Wednesday, January 31, 2018

Are they or aren't they?: Going to court in a time of rule change

Last week Erin wrote about a civil lawsuit against the government, which rescinded Obama-era guidance on Title IX's application to campus sexual assault, filed by groups who work to end sexual violence. This lawsuit, regardless of its success, illustrates the frustration with the current administration's lack of clarity on how and to what the law applies.

The confusion and frustration is also apparent in how transgender students' claims of discrimination are going to be handled by the Office of Civil Rights (OCR). The Huffington Post has reported on--at best--mixed messages about protecting transgender students. Almost a year ago, the administration said it would not apply Title IX to transgender students, in contrast to the previous administration. But in early summer, a memo internal to OCR said the office should still take complaints of discrimination from transgender students but that they may use their own discretion on whether to take on cases of bathroom discrimination. HuffPo reported several cases that were closed--without any investigation--when employees told complainants that these issues were not in their purview.

It is all very confusing. We do know that OCR's review of  cases featuring access to facilities for transgender students has decreased this past year from the previous one--because there are 40% fewer complaints in this area. This does not mean things are getting better. This means students and their allies do not trust the government. And they have no reason to.

A recent piece on the Daily Beast  discusses how transgender students should proceed in the current moment when we are hearing many and conflicting statements about how and whether transgender students will be protected. And the answer is: go to the courts.

Erin's two posts from last week about transgender students' success (at various levels of the process), though arguably anecdotal, reinforce the validity of this tactic; while the executive branch is broken, we should be looking to the courts.

Tuesday, January 30, 2018

Michigan State Investigated Nassar in 2014

The Atlantic recently reported in more detail about Michigan State's 2014 investigation of Larry Nassar, who was recently sentenced to up 175 years in prison for molesting athletes he worked with in his capacity as doctor for the U.S. gymnastics team, and who also worked for Michigan State's athletic department.  In 2014, Michigan State received a complaint from an athlete. After investigating the complaint, university employees found no evidence of misconduct and cleared Nassar to return to work. As the Atlantic describes it:
The Title IX complaint—in which the former MSU student Amanda Thomashow described Nassar massaging her breasts and vaginal area during medical examinations—was handled by Kristine Moore, the school’s Title IX coordinator and a full-time MSU employee. Moore, now MSU’s Assistant General Counsel, responsible for protecting the school from legal liability, concluded that Nassar’s behavior was “medically appropriate,” a judgment she reached based on interviews with three medical specialists and an athletic trainer. All four had personal ties to Nassar, and all four were employed by Michigan State.
The article also describes how Moore, the Title IX Coordinator, gave Thomashow a sanitized version of her final report, that omitted findings about the "unnecessary trauma" on his patients. That version was not publically released until recently, raising questions about why it was kept private and the effect of its suppression on Nassar's continued behavior. The article also questions why Michigan State chose to investigate the complaint internally, rather than outsource it to a private firm. Title IX officials are required to avoid conflicts of interests when handling Title IX complaints, and outsourcing investigations is a way to ensure that bias and familiarity with the parties does not influence the investigators' and decisionmakers' actions. External investigations are also used when the scope of an investigation is beyond the capacity of a university's staff, or (as I pointed out to the reporter) when the university needs to assure the public that the outcome of the investigation is unbiased. 

Here, there was obviously a pattern of abuse for investigators to discover. At that point, according to another expert quoted in the story, they should have realized that the scope of the investigation and its impact on the university warranted outside help. When I spoke to the reporter about this story, I had to consider the possibility that the failure to make that decision was a good-faith mistake. But I also acknowledged that the way the investigation was handled raises the possibility that university officials acted with intent to protect a renowned and powerful physician on its staff. As Michigan State is now under investigation by the state attorney general, it is possible more evidence will come to light, whether Michigan State's motives were benign or nefarious. 

Friday, January 26, 2018

Lawsuit Challenges Withdrawal of Campus Sexual Assault Policy

A group of organizations that advocate for sexual assault victims filed a lawsuit this week challenging the Department of Education's withdrawal of guidance documents that the prior administration had used to clarify Title IX's application to institutional response to sexual violence.  The complaint points out several of the ways that the 2017 withdrawal of the 2011 Dear Colleague Letter and 2014 Q&A weakens educational institutions' responses to sexual assault claims.  For example, the complaint alleges, the withdrawal prohibits educational institutions from issuing interim measures that adjust complainants' work and class schedules and housing assignments, requires them to consider the impact on a perpetrator's access to education even after the individual has been found responsible for sexual misconduct, permits them to ignore off-campus misconduct when deciding whether the complainant has endured a sexually hostile environment, permits one-sided appellate rights, and many other examples.

