Friday, September 30, 2016

Coach Wins $3.35 Million Jury Verdict for Retaliation

Last week we blogged about the trial between San Diego State University and its former women's basketball coach Beth Burns.  Burns was suing on the grounds that she was wrongfully fired from her job and for reasons that involved retaliation for her complaints about gender inequality that affected her team.

By way of update to that earlier post, we learned this week that the jury did not accept the university's argument that Burns was fired for legitimate reasons, and awarded her $3.35 million in damages.

Though we haven't had one on the blog in the last couple of years, this case is part of a broader trend over the last 10 or so years or so, where retaliation proves a successful litigation strategy for coaches who are terminated or face other reprisals on the job. It also seems to be a trend that when coaches win retaliation claims, they win big.

Tuesday, September 27, 2016

Another Court Requires School to Accommodate Transgender Student's Bathroom Use

On the heels of a similar post from last week, another federal district court has enjoined a school district's policy of banning transgender students from using the bathroom that matches their gender identity.  An elementary school student in Ohio, a transgender girl, will be able to use the girls' bathroom while she litigates her permanent right to access gender-appropriate facilities under Title IX. Similar to last week's ruling, this court recognized the plaintiff's likely success on the merits of her claim as well as irreparable harm in delaying the remedy of a court order.

Simultaneously, the court in this case considered and denied the school district's motion to enjoin the Department of Education's enforcement of its interpretation that Title IX covers discrimination against transgender student. In this regard, the court's opinion contrasts with a federal district court decision last month that granted the state of Texas's motion to enjoin Title IX's enforcement.  Notably, the court in the current case was not deterred by the purported "nationwide" scope of the Texas injunction:
Because Ohio was not a party to the Texas litigation, and because this litigation was initiated before the Texas court issued its preliminary injunction, the injunction does not apply here. This is also consistent with the Supreme Court’s admonition that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” 
The court in the Ohio case conducted a thorough analysis of Title IX's enforcement mechanisms before determining that it does not have jurisdiction to conduct pre-enforcement review of the Department of Education's policy. Title IX expressly provides educational institutions with the ability to appeal to the federal courts after the agency orders withdrawal of their federal funding for violations of Title IX.  The court determined the availability of post-enforcement judicial review precludes earlier review.  The court drew parallels between Title IX's statutory provisions governing enforcement actions and judicial review to the analogous provisions in another statute (the Mine Act) that Supreme Court concluded similarly precluded pre-enforcement judicial review, while distinguishing it from another statute (the Clean Air Act) in which the Supreme Court permitted pre-enforcement judicial review.

We now have two district courts with competing positions on whether the Department of Education's transgender policy is vulnerable to injunction. Showdown!

Monday, September 26, 2016

Title IX Retaliation Case Heads to Jury

This week, jurors in San Diego will decide if San Diego State University committed unlawful retaliation when it fired women's basketball coach Beth Burns in 2013.  At the time, Burns was a veteran head coach with a long success record and who had just posted a record number of season wins.  She was also just nine months in to a 5 year renewed contract, and was making well over 200,000 a year.  Her past performance evaluations praised her for running a solid program and doing an "excellent job."

So why was she fired?  That is what the jury will have to decide after today's closing arguments summarize a month-long trial's worth of testimony. At the time Burns was fired, university officials cited as "sole cause" for her termination an incident in which she slapped her assistant coach's knees with a clipboard as they watched a game from the sidelines. At trial, however, witnesses for the university testified that Burns had a long history of treating her colleagues and employees with anger and disrespect.

Burns, on the other hand, testified that she was fired because she blew the whistle on unequal treatment for the women's athletics, including her team.  Reportedly, a key piece of evidence in her case is an email between the (then) athletic director and a former university vice present that describes Burns as "driving us crazy w complaining."

