Tuesday, November 21, 2017

Oklahoma Jury Awards Transgender Professor $1.1 Million in Tenure-Denial Discrimination Suit

In 2015 we blogged about a lawsuit filed by the Department of Justice on behalf of a transgender professor, Rachel Tudor, who was denied tenure by her institution Southeastern Oklahoma State University.  At the time, we found it noteworthy that DOJ was taking the position that Title VII's prohibition on sex discrimination necessarily includes discrimination that targets someone for their transgender status, and we noted that a favorable outcome in this case would benefit transgender litigants under Title IX as well. 

2015 seems like a bygone era when it comes to the government's enforcement of civil rights, so it is particularly heartening to report that yesterday a jury of eight Oklahomans found in Tudor's favor and awarded her $1.165 million in damages. They reportedly found that the University was liable on three counts: denying Tudor the opportunity to apply for tenure in 2009-10 because of her gender, denying her again the following year because of her gender, and retaliating against her after she complained about workplace discrimination.

This really is a big deal.  A member of Tudor's legal team noted that this is the first transgender discrimination case under Title VII to make it to a jury trial. For her to win -- bigly -- in court that drew its jurors from a state not exactly known for being progressive on LGBT rights, shows that the law and culture are both shifting in favor of a necessary and expansive view of civil rights. 

Wednesday, November 15, 2017

High School Boy Challenges All-Girl Dance Team Rule

Today I was interested to read about a Title IX complaint filed by the Pacific Legal Foundation -- a public interest law firm that usually argues to overturn regulations, not enforce them --  on behalf of a male high school student in Minnesota who is challenging the "girls only" rule for dance teams in the state. There are two reasons why I think that this complaint is valid.

First, while it is theoretically possible for dance teams to be considered sports for Title IX purposes, that determination turns on whether institutions treat those teams in the same manner that sports are treated. To be considered sports, dance teams must have the same opportunities for regular season and post-season competition, be run by the athletics department, receive the same kinds of support as sports teams, make decisions for eligibility based on athleticism, and other similarities. However, the Minnesota State High School League, which issues statewide rules for sports and other activities permits schools to make "local decisions" about how the schools will treat their dance teams, a standard that seems to acknowledge the possibility that some, maybe many, do not treat them like other sports. I suspect that the most obvious way in which they are different from sports is that dance teams exist for the primary purpose of performing and compete as a secondary matter. My concern seems justified by the fact that the competition schedule for the dance team of Superior High School, where the complainant attends, has only three opportunities for regular-season competition. By comparison, the boys' swim team has fifteen, for just one example.  Bottom line: if dance is an activity and not a sport, it is not governed by the regulatory standard that permits schools to offer separate male and female sports teams, and the complainant should win.

But even if dance team is a sport, the applicable Title IX regulations only permit segregated teams if  "selection for such teams is based upon competitive skill or the activity involved is a contact sport."  Dance team is surely not a contact sport, so we have to ask: is selection based on competitive skill?  I don't know, but if Minnesota dance teams take any girl who tries out, then they are not based on competitive skill and they can't be segregated, and that's the end of discussion right there.

If selection is based on competitive skill, then it is permissible to have an all girls' team. However, Title IX still may permit boys to try out. That's because the regulations also require schools to permit "crossover participation" (a boy on a girls' team or vice versa) where there is only one team in that sport. There is an exception to this rule for contact sports, but dance team does not qualify for this exception. The other requirement for cross-over participation is that "athletic opportunities for members of that sex have previously been limited."  To be sure, this requirement is subject to multiple interpretations, one being that boys have historically had more athletic opportunities in general and therefore are never eligible to try out for girls teams.  But boys have prevailed before by arguing that their opportunities in that sport have been limited, an argument seemingly applicable to dance team and one that supports this student's claim that the exclusionary rule violates Title IX.

Ultimately I think the Pacific Legal Foundation attorney's statement to the press about this complaint is right on: the rule excluding boys from dance team perpetuates archaic gender stereotypes about the kinds of activities suitable for each sex. As this example shows, these stereotypes limit opportunities for boys and girls alike.

Saturday, November 11, 2017

SUNY Albany lawsuit

This past spring SUNY Albany's athletics director made the decision to cut the women's tennis team. The problem with the cut, in terms of Title IX compliance, was that Albany does not meet the proportionality prong. When a university cuts a women's team it must, by default, provide opportunities proportional to the gender breakdown in the undergraduate student population because it is neither expanding opportunities for women nor is it accommodating the needs and interests of students (because there is a viable team of interested women--the team that just got cut). 

The decision was contentious because AD Mark Benson told head coach Gordon Graham, who is part of the lawsuit, last spring that the team was being cut and Graham told his players, most of whom were international students who had to negotiate visa and recruitment issues, about the cuts which was supposed to stay a secret until the end of the season. Graham also filed a complaint with OCR. According to this article, Albany would have to add 97 opportunities for women in order to meet prong two.

OCR investigated this fall and found that the university was not providing equitable opportunities. Albany entered into a voluntary resolution agreement that included a three-year plan to increase athletics opportunities for women. However this statement from Benson makes me wonder exactly how they plan on achieving equity: "We have no plans to add any teams or bring teams back and no plans to cut any programs. We're not in a position from a budgetary standpoint to do that."

The university needs to recover money, allegedly, from the loss of revenue from the New York Giants who held summer training sessions on the campus.