The complaint alleges that the agency's motivation is bias against complainants that is rooted in gender stereotypes that women's reports of sexual assault are not credible (a stereotype that persists all the way to the head of the Executive Branch, the complaint alleges).  The agency was also relying on misinformation, the complaint alleges, such as its belief that the 2011 Dear Colleague Letter limited due process protections for students, its belief that the DCL caused schools to treat respondents unfairly, and its belief that the false reports are rampant when research shows they are rare.

The complaint alleges that the withdrawal violates the Administrative Procedure Act because, in relying on stereotypes and false information, it constitutes arbitrary and capricious agency action. Its second count alleges that by disadvantaging victims of sexual harassment, the withdrawal is outside the scope of the agency's authority under Title IX. And it alleges that the reliance on gender stereotypes and disparate impact on women is a violation of equal protection secured by the Constitution's Fifth Amendment.

Civil rights lawsuits like this have a hard road to victory, to be sure. They often fall to threshold questions on standing, mootness, and finality, for example. Other things working against the plaintiffs here are the narrowness the disparate impact doctrine, the limited contexts so far in which courts have recognized gender stereotypes, and the tendency for courts to defer to agencies' decisions that lead to the absence of enforcement. But irrespective of this lawsuit's eventual success in the judicial arena, its impact in the political arena is as important or even more so. The lawsuit signals a marshaling of opposition against the direction the Department of Education is taking on sexual assault and serves as a focal point for political pressure. Additionally, it combats the mythologizing of the 2011 Dear Colleague Letter as the enemy of due process and provides a cogent argument against its withdrawal that will help to educate the public and mobilize political action. I'll be watching and updating the progress of the lawsuit in court, but its extra-judicial influence is important no matter the lawsuit's outcome.

Thursday, January 25, 2018

University of Iowa enters into voluntary resolution

The University of Iowa has entered into a voluntary resolution with the Office of Civil Rights 20 months after the investigation by the agency into a complaint of disparate treatment of male and female student athletes.

The complaint was filed by members of the field hockey team and part of a larger confluence of events which involved the firing of long-time field hockey coach Tracy Griesbaum and the removal of her partner, senior athletics administrator, Jane Meyer from her position immediately after Meyer complained about gender equity in the department.

The University has framed the resolution as a victory noting that the investigation revealed no violations, but only disparities in treatment in the areas of  equipment, recruiting, and locker rooms. The University will have to submit reports in April and June which state how they will address these disparities. They must also, by the end of this month, explain how they were in compliance in 2016-17. I am interested in seeing that report.

Two thoughts on this "resolution." First, claims of victory based on disparities versus violations borders on offensive in part because of the culture of the department (more on that below), the history of inequitable treatment, and because disparities are violations. The law mandates equitable treatment across genders. To have a disparity means there is not equitable treatment.

Additionally, these are disparities that have been around for years and years. In the early aughts I served, as a graduate student, on the Gender Equity Subcommittee charged with assessing equity as part of the NCAA's (now defunct) accreditation process of DI schools. We heard about the same things: lack of recruiting dollars for coaches of women's teams, inequitable facilities and equipment and access to them; and more. There is no amount of elapsed time that results in a disparity becoming a violation (in part because of the semantics I mentioned above). But certainly for Iowa to tout lack of violations when these disparities have been persistent and ongoing, seems inappropriate--at best, and borders on offensive.

Two, I fear that the fact of OCR finding no violations means Iowa is (nearly) good will do little to address the atmosphere in the department in which women--as athletes and administrators--continue to face discrimination. This atmosphere has been maintained--if not created--by athletics director Gary Barta who seems to be doing little to address the situation beyond what he is required to do.

I note here that the first complaint filed by the field hockey team members was about how complaints against female and male coaches were handled differently by the department was never investigated. There are several examples* of members of the football coaching staff endangering the health and safety of their athletes with no repercussions. While the University cannot deny its loss in the Jane Meyer case, which resulted in a jury award, the settlement with Griesbaum means they admit no guilt. This is all to say that there are issues in Iowa athletics that extend beyond locker rooms, equipment, and recruiting. I imagine many at and associated with the university are disappointed in this "resolution."

