Saturday, August 27, 2016

Federal Court Enjoins North Carolina's HB 2 as applied to UNC

Yesterday a federal court in North Carolina issued an injunction that will prevent the state's "bathroom bill" from taking effect at the University of North Carolina.

By way of background, earlier this year, North Carolina legislature passed HB 2, which preempts local ordinances banning discrimination on the basis of sexual orientation and gender identity, and also restricts occupancy of multi-user bathrooms that are located in state agencies and public schools according to the user's "biological sex" as indicated by their birth certificate. Transgender plaintiffs challenged HB 2 as a violation of their constitutional rights, as well as a conflict with Title IX.  As part of the lawsuit, which names the University of North Carolina as one of the defendants, they successfully sought to immediately enjoin the bathroom restriction at UNC so that they can continue to use the bathroom that matches their gender identity while the lawsuit proceeds.

The standard for a preliminary injunction requires a plaintiff to demonstrate likely success on the merits as well as irreparable harm if the injunction is denied. Applying this standard, the court determined that the plaintiffs will likely succeed in their argument that UNC's enforcement of HB 2 violates Title IX.  The court applied G.G. v. Gloucester School District, the Fourth Circuit decision that confirmed a transgender boy's right under Title IX to use the boy's bathroom.  The federal courts in North Carolina are also in the Fourth Circuit, so the Gloucester case is binding precedent -- even though the remedy is temporarily on hold, for now, pending Supreme Court review.

In contrast, the court determined that plaintiffs' constitutional claims raised a novel application of the Equal Protection Clause, thus precluding the "clear showing" of likely success on the merits that is necessarily for a preliminary injunction. But the plaintiff's likely success under Title IX, combined with its conclusion that transgender students at UNC will suffer irreparable harm -- no place to use the bathroom -- satisfied the requirements for injunctive relief.

As a result, North Carolina state law does not prohibit UNC from accommodating the transgender plaintiffs' gender-consonant bathroom use.  If UNC refused such accommodations, however, the federal government is presently enjoined from enforcing such an interpretation of Title IX as a result of last weekend's decision from the federal court in Texas.  I read these conflicting injunctions to effectively permit UNC to choose for itself -- for now --  whether to accommodate transgender students, without a threat of either state or federal penalties for either choice it might make.

Tuesday, August 23, 2016

Federal Court Enjoins Title IX Transgender Guidance

This week, a federal court in Texas issued a preliminary injunction that bars the Department of Education from enforcing the interpretation of Title IX that is contained in its May 2016 guidance regarding transgender students. In that guidance, the DoE affirmed that discrimination on the basis of sex includes discrimination on the basis of gender identity and transgender status, and that as a result, institutions receiving federal funding must permit transgender students to access sex-specific facilities and programs that correspond to their gender identities rather than their birth-assigned sex.

The state of Texas is the lead plaintiff in a lawsuit that is challenging the DoE's interpretation. Yesterday, the federal district court granted the plaintiff's motion for a preliminary injunction, which means that while litigation is pending, the Department cannot insist that school districts and universities refrain from discriminating against transgender students, or revoke the federal funding from those who do.  The standard that the courts use to determine if a preliminary injunction is appropriate primarily considers whether the plaintiffs are likely to prevail on the merits, and that the balance of harm tips in their favor.  In addition, the court had to address several threshold issues regarding the justiciability of the case including the standing of the plaintiffs and the ripeness of the claim.

Substantive invalidity.  One key issue on which the court thinks the plaintiffs will likely prevail is their argument that existing regulation does not support the agency's position contained in the guidance.  The court disagreed with the agency's position that the regulatory ban on "sex" discrimination, subject to exceptions for sex-segregated facilities like bathrooms and dormitories, includes discriminating against transgender individuals by denying them access to facilities that are consistent with their gender identities. According to the court, "[i]t cannot be disputed that the plain meaning of the term sex as used in § 106.33 when it was enacted by DoE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth."

I think that even if conceded, that argument misses the point. It is possible to view transgender exclusion as sex-based treatment in the sense that a transgender individual's [anatomical, birth-assigned] sex is being viewed in relation to their gender identity.  Individuals whose sex and gender identities align can use the bathroom that matches their gender identity, while individuals whose sex do not align cannot the bathroom that matches their gender identity. Sex, even in its "plain meaning" attributed by the court, is still a factor being taken into account. An interpretation that this manner of discrimination is already prohibited by the regulations is therefore a permissible one for the agency to make.

