history teacher.  The student argued that the school should have been on notice of the teacher's conduct as a result of an incident in which a custodian discovered the teacher and student together in a locked classroom with the lights off.  While in fact that teacher had been kissing and touching the student behind the locked door, the teacher provided a plausible explanation for this situation when he was asked about it by school officials (the locked door he said was the result of on active shooter drill, the lights off because he was using a projector). In light of the teacher's response, the court determined that the custodian's discovery of the locked/dark classroom did not provide the school district of actual notice of the teacher's inappropriate conduct and that it was reasonable to take no further action against the teacher other than warn him not to be alone with students in the classroom. Later, when school officials received additional evidence of the teacher's conduct, they acted immediately to suspend the teacher and begin a disciplinary process that ultimately led to his resignation, thus fulfilling their obligation under Title IX to respond reasonably to actual notice of a threat of sexual harassment,.   Roof v. New Castle Public School District No. 1, 2016 WL 502076 (Feb. 8, 2016).

A federal magistrate in Texas granted summary judgment to a school district after determining that the plaintiff did not have sufficient evidence that school district's response to peer harassment was tantamount to deliberate indifference.  The plaintiff, an 11-year-old boy, was harassed by fellow students because he had "breasts like a girl" and other physical characteristics that allegedly made him appear less masculine and gay to his classmates.  In light of uncontested evidence that the school district took some disciplinary action in response to reports of bullying, the magistrate determined that school officials could not have been indifferent, even though the response was (at least arguably) too weak to curtail the bullying in question. Nor did it matter that the school district (again, arguably) failed to comply fully with its own anti-bullying policy. Concluding that the school district "should have done more" does not determine whether the school was deliberately indifferent. Drawing this distinction, the magistrate determined that the school district could not be liable under Title IX.  K.S. v. Northwest Indep. Sch. Dist., 2015 WL 9450853 (E.D. Tex. Dec. 1, 2015).

Thursday, February 11, 2016

Patterns emerge: Tennessee

I wonder if Florida State officials are sending thank you notes to their counterparts at Baylor and Tennessee for helping take the heat off their recent settlement announcement in which they did not admit culpability for improper handling of a sexual assault accusation against former football player Jameis Winston as they paid out nearly $1 million to settle the lawsuit brought by Winston's victim.

Because what is happening at those two schools is--and will be--taking up a lot of media space. Both Baylor and Tennesse are having problems dealing with their student-athletes and with accusations of sexual assault against their athletes. This post is just about Tennessee. I will post again shortly about Baylor. Though similar, they each have their own unique aspects that warrant separate consideration.

Word came out yesterday about a lawsuit filed by 6 women at Tennessee alleging improper handling of their sexual assault reports. Five of those allegations are against student athletes (football and basketball). The non-student athlete assault happened at a football team party. The lawsuit details parties such as that one and the culture of illegal behavior that is, at best, tacitly supported by the school. It cites high-ranking university officials (including the chancellor) as responsible and aware of the assaults. The lawsuit also mentions additional sexual assaults of other women not associated with the lawsuit.

In additional to the allegations of deliberate indifference, the lawsuit also states that the hearing process for sexual assaults is biased against victims. One accusation is that the accused can have lawyers. On its face, this does not seem like a problem--other universities allow this--unless victims are not allowed lawyers either expressly or through omission (i.e., they are not made aware of this option). The more particular issue is that one lawyer in town is being hired to represent all these athletes at their hearings. Not automatically a problem or violation, but there are potential issues with this. Community support in the form of the judicial and law enforcement sectors being "kind" to student athletes is not new. We saw it at Florida State and it was rampant at Washington in the Neuheisal era where law enforcement and the judicial system almost colluded in protecting football players charged with crimes (not all sexual assault). So one might ask: Who is paying this lawyer? Is he doing it for free? What is his connection to the program? To the university? These are issues that someone should investigate.