Also a note about the first article linked above which was the only I found about the resolution agreement: it incorrectly states that compliance with Title IX is measured by the three-prong test. As we have written repeatedly, the test measures one aspect of  compliance: participation. I would argue that these misunderstandings that compliance is only about numbers of athletes is part of the reason why people do not see inequitable treatment (i.e., quality of experience) as a violation/non-compliance.

* Including the choice to keep an injured quarterback in during a bowl game Iowa was losing badly; an example cited by a former ESPN analyst in a story about why he left his job when he felt complicit in the violence done to football players.

Wednesday, January 24, 2018

Courts Address Deliberate Indifference, Anti-Gay Harassment in Recent Cases

A federal district court in Massachusetts recently denied the City of Attleboro's motion to dismiss a claim that the school district violated Title IX by failing to adequately respond to bullying of the plaintiff by her high school peers. The plaintiff was targeted for persistent name-calling, including anti-gay slurs, over several years. The school district argued that the bullying was outside the scope of Title IX because it had nothing to do with the plaintiff's sex, but the court rejected that argument because, "sex discrimination can be based on sex stereotypes. Actionable stereotypes include those based on sexual orientation." The court also determined that a jury could decide that the school district's response to the bullying that it knew about amounted to deliberate indifference. Though the school district allegedly did more than nothing, it is possible to view its response as "clearly unreasonable" because it was inconsistent and failed to escalate as the problem persisted.
 Harrington v. City of Attleboro, 2018 WL 475000 (D. Mass. Jan. 17, 2018).

In another recent decision involving K-12, the Houston Independent School District did successfully dismiss a Title IX claim challenging the adequacy of its response to a report of sexual assault by a 12 grade boy of a 10th grade girl. (He placed her hand inside his pants, they disputed whether it was consensual.) The court determined that the allegations against HISD did not amount to deliberate indifference since it was not clearly unreasonable to defer to the investigation of the school district's police unit. Nor was the school district clearly unreasonable in limiting its response to what was in effect a no contact order, since that order was "mostly successful" in preventing future contact between the two students. Ayala v. Houston Indep. Sch. Dist., 2018 WL 496898 (S.D. Tex. Jan. 22, 2018).

Tuesday, January 23, 2018

OCR Finds Title IX Violations at Buffalo State

Inside Higher Ed reported last week on its recent discovery that the Department of Education's Office for Civil Rights had concluded last November that Buffalo State failed to comply with its obligation under Title IX to promptly and effectively respond to an incident of sexual misconduct about which it had notice,even though the incident occurred off campus and even though the student who allegedly assaulted did not make a formal complaint to the university. This enforcement action serves as evidence that even as OCR politically seeks to distance itself from the prior administration's ramping up of Title IX's application to sexual misconduct (including its withdrawal of the 2011 Dear Colleague Letter), the agency remains in practice committed to a very similar enforcement strategy based on an interpretation of existing regulations and guidance. (Related news about the OCR's recent efforts to improve public access to information about ongoing civil rights complaints, despite having earlier criticized the prior administration for taking steps towards transparency, provides another timely example of OCR's tendency to criticize the prior administration while endorsing its approach.)

According to OCR's findings in the Buffalo State case, a female student-athlete appears to have been sexually assaulted by a male student-athlete in an encounter off campus. The female student, referred to in the findings as the complaint, spoke to university campus police about the encounter after her friend called them to their dorm. The university police called an ambulance as well as the local Buffalo police (which would eventually determine that it lacked probable cause to proceed against the alleged assailant in a criminal proceeding), and later, informed the Title IX Coordinator of the report as well.  The Title IX Coordinator also received information about the incident from the complainant's coach, who was informed by the complainant's mother about the incident the day after it happened. Yet despite its knowledge of the incident, neither the Title IX Coordinator nor the university police conducted an investigation into the incident. OCR concluded that this failure to investigate amounted to a violation of Title IX. It disagreed with the university that it was justified in not going forward with any kind of response by the facts that (1) the incident took place off campus, (2) neither the location of the incident and the alleged assailant were part of a pattern of sexual misconduct, and (3)  the complainant did not file a formal complaint seeking disciplinary action against the alleged assailant. Rather, OCR insisted that university officials had enough information to at least conduct interviews of the complainant, alleged assailant, and witnesses. Additionally, its findings included facts that attribute the complainant's failure to file a formal complaint to some shortcomings on the university's part.  The information she received about the disciplinary process was at times incomplete, and at other times confusing. Moreover, the complainant believed after talking to the Title IX Coordinator that the process wouldn't necessarily protect her from seeing the alleged assailant in class, which was her primary concern.  She had the impression the Title IX Coordinator was trying to talk her out of moving forward in that direction.