Procedural invalidity. The court also concluded that the plaintiffs will likely prevail on its argument that the DoE should have used statutorily prescribed notice and comment procedures. When an agency promulgates a binding regulation, it must publish the rule in essentially draft form, get public input, and address the public's comments in the final version of the rule. However, when an agency issues sub-regulatory guidance that merely clarifies or interprets an existing regulation, it may legally bypass the notice-and-comment procedural requirements.

The court disputed DoE's classification of the guidance as an interpretive rule, concluding that it "de facto regulation" that should have gone through notice and comment, a conclusion that turns on the court's sense that the guidance was meant to be binding and not discretionary. But a key characteristic of an interpretive rule is whether, without it, the agency would have the legal basis on which to bring an enforcement action to the same effect. Here, existing regulations prohibit treating individuals differently on the basis of sex, subject to the exception for sex-segregated facilities like bathrooms and dormitories. Even if the guidance had never been published, the DoE could have advanced this position in the context of an enforcement action. In fact, it did that very thing.  I think the court missed an opportunity to discuss an important characteristic of an interpretive rule, the fact of an already-existing basis for enforcement. 

Ripeness. One other thing that surprised me about the court's opinion was the standard that it used to determine that the case was ripe. Here, the plaintiffs are asking the court to throw out the Department's guidance before it has been enforced against any funding recipient. According to a Supreme Court decision called Abbott Labs, such pre-enforcement review is only appropriate when the questions raised by the case are fit for review and that withholding of review creates a hardship for the plaintiff.  But notwithstanding this two-part test, the Texas court seems only concerned about fitness and not about hardship. In Abbott Labs, the drug manufacturer-plaintiffs challenging a USDA labeling requirement satisfied the hardship requirement because there were high costs associated both with compliance and with non-compliance. Are the schools in Texas and other plaintiff states in a similar double bind?  The cost of compliance is just to let transgender kids use the bathroom that matches their gender identity.  The percentage of students who are transgender is exceedingly small, maybe 1% or less.  For schools that do have transgender students in their population, it is possible to comply with the guidance without incurring any cost at all, which could not be said for the drug manufacturers in Abbott Labs.  Even the cost of non-compliance is distinguishable from that in Abbott Labs, where the Court was not only concerned with the possibility of incurring fines for mislabeled drugs, but also the particular cost to a drug manufacturer's reputation that come from being subject to an enforcement action.  This extra consideration should be necessary, since the penalties that result from the enforcement action itself are always ripe for review. And it doesn't seem to be present here.  In light of the court's omission of a key component of the ripeness test, I am guessing this issue will be an important one on appeal.

Tuesday, August 09, 2016

Florida accuser tries new tactic

The student conduct hearing process for Title IX cases at colleges and universities can be, among other things: fraught, painful, confusing, offensive, ineffective, and biased.

At the University of Florida, one student accuser is attempting to address the latter: bias. She  refused to take part in the conduct hearing for two football players she has accused of sexual assault and attempted sexual assault her because the man adjudicating the case is a football booster.

The woman did not report the assault to university or local police, instead choosing to use the student judicial process. Florida appoints adjudicators for Title IX cases. John Clune, the Colorado-based attorney who has handled many Title IX sexual assault cases (he is Erica Kinsman's lawyer), is representing the woman. He made the statement on behalf of his client: "the fact that UF has hired a football booster to adjudicate a sexual assault charge against one of the team’s own football players is a fundamentally skewed process in which [the complainant] refuses to participate."

Bias in the processes of both the school's judicial process and the legal system is rampant in Title IX cases. We saw it in Kinsman's case and it was a major theme in Jon Krakauer's book about sexual assault at the University of Montana. 

Read more here:

The players were suspended from the team for violating the student code of conduct. They were barred from campus but remained enrolled and took online classes. One player is planning to transfer (apparently as part of a deal, which included an apology), the other is remaining at the school and fighting the accusations and, as of last week, was practicing with the team (though he has not been officially reinstated).