Other questions raised a trial include: Why did the former athletic director destroy the notes of a key meeting about Burns with a university vice president? What did the president mean when he brought up Bobby Knight (former Indiana coach famous for his temper) in his testimony?  Was Burns sabotaged by a member of her own staff who was working in cohorts with an associated athletic director to create a biased record of the coach's behavior? And of course, the question of whether the the university can credibly claim that Burns was fired for "misconduct" begs the question, was her conduct in fact a departure from athletics-cultural norms?  (As one witness testified, "What most people call yelling, we (in athletics) call communication.”)

The jury is expected to receive the case on Tuesday, and will take however long it needs to render its verdict, to which nine of twelve jurors must agree.

Note: This is not the first retaliation case we've blogged about against San Diego State. In 2007, the university was sued by a former women's swim coach. She alleged that she was fired for complaining about gender inequality and sexual harassment. The university claimed that she was fired for poor performance, though, remarkably, the athletic department had closed the pool for seven years, making it difficult to produce a winning record!  Eventually the university settled for $1.45 million dollars.

Wednesday, September 21, 2016

High School Must Permit Transgender Student's Use of Boys' Bathroom While Litigation Proceeds

A transgender student in Kenosha, Wisconsin, has won a temporary injunction against the school district that will permit him to use the boys' bathroom in accordance with his gender identity while a court decides the merits of his claim that exclusion violates his rights under Title IX and the U.S. Constitution.  Because the plaintiff's birth-assigned sex is female, his high school had been insisting that he either use the girls' restroom or an out-of-the-way single-user facility. Additionally, the school made headlines last spring when they reportedly announced a policy that transgender students would have to wear green wristbands to help school officials determine any bathroom infractions.  (It is not clear to me whether this policy actually took affect.)

Earlier this week, the court denied the school district's motion to dismiss the plaintiff's case, which allows the case to proceed to the next stage of litigation, and eventually a judgment on the merits or a trial. Then, it granted the plaintiff's motion for a preliminary injunction, which grants him access to the boys' bathroom while his case is pending. The legal standard for a temporary injunction requires the court to decide that the plaintiff is likely to win on the merits, as well as that he will face irreparable harm if the relief he requests is delayed.  On the second point, the judge reportedly considered experts' testimony about the psychological harm that transgender individuals experience when their gender identity is denied.  

Last year a transgender student in Virginia won a court order that permitted him to use the bathroom according to his gender identity, but the Supreme Court issued a stay that delays the effective date of that order while it reviews the case.  Notably, however, the Supreme Court's stay did not involve a preliminary injunction and addressed a case that was further along in litigation than the Wisconsin case. So the issuance of a stay in that case does not necessarily dictate a similar outcome here.

Thursday, September 15, 2016

UNH's Million Dollar Scoreboard

As an alumna of the University of New Hampshire, as a scholar of sports, as an educator and advocate for education, I am disappointed in the university's choice to spend $1 million of a $4 million donation to a scoreboard for the new football stadium.

The gift is from the estate of Robert Morin, an alum and employee of the school who spent his 50-year career as a library cataloger. People were shocked that Morin had accumulated such an amount throughout his life and then that he left it all to the university. It gave many of us those warm, fuzzy feelings about our alma mater or respective alma maters.

Morin only restricted $100,000 of the donation--earmarked for the library--so UNH technically did not violate any restrictions on the money, though many, myself included, believe they violated the spirit of the donation. Another million lost in the football arms race. Wasted by an institution trying to be something it is not--a big-time football school.

I have complicated feelings about the morality of football, especially college football, in an era of academic and recruiting scandals and a moment when we must acknowledge the trauma of the sport, and the disproportionate effect of that trauma on poor men and black and brown men. But I am not inherently opposed to some of the money going to the football program. I am opposed to it going to a scoreboard which, in the age of planned obsolescence, will be out of date in 5? 10? years. Use it to endow a scholarship for a player who wants to go grad school maybe. For tutoring or other academic enrichment opportunities if you want to use the money in athletics. Pay it forward; make it meaningful.