OCR also faulted the university for failing to provide the complainant with interim measures. The morning after the incident, the complainant's mother called her coach and requested assistance ensuring that the complainant's anticipated absences would be excused by her professors, and in getting the alleged assailant moved from a class in which both students were enrolled, and the complainant later additionally requested a "no contact" order.  Despite further inquiries into these measures by the complainant, her mother, and their advocate, in the end, the the university provided no assistance negotiating excused absences with her professors, leading to the professors' conclusions (contrary to university policy) that the absences were not excused.  Nor did they issue a "no contact" order.  And while they did initiate the alleged assailant's removal from the course, they did not inform the complainant that he had stopped attending so that she would feel safe to return. The university's failure to assist the complainant led to her withdrawal from the university.

Buffalo State is obligated to improve its staff training on responding to incidents of sexual harassment and misconduct. Additionally, it will reimburse the complainant for expenses she incurred besides her already-reimbursed tuition, the semester she withdrew.  

Monday, January 22, 2018

Title IX Claims Dismissed in Two Discipline Cases

In two separate cases, federal district courts ruled that the plaintiffs who were suing their schools after being expelled for sexual misconduct did not satisfactorily allege or support allegations that the school's disciplinary process was tainted by gender bias in violation of Title IX. One of the plaintiffs, however, succeeded in alleging breach of contract claims and can continue to litigate on those grounds.

In the first case, a male student was dismissed from the nursing program at Del Mar College in Texas after multiple incidents misconduct that included sexual comments and gestures made to his classmates.  The court summarily dismissed his claim that the school treated him unfairly compared to female students because he could not show any example in which the college failed to discipline a female student who had engaged in similar misconduct. Nor could he sustain his claim that the college dismissed him in retaliation for complaining about sex discrimination in the disciplinary process, because he disciplinary process that led to his dismissal commenced before his complaint was filed.  Gudgel v. Del Mar College, 2018 WL 472829 (S.D. Tex. Jan. 17, 2018).

In the second case, a male student was expelled from Rider University in  New Jersey after a female student alleged that they had a sexual encounter while she was too intoxicated to consent. He alleged that that the Dean of Students and others involved in the disciplinary process were biased against   him. However, this did not amount to an allegation that the university discriminated against him because of sex, the court reasoned, since at most he could demonstrate only bias in favor of complainants over respondents. Nor did he successfully allege that the university disciplined men more harshly than women for the same conduct. Though the plaintiff complained that his male friend was more intoxicated than another female student when they had a sexual encounter in the same room, he did not allege that the male student sought to file a complaint about her conduct and was prevented from doing so.

However, the court ruled that even though the university's alleged bias did not violate Title IX, it could, if proven, sustain a claim for breach of contract and the related covenant of good faith and fair dealing. The university's sexual misconduct policy, which operates as a contract between the university and its students, promises an impartial investigation. The plaintiff alleged this promise was breached because the investigator ignored inconsistencies in the complainant's statements. Additionally, he alleged that the university did not adhere to its policy of providing an impartial tribunal to adjudicate his case because its members all reported to the Dean of Students, whom plaintiff had alleged had made up his mind against him. As a result of the ruling, the plaintiff has the opportunity to take discovery and gather evidence in support of these allegations. If at the end of discovery the court finds that evidence insufficient to support the claims, it could potentially dismiss them on a motion for summary rather than allow them to proceed to trial. A settlement, of course, is always a possibility as well. For recent examples of settlements in cases like these, see here (Notre Dame) and here (Yale).  Doe v. Rider University, 2018 WL 466225 (D.N.J. Jan. 17, 2018).

Sunday, January 21, 2018

Larry Nassar, rape culture, and blogging in 2018

This post is going to be a little more personal than others--or perhaps more accurately it will acknowledge the personal aspects of doing this blog and work; something I have been thinking about for a few months.