It is unclear what will come of the boycott, but the action itself is important. It is an opportunity to really examine and potentially challenge the ways in which schools are adjudicating Title IX cases. It may also be an opportunity to assess the role and training of outside adjudicators. While the adjudicator in Kinsman's case against Jameis Winston, a former Supreme Court judge in Florida, was deemed acceptable by both sides, it was clear from the transcripts that he did know the student judicial process. A UF spokesperson said adjudicators are well-trained but apparently not vetted for bias the belief being that the training will somehow eliminate bias.

Schools need to do better. This is not news. But it seems as if schools that want to demonstrate attempts to change the climate of the campus should at least start at the judicial hearing process.

Monday, August 08, 2016

Law Professors Publish Support for DCL's Preponderance Standard

Over ninety law professors* have signed on to a white paper that defends the Department of Education's 2011 Dear Colleague Letter and its clarification that universities must use the preponderance of evidence standard when deciding sexual assault cases.  Under the preponderance standard, decisionmakers should find a respondent responsible for misconduct if the balance of evidence tips in that direction even slightly.  The agency felt the need to clarify Title IX's requirement of a preponderance standard after it had adjudicated cases against institutions that been requiring "clear and convincing" evidence of the respondent's guilt, a standard the tips the balance in favor of the accused, and the "beyond a reasonable doubt" standard, which tips it even more.

As this article notes, the recent white paper stands in contrast to other position papers like that of FIRE and the AAUP, which have criticized the preponderance standard out of concern for the rights of accused students. The white paper's authors argue that the preponderance standard is consistent with other applications of civil rights laws, and that there is no justification for a standard that would make it harder to address sexual harassment than other types of harassment and discrimination. Additionally, the white paper points out that the preponderance of evidence standard applies to lawsuits filed by students who have been disciplined for sexual assault. In a world where universities could use a higher standard such as clear and convincing to adjudicate sexual assault cases, but students who are disciplined could challenge the result based on the lower preponderance standard, there would be little incentive for universities to impose discipline on students accused of sexual assault.

Moreover, the white paper authors point out, the more defendant-protective standards of evidence that apply in criminal proceedings are used as a check against government abuse of power.  In contrast to government, which has the power to use criminal proceedings to potentially deprive citizens of their life, liberty, and property, a university's power is limited to expelling a student from school. Attempts to analogize to the criminal standard improperly "conflate" university discipline and criminal justice system, which have very different objectives.

*myself included -EB

Saturday, August 06, 2016

Another Religious Exemption Withdrawn

Another university (see this earlier post) has formally distanced itself from an earlier request for a religious exemption under Title IX. The Chronicle of Higher Education reports that Loyola University of New Orleans has written to the Department of Education to ensure that the agency no longer considers it among the institutions that have historically or recently exercised their statutory right to opt out of Title IX provisions that conflict with religious tenets.

In Loyola's exemption request, which it filed in 1986, the institution affirmed that regulatory obligations to include "termination of pregnancy or recovery therefrom" in its student health insurance plans conflicted with its Catholic tenets opposed to abortion. Today, however, the institution no longer offers a student health insurance plan, so the exemption is no longer necessary.

As the Chronicle's article points out, there was no legal reason for the institution to formally disclaim an exemption that only pertains to an obsolete program. Thus, the purpose of the letter seems to be entirely a matter of public relations. As religious institutions have lately rushed to claim exemptions that would permit them to discriminate against LGBT students, the list of religiously-exempt institutions has acquired a certain degree of notoriety. Loyola, like Pepperdine, looks to be going out of its way to distance itself from the other institutions on the list.

Friday, August 05, 2016

Not IX but...

Two stories this week that were tangentially related to Title IX or have Title IX implications.

First, the story everyone is talking about: Texas A&M's Chalk Talk for Women. Let's leave aside for now how these football for women camps/events are becoming a money-maker for intercollegiate football programs and what they exploit. The gist: offensive slides describing football tactics using sexual innuendo and re-writing the school fight song

Outside the Lines interviewed an attendee, a woman who is head of the Aggie Mother's Club. She defended the coaches and the event calling it satire and noting that no one she encountered during the event (there were 700 women registered) complained and that they enjoyed the presentations. She said she laughed it off and attributed it to the coach's sense of humor and time in the military. She did not feel it sent a negative message to people about anything because there was--in her opinion--no message being sent. She said the coaches were being attacked with negative messages. She is going back next year.

Others have noted that at a time when football programs especially are trying to teach young men to respect women, this was hugely inappropriate and a step backwards. It is inappropriate at any time, of course. But there factors that speak to the culture of the A&M program that could, if a Title IX issue arises, come to the forefront.