In addition to the fact that this spending seems neither fiscally nor morally responsible, it may have Title IX repercussions. I have not seen the scoreboard nor have I seen the athletic department's budget this year, so I cannot say for sure, but if that scoreboard can only be used for football, it is benefiting only male athletes. Even if it can be used for other sports, it still likely benefits more men than women. So I am wondering if the university has earmarked $1 million that will go towards increasing the quality of the experience of 120ish female student athletes. New turf for the field hockey team? Chartered flights for the soccer team?

Yes, because Morin did not earmark most of the money, the university could spend it in athletics. But spending money in athletics comes with its own set of rules--including compliance with a federal law.

Friday, September 09, 2016

Frostburg State Agrees to Title IX Compliance

Today the Department of Education's Office for Civil Rights announced an agreement with Frostburg State University in Maryland that will obligate the university to address violations of Title IX revealed by an OCR investigation of 40 incidents of sexual harassment and sexual assault that the university had a responsibility to address.

In a press release, OCR summarized some of the university's violations as follows:
Required reporting by mandatory reporters that were not made even though they had notice of an alleged rape. 
Reported off-campus incidents and incidents involving non-student victims or perpetrators that were not investigated or were not fully investigated. 
Repeated violations of a no contact order that were not properly addressed and adequate steps to safeguard the victim were not taken. 
Sufficient interim measures that were not provided to victims. 
Requests for confidentiality that were not balanced against the need to keep the community safe. 
Title IX investigations that were not launched due to an improper reliance upon local or campus police investigations and reports.
In addition, the university resolved a complaint informally that should have gone through a formal hearing process, and took 10 months to resolve another. In one case, the university failed to conduct its own independent investigation of a matter that it instead referred to local law enforcement.  And while recent revisions to the university's policy for addressing sexual harassment and sexual violence complaints addressed most of the earlier shortcomings, some deficiencies remain.

In the agreement, the university agrees to bring its policies into compliance, conduct additional training, reimburse two complainants for the cost of counseling and academic services that the university should have provided, address identified failures to conduct adequate investigations, provide written notice of remedial services, and provide written notice of the outcome of the complaint investigation to the parties, conduct its own retrospective review of sexual harassment complaints to determine whether the investigation was prompt and equitable, and enhance its outreach and climate assessment efforts.

Monday, September 05, 2016

In the wake of Brock Turner's release...

There was a protest outside of the country jail in California last week when former Standford student-athlete Brock Turner was released after serving 3 months of his 6-month sentence for sexually assaulting an unconscious woman on campus. That protest centered largely on the judge responsible for the lenient sentence who protesters are trying to get removed from the bench. These types of actions have been occurring since Turner's sentencing.

The protests have moved east, but they look a little different. Outside of the Turner family home in Dayton, Ohio where Turner will be on probation and have to register as a sex offender, which news reports say he has yet to do, are armed protesters. Armed with guns. There are signs as well calling for Turner's (and other rapists' ) castration.

Where to begin?

First, as I have noted previously, this is not a Title IX case. It is, however, a case of a violent athlete and the privilege conferred by being an athlete (and, in Turner's case, a white, class-privileged athlete). It is relevant because athlete privilege often affects how Title IX procedures are carried out (or not). Also, given reports about Turner's behavior coming from female members of the swim team, there was probably a Title IX case in there if someone had chosen to pursue it.

What I am more interested in regarding these protests is the violence of them. The threat of personal harm, all extralegal, is disgusting. Turner did something horrible and disgusting; so did the judge that handed down the 6-month sentence. Protesters with large guns and signs suggesting that Turner should be raped or castrated do not make any of it any less disgusting. They do not right the wrongs.

Are the protesters suggesting that vigilante justice is more fair than the system to which Turner was subjected? I know there have been a lot of superhero movies this summer, but the romanticization of vigilantism is just that, romanticized. And it is without context--especially historical context that includes its use against racial, ethnic, and sexual minorities. Vigilantes have used guns and castration and rape to keep people in their place when they thought the law was not doing enough or that these extralegal actions could serve as a warning.