This past week the case of former USA Gymnastics doctor Larry Nassar dominated sports and non-sports news. We have not covered this case, in part, because it initially was outside our purview given the focus on Nassar's role as a doctor for a national governing body, USA Gymnastics. Most of the coverage this week has continued that focus, but there have also been mentions of the role of Michigan State University in allowing the abuse to continue as they ignored complaints about Nassar that began in the early 1990s. Journalists and activists, including some of our colleagues, have done and continue to do an excellent job covering all the aspects of this case. *

In terms of MSU's role, I see this as a pivotal moment in how seriously we as a culture and intercollegiate sport as an institution are going to take the sexual abuse of young women. This situation is not entirely dissimilar to what happened at Penn State but to date I have not heard the Nassar case discussed in the same way despite the fact that the abuse was ongoing, systemic, occurred in campus facilities, and was made known to people who could have stopped it. (See the column by Jessica Luther linked below as the one exception I found as I was editing this post.) Is the NCAA going to step in? Are administrators going to be fired? This is abuse and cover-up on a massive scale; I will not say it is "worse" than Penn State (playing that game helps no one) but certainly farther-reaching because of Nassar's role with USA Gymnastics. Who will be held responsible and in what ways? This case should not be over when sentencing ends. (A link I posted below addresses some of these issues.)

My own attention to the case has been admittedly a little distant. I have been following it but not closely. I have mentioned it in my classes but not assigned readings or had in-depth discussions. That is likely to change this semester, but I am still working out the details. I saw snippets of the hearings in the gym, channel surfing, and on videos FB friends have posted. I finally, last night, sat down to watch all of Aly Raisman's statement to the court.

This is all to say that these stories--the flood of stories--have created so many different responses and reactions; the range of which I will not attempt to articulate here but certainly include empowerment and awareness. My own responses have varied, and I am speaking of over the years not just the last few months. We have been writing about sexual assault for years now. There are cases to which I have become very invested for one reason or another. Stories which have stuck with me. Injustices--so many injustices--which anger, and frustrate, and sadden me. These feelings remain even after I hit the publish button.

They are with me when I go to the liquor store and see young college men filling carts with pails of margarita mix, boxes of pink wine, and handles of liquor. I wonder and worry what is going to happen that night just up the hill from where I live. They are with me when I look at my students, whose lives are so very different than mine. I wonder what they have been through, what negotiations they engage in every weekend. In the former situation I feel mostly helpless. In the latter, I make sure everyone knows whether because of a sticker on my door or my words in class, that I am there. Unfortunately being there usually means being there after the fact.

Sexual assault is not new and the activism to address and prevent it is not either, which likely means that the frustration and weariness is also not new. While I am not one for catchphrases, the concept of persistence is certainly at the forefront of my thinking these days. I also realize that it is not something everyone is capable of and certainly not all the time. And I am grateful for everyone who is writing and protesting and testifying and doing this work.

I am saying this now and here not to detract from the Nassar case; I believe it is all related. Rather I am using it to explain in part why I blog and what my intentions are going forward. In the past year plus, the blogging has not been so prolific and while there are a number of reasons for this, one is that these posts are more difficult to write.

I am not going to share the entire Title IX Blog origin story, but when we started this in 2006 (!!) it all felt easier--and simpler. Teams getting cut, facilities, game times, practice schedules that all favored men's teams--these things were clear cut. Even my cultural contextualization of the inequities was not especially difficult. As we saw more and more retaliation cases and former female coaches suing their institutions, things got slightly more complicated but more so because of the evidence available, not the law.

How the law is being interpreted is changing. This makes things more difficult. Also, cases are more complicated which makes trying to interpret and then write about them difficult; and this takes time because I aim to do more than just report the facts as they have been presented in other media sources.

I will continue to write about the "easy" things, but my focus for 2018 is to engage thoughtfully and critically with the harder things, primarily college sexual assault and the intersections with athletics, and the protection of transgender students. These issues are personal for me. While I am an educator and scholar (things perceived as professional though also personal for me), I am also a queer woman who knows many survivors and who loves people who cannot always use bathrooms and other spaces safely.

I applaud Nassar's victims who have been able to achieve a feeling of empowerment, and I feel for and sympathize with others who are not there and may never be and hope they know that everyone's process is different and valid.