First, one of the coaches who made the presentation and was subsequently suspended without pay for two weeks was a former coach for the Miami Dolphins. An offensive line coach who was fired in the wake of the Jonathan Martin/Richie Incognito bullying scandal. This is an example of toxic masculinity and misogyny and how it travels from one institution to another.

[Side note: Jessica Luther's book about sexual violence and intercollegiate football is coming out soon and I am very interested in reading it. Here is an interview with Luther.]

Second, the Aggie female fan who found nothing wrong with the talk also is indicative of the culture of A&M football. It is possible that there was no visible reaction because 1) women did not feel comfortable speaking out or even walking out in that space which was marked by fervent fandom and sexism and.or 2) female fans expect and accept that behavior as the price of fandom. One must accept the culture as it is--just as that fan in attendance accepted the coach's sense of humor and attributed his demeanor to his military service.

This is especially troubling because when something happens and female student comes forward and says she was sexually assaulted by a player, those fans will turn on her. We have seen it everywhere. These victims get run out of town--almost literally--because of the backlash. The culture of football includes the culture of fandom and if programs are running events for fans that makes them responsible for this as well.

On a sightly more positive note, the two-week, no-pay suspension of the two coaches who ran the chalk talk, the condemnation of the head coach (who issued the suspension) and the school president is at least a demonstration that the program is not being indifferent to the issue. (I have a post planned about how Baylor keeps resisting this.)

The second story, which has received far less attention, is about racial discrimination in women's sports. Three Black female basketball players from Cottey College in Missouri are suing the school saying they were treated differently from white players. They spoke of segregated practices, less playing time, and eventually expulsion from the team for what the school is calling behavior problems.

Again, not Title IX, but a reminder that discrimination is intersectional and that Title IX does not address the issues that women of color face in sports. This story reminded me of Jennifer Harris's case against Penn State and Rene Portland as well as the one from earlier this spring from Iowa State. Head coach Bill Fennelly (along with the school) is facing charges from a former player that he discriminated against her because of her race. Nikki Moody said that the coach called her a thug and created a hostile environment. In sum, sexism is not the only type of discrimination female athletes face and racism happens regardless of how many people of color are on a team.

Supreme Court Stays Ruling in Transgender Bathroom Case

The Supreme Court has temporarily stayed a court order that would have permitted a transgender male high school student to use the boys' bathroom, consistent with his gender identity.  As a result of this action, the order, which issued as result of the Fourth Circuit Court of Appeal's recent decision that the student's rights were protected under Title IX, will not take effect until the Supreme Court decides if it will add the case to the docket for its upcoming term.

Reportedly, the Court will likely make this decision in October or November, which means the student in question will have to start the school year excluded from the boys' bathroom, despite the fact that he identifies as male.

Wednesday, August 03, 2016

Lawsuit Filed in Green Wristband Case

Kris blogged earlier about Tremper High School in Kenosha, Wisconsin, which is requiring transgender students to wear bright green wristbands as a way to enforce their exclusion from the bathroom consistent with their gender identity. As Kris noted, a Title IX lawsuit has been filed on behalf of a transgender student who is being targeted by the green wristband rule. Based on the now-public complaint, this post provides some additional detail about the lawsuit.

The plaintiff, identified in the complaint by his initials, A.W., alleges that he was informed of the new green wristband policy at the end of last school year, and expects that he will be required to wear the wristband when school starts again in the fall.  The policy apparently came about after A.W. repeatedly used the boys' bathroom in defiance of school officials' insistence that he use the girls' room or an out-of-the-way single-use stall.

A.W. also alleges that the school denied his male identity by referring to him by his (female) birth name, by refusing to change his name and gender on school records, despite having produced the required doctor's verification of his transgender status. by assigning him to room with girls instead of boys on a school trip, and by initially refusing to let him run for prom king. (School officials eventually let A.W. onto the prom king ballot following a petition and sit-in protest attended by 70 students.)

The lawsuit declares that this conduct by school officials violates Title IX as well as the U.S. Constitution's Equal Protection Clause. It notes that the Department of Education has clearly stated that Title IX requires schools to treat transgender students in a manner consistent with their gender identities, including in the context of bathrooms. It seeks a court order prohibiting the school from excluding him from the boys' bathroom and from otherwise treating him differently from other male-identified students.