So why these actions?

It goes beyond vigilantism. These protests and the symbols and words being used are a means of reifying a masculinity that is still violent and still sexually violent. In other words, it is not questioning the level of violence in our society, it is suggesting that certain forms of violence are more acceptable than others. Castration is sexual violence. The rape of men is sexual violence. Guns are symbols and weapons of violence. And they are all about the power of men. What these protesters are suggesting is that their form of violence, encouraged by state-sanctioned gun use in the form of Ohio's open carry law, is real masculinity. Turner's form of violence--sexually assaulting an unconscious woman--is not a proper display of masculinity. Slinging a semi-automatic across your body and standing watch outside the home of a convicted rapist is an acceptable use of violence, based on these displays.

This is also about class and class-based masculinity. To some people, including those standing outside his house, Turner is not doing masculinity in an acceptable way. His class privilege, his sport (swimming), and the nature of his crime all contribute to the perception that Turner is not the right type of masculine. Hegemonic masculinity, how it is created and embedded in society, is on display on that sidewalk.

Amid all this violent masculinity, where is the concern about the woman who was raped? About women who are and will be victims of sexual violence? Where is the challenge to rape culture and to the culture of violence more generally? It is missing. It is all missing from that protest, which is sadly ironic but very much proof that this is not about the sexual violence perpetrated against women.

There are no apologies to be made for Brock Turner, and he has already been granted too much leniency. His enactment of violence and the protesters' enactment of violence are both tied to violent masculinity, and violent masculinity is at the heart of rape culture.

Friday, September 02, 2016


University of Florida:
The student hearing of football player Antonio Callaway went as predicted. The outside arbiter found him not guilty of sexual misconduct.The victim, protesting the use of arbiter who is an alum and contributes money to the football program, boycotted the hearing.
It is unclear whether the victim plans  to take any additional action. Callaway is in action this Saturday against our local team, the University of Massachusetts. Interestingly, five of his teammates are not. They have been benched for various offenses including shooting BB guns in the residence halls and fighting during practice. Team culture...
One important clarification about this case. The media I read prior to my initial posting implied that using an outside arbiter (something I suggested might need review as a legitimate procedure for handling cases), was a common practice at UF. In fact, it is not. This was the first time UF had gone this route. This is eerily similar to Erika Kinsman's case at Florida State where a retired judge was brought in to conduct Jameis Winston's hearing and found him not responsible for sexual misconduct.

Kent State
The plaintiff who filed a lawsuit against the school in February 2016 alleging the school violated Title IX in the handling of her report of rape by her softball coach's son, has a filed a second lawsuit. This one is related to the university's failure to provide documents, including personnel records and student reviews of the softball coach, needed for the case. A judge has ordered this lawsuit to mediation. KSU has said the records requests from the plaintiff lack merit and specificity. It seems they are going down the dig-in-our-heels route.

California bill:
The bill initially proposed by state legislator Ricardo Lara has been amended after intense backlash from conservative religious organizations and schools. The initial attempt by Lara was to prevent these schools from discriminating against LGBT students by denying them exemptions. He changed the bill to mandate that religious colleges with exemptions reveal that fact (to whom or how is unclear based on media coverage) and that they report to the state when a student is expelled for violations of morality codes.
The bill and the ensuing controversy was mentioned in a recent Atlantic piece about the ongoing tensions between religious institutions, LGBT discrimination, and government funding of education.

The transfers issue:
Indiana State University took one day to dismiss from its football team a transfer from after they became aware of his alleged involvement in a sexual assault when he was at the University of Kansas. Though I remain suspect about the exchange of information that occurs in the transfer process, it does seem like ISU acted quickly. Perhaps it was just because a civil lawsuit against the player has been announced and ISU does not want to get caught up in the whole thing. In short, the decision was not very proactive, but it also was not as reactive (i.e., let's wait to see what happens) as we have seen in other situations.