Apparently an administrative law judge adjudicates these hearings. The lawsuit contends bias here because that judge is appointed by the chancellor and, again, the accusation is that the chancellor is part of the problem and arguably has a vested interest in protecting student-athletes and/or the reputation of his university. These will be interesting aspects with which the court will have to contend. How much leeway does a school have in establishing policies and procedures? How guide-y are the federal guidelines? Is Tennessee following the letter of the law, but not the intent in the way it addresses accusations of sexual assault?

What will be less contentious, assuming the allegations are proven to be true, is the deliberate indifference and the sheltering of student athletes. Many athletes are publicly reprimanded for "bad behavior" by being suspended or even kicked off a team. What happens afterward is not as public. Often athletes stick around campus--still students in good standing--and then transfer to other schools or even graduate. According to the lawsuit, Tennessee violated Title IX by:
"delay[ing] the investigation process until the athlete perpetrators transferred to another school or graduated without  sanction or discipline." One named assailant, former football player A.J. Johnson was suspended during his last season with the team but was allowed to take part in graduation.

The transferring to other schools is not new. The delay of investigation while everyone looks the other way is not new. We have written about it. There have been other lawsuits and complaints that report this. The SEC, of which Tennessee is a member!--now has a rule that its member schools cannot accept transfer student athletes with records of sexual and domestic assault.

What we do not know, but what many of us suspect, is that this "procedure" for dealing with offending athletes is more widespread than the few incidents indicate. The Tennessee lawsuit may not reveal a national pattern, but it certainly adds to the mounting evidence that what happened there is business as usual in big-time college sports. 

Also, these allegations of bias and of collusion in hiding and protecting offending athletes at Tennessee is not new. There have been complaints and investigations against other officials as well as the football coach who has a great deal of control over the disciplinary  proceedings against athletes. These alleggeations have been around for years. 

A side bar, of sorts, to this story is one about a Tennessee football player who was physically attacked--allegedly more than once--for helping one of the victims (taking her to the hospital and encouraging her to report her attack). I have seen some social media that critiques news outlets for running this story saying that the real story is the lawsuit and all that is contained within it (the events, the response, etc.) and that running the story about the football player takes attention away from what these 6 women endured.  

If that is the only story that a media outlet ran about what is happening at Tennessee, I would agree with the critiques. But this story is telling in itself. It speaks to the culture of secrecy and protection within athletic departments. A culture specifically cited in the lawsuit. A culture that both lead to the assaults and certainly affected how they were handled by university officials. It is a message to those within the program, arguably within the Tennessee athletics community as a whole, that if you do not conform to the cultural norms--the ones, in this case, that privilege athletes to such a degree that they are allowed to engage openly in illegal and violent behavior--that you will be punished. This is code red, A Few Good Men, culture. Officials knew what was happening, the victim told them this player was being assaulted, and they did nothing.

This is something new. I have not seen reported anything about repercussions to those--who are not victims (because they are frequently shunned, bullied, further assaulted and harassed)--within the culture who in some way support a victim. Maybe because it does not happen. Those who disagree with what was done or what is happening will just remain silent rather than threaten their position within a culture that provides them protection and privilege. This may not be the main story, but it is a compelling one and deserves attention as well.

Obama Requests 29% Increase in Funding for OCR

On Tuesday the Obama administration proposed a federal budget to Congress that would increase funding to the Department of Education's Office for Civil Rights to $138 million, a 29% increase over its current level of support.  As mentioned in this Huffington Post article about the proposed budget, OCR is presently investigating alleged Title IX violations at 162 colleges and universities, as well as 73 school districts. The backlog causes most investigations to take at least a year, with some taking far longer.  The requested budget increase aims to address the problem by earmarking the additional funds for adding more personnel at the agency's regional offices, which handle enforcement. 

As the Huffington Post article points out, request and reality often differ where federal budgets are concerned.  Last year the President proposed increasing OCR's budget from $100 million to $130 million, but Congress only agreed to $107 million. If recent trends predict the future, it seems likely that that President would get some but not all of the requested increase.  Hopefully Congress will add enough new funding to make a meaningful difference the agency's ability to conduct investigations in a reasonable amount of time, and ensure that the agency can vigorously enforce Title IX without losing focus on its other civil rights responsibilities, including the enforcement of statutes that prohibit discrimination based on race and disability.