Does Benson plan on adding 97 spots to current women's teams? 

This response may be why four athletes and Graham filed the lawsuit. The athletes are seeking reinstatement of the team. Gordon is also alleging age discrimination (he is 65) saying that he was pressured to retire before being told his contract would not be renewed. No report on when the lawsuit will be addressed in the courts.

Friday, November 10, 2017

No Evidence of Anti-Male Bias in Colgate Case

I strive to keep up with the decisions in cases brought against colleges and universities by students who are disciplined for sexual misconduct, in particular, the cases in which plaintiffs alleges that a university's decision to discipline them was motivated by bias against men, in violation of Title IX. Many of these types of claims are dismissed early in the litigation due to failure of the plaintiffs to allege a specific basis for alleging that gender bias tainted the universities' disciplinary process.  Some example of these decisions from recent months include:
  • Doe v. St. John's Univ., 2017 WL 4863066 (D. Minn. Oct. 26, 2017)
  • Doe v. Columbia College Chicago, 2017 WL 4804982 (N.D. Ill. Oct. 25, 2017)
  • Saravanan v. Drexel Univ., 2017 WL 4532243 (E.D. Pa. Oct. 10, 2017) 
  • Ruff v. Bd. of Regents of Univ. of New Mexico, 2017 WL 4402420 (D.N.M. Sept. 30, 2017) 
  • Streno v. Shenandoah Univ., 2017 WL 4407938 (W.D. Va. Sept. 30, 2017)
  • Stenzel v. Peterson, 2017 WL 4081897(D. Minn. Sept. 13, 2017)
On the other hand, some recent decisions have denied universities' motions to dismiss those claims, and permit the plaintiff to proceed with the next phase of litigation, discovery, in which the plaintiff gathers evidence in support of the allegations they have made. 
  • Doe v. Univ. of Chicago, 2017 WL 4163960 (N.D. Ill. Sept. 20, 2017) 
  • Rolph v. Hobart & William Smith Colleges, 2017 WL 4174933 (W.D.N.Y. Sept. 20, 2017) 
  • Doe v. The Trustees of the Univ. of Pennsylvania, 2017 WL 4049033 (E.D. Pa. Sept. 13, 2017) 
  • Doe v. Case W. Reserve Univ., 2017 WL 3840418 (N.D. Ohio Sept. 1, 2017)
At the end of discovery, university defendants have another chance to dismiss the claim by moving for summary judgment. This motion forces the court to consider the quality of the plaintiff's evidence, rather than just the sufficiency of the allegations in the complaint as it does in response to a motions to dismiss. Only by winning at this stage can the plaintiff proceed to a trial and have the opportunity to convince a jury that the evidence demonstrates that the university is liable for gender bias. Far fewer cases make it to this stage in the process, and since decisions involving motions to dismiss disciplined students' Title IX claims have become rather common, it is the summary judgment decisions that are now more interesting to me.

Recently, a federal district court granted summary judgment in favor of Colgate University; dismissing claims of a student that the university had expelled for sexual misconduct. Like many other disciplined-student plaintiffs, the plaintiff here alleged that Colgate's anti-male bias was rooted in the current social and political climate, which has forced colleges and universities to be more responsive to reports of sexual misconduct when they occur. While some courts have dismissed bias claims that are based on these types of allegations, on the grounds that bias (if you will) against sexual misconduct respondents is not the same thing as bias against men, others have accepted that allegations along those lines are sufficient at the motion to dismiss stage. Notably for Colgate's purposes, one such court is the Second Circuit Court of Appeals, which has jurisdiction over the federal courts in New York, where Colgate is located.  Since the Second Circuit's decision in Doe v. Columbia University last year, I've been interested to see what happens to cases with similar kinds of gender-bias allegations as they get further along in litigation and reach the summary judgment stage?  Do plaintiffs manage to marshal enough evidence of the link between a generalized, anti-rape climate, and anti-male bias in their disciplinary proceeding, to make it to a jury? 

In the Colgate case, the court said no, as it dismissed the plaintiff's bias claim on summary judgment. It rejected the plaintiff's evidence, for example, that a "sexual climate forum" held at the university was evidence of institutional bias against men, where there was no evidence that this forum was anti-male.  Nor was the existence of campus activism around survivor support, or Colgate's efforts to comply with the 2011 Dear Colleague Letter, especially given that not all men accused of sexual misconduct at Colgate since 2011 have been found responsible. The court also rejected as evidence of anti-male bias: assurances by campus officials that students found responsible for sexual misconduct will be expelled, training session that used hypotheticals where the person consenting was female and the person asking for consent was male and the victim was female, and some differences in the way that complainants and respondents are treated differently in the disciplinary process.

This outcome should hopefully provide some reassurance to campus administrators that they are not caught between a rock and a hard place when it comes to sexual violence. While it is theoretically possible to imagine actual examples of anti-male bias (a fact that explains the willingness of courts to allow for litigation to continue when the allegations are sufficient), the mere fact of working to prevent and  respond to sexual violence is not inherently anti-male.  Implementing policies and procedures that were responsive to the 2011 Dear Colleague Letter is not inherently anti-male. Awareness-raising is not inherently anti-male. Victim-sensitivity is not inherently anti-male. If this is all that a plaintiff can marshal in support of their bias allegations, it is clear that is not sufficient evidence of institutional bias.