Transgender students have won other cases asserting their right to gender-consonant bathroom use. Though not binding on the federal courts in Wisconsin, the Fourth Circuit Court of Appeals determined that courts should defer to the Department of Education's position under Title IX.  A transgender girl in Maine also won her case seeking access to the girls' restrooms at school, though her case was litigated under Maine state law rather than Title IX.

Tuesday, August 02, 2016

CA bill says no exemptions

Just a couple of weeks after Pepperdine University told OCR that it no longer needed its exemption from Title IX, a proposed bill in the California legislature would prevent discrimination against LGBT students (which is what those of us who critique the exemptions argue is happening). To be considered tomorrow (Wednesday), the bill states that any religiously affiliated school that receives money from the state of California may not discriminate against LGBT individuals.

The biggest area affected by this would likely be financial aid in the form of California state scholarships. Though I imagine state bonds for facilities and other such state-assisted projects and research would also put those schools on the hook for compliance--or rather non-discrimination.

In short, no exemptions for religious schools in California if the bill passes. The usual sides emerged when the bill was proposed: religious freedom versus anti-discrimination for LGBT people. If this bill does get passed, there is a potentially interesting conversation about whether Title IX exemptions on religious grounds should have to meet a higher standard. 

Monday, August 01, 2016

Second Circuit Reinstated Disciplined Student's Title IX Claim Against Columbia

A student who was disciplined for sexual assault may continue to litigate his claim that Columbia University discriminated against him on the basis of sex, the Second Circuit Court of Appeals ruled on Friday.  The appellate court overturned a lower court decision that had granted Columbia's motion to dismiss the Title IX claim on the grounds that it failed to sufficiently allege that sex discrimination motivated the alleged procedural and substantive errors that lead to his suspension.
The appellate court, however, determined that the plaintiff's complaint met the legal standard for alleging a violation of Title IX and should not have been dismissed so early in the litigation.  The ruling reinstates the plaintiff's case and allows it to proceed to the discovery stage, during which both sides will acquire evidence that they intend to use at trial.  At the end of discovery, Columbia may again try to get the case dismissed in advance of trial (summary judgment). Then the questions will turn to the sufficiency of plaintiff's evidence, but here, early in the litigation timeline, the only thing in question is the sufficiency of the allegations in his complaint. 

The Second Circuit was influenced in its decision by the 1973 Supreme Court decision McDonnell Douglas v. Green, which allows discrimination plaintiffs with minimal, circumstantial evidence to benefit from a temporary presumption of the defendant's discriminatory motive. Additionally, the court referenced the Court's more recent, 2009 decision, Ashcroft v. Iqbal, which held that a complaint must plead specific facts sufficient to support a plausible inference that the defendant is liable for the alleged misconduct. Read together, according to the Second Circuit, the two cases permit a plaintiff to survive a motion to dismiss where the complaint specifically alleged facts that support a "minimal plausible inference" of discriminatory intent.  Here, the court determined, the plaintiff's complaint met that burden. Even if it is not probable, it is plausible to infer, as plaintiff alleged, that Columbia was biased against men in the wake of negative publicity over its mishandling of female student's earlier complaints of sexual assault. Moreover, the complaint's allegations of procedural errors that occurred during the disciplinary process and the absence of evidence to support the finding against are allegations of the type of minimal, circumstantial evidence that plaintiffs should benefit from under McDonnell Douglas. 

This pro-plaintiff decision is binding in the Second Circuit, which includes New York, Connecticut, and Vermont. In these states, it's likely to interrupt the trend in favor of  universities' winning their motions to dismiss, as disciplined students should now have an easier time advancing to the discovery phase of litigation. Though such victories are only preliminary in nature (since the university can again to dismiss the case after discovery, and still could win at trial), they may affect universities' incentives to settle rather than go through the cost and hassle of continued litigation. Outside the Second Circuit, the trend in favor of universities winning motions to dismiss may continue unaffected, as courts there court continue to take a stricter view of Iqbal. However, it is also possible that other courts will find the Second Circuit's reasoning persuasive and adopt it as their own. After all, that is what happened with Yusuf v. Vassar -- the 1994 Second Circuit decision that laid out the framework for "erroneous outcome" and "selective enforcement" disciplined student cases, and which has been cited in every Title IX disciplined student case of late.