Finally, I want to extend this virtual thank you to all the activists, scholars, lawyers, administrators, and others who are doing work on Title IX, gender and sexual orientation discrimination, and sexual assault. While at times it may not seem necessary for me personally to write another piece about the case that everyone else is talking and writing about, the larger movement and the people who comprise it remind me that every word is important.

* Nancy Hogshead-Makar: How to Stop Sexual Abuse in Sports; law professor, Michael McCann on legal ramifications; Jessica Luther on Sandusky vs Nassar;

Saturday, January 20, 2018

SMU Rowers' Lawsuit Challenges Inequitable Medical Treatment

In a lawsuit filed yesterday, eight current and former members of the women's rowing team at Southern Methodist University allege that the university violated Title IX by giving female athletes less medical attention than their male counterparts. The lawsuit, which also includes a negligence claim, seeks damages related to hip injuries that they suffered as a result.

According to the press, the plaintiffs allege that athletic department trainers and medical staff failed to diagnose their injuries and treated them inadequately once they had. The injured rowers were also silenced by a culture of "intimidation and shame," they claim. One rower gave an example that she was to injured to row, walk, sit or stand for extended periods of time.  Instead of seeking medical help, her coach asked her if her mattress was too firm. The rowers suffered labral tears in their hips, which they allege is a rare injury in the sport of rowing, but which afflicted up to fifteen SMU rowers. The high incidence rate, they claim, resulted from the improper rowing technique that their coach employed, combined with the lack of medical attention. One rower told the press, "I am almost positive that if there were 15 football players or 15 basketball players that had the same injury by the same coaches in eight years, I do not believe [SMU] would have let that go on." 

Title IX requires athletic departments to not only provide an equitable number of opportunities to male and female athletes, but also to ensure that men's and women's programs receive equal treatment. Title IX regulations itemize a list of factors that comprise the equal treatment analysis, and access to medical treatment is included on this list, along with things like facilities, uniforms, equipment, scheduling, quality of coaching, and others. In this case, the plaintiffs allege, SMU added rowing to balance the numbers, but did not follow that up with the necessary investment of resources needed to ensure equal treatment. 

It's common for judicial and administrative cases involving equal treatment to uncover evidence of inequitable access to medical treatment, but I'm not aware of any other lawsuit seeking damages for specific injuries that resulted from the inequality.

Friday, January 19, 2018

Fraternity Rape Title IX Claim Against Brown Survives Motion to Dismiss

The federal district court in Rhode Island recently denied Brown University's motion to dismiss a Title IX claim in which a female student alleges Brown is liable for damages as a result of the university's response to her having being drugged and raped at a fraternity. According to the plaintiff,  called Jane Doe in the case, one student ("Smith") mixed her drink; later on, another student ("Jones") had sex with her while she was incapacitated. The next morning, Doe received medical treatment at the university health center. At Doe's request, the health center sent out samples of her blood and urine for drug testing at the local hospital, which was how she discovered she had been dosed with the date-rape drug, GHB. The university initiated three disciplinary proceedings: against Jones, Smith, and the university's local chapter of the Phi Kappa Psi fraternity. But when university-retained medical expert concurred with Smith's expert that the hospital's drug testing had been faulty, the university responded by dropping the charges against Smith and the fraternity. (Jones had already been found "not responsible," and Doe's appeal was denied.)

Doe's subsequent lawsuit against Brown included several claims that the district court dismissed in response to a motion by Brown.  But the court retained the Title IX claim and allowed it proceed to the discovery phase of litigation because Doe's allegations, if proven, could be sufficient to convince a jury that Brown is liable under Title IX.  Specifically, Doe alleged that Brown was responsible for the fact that the hospital's drug test was later undermined because university officials continued to send the blood and urine samples "to a laboratory incapable of conducting definitive tests for date-rape drugs – despite Brown's knowledge that other female students reported being drugged at campus events." This allegedly allowed Brown to frame the decision to drop the case against Smith as a matter of insufficient evidence, and hide the fact that it was actually doing it as a favor for Smith's father, a university trustee.  Doe alleges that Brown's actions exonerating the fraternity and the two students led to harassment from other students, including a leaflet campaign by the fraternity, that the university did not address.  

Universities often succeed at dismissing Title IX claims like this one because the standard that plaintiffs must satisfy -- that the university's response amounted to deliberate indifference -- is a difficult one to meet, particularly when the university engaged in some kind of disciplinary response. I think the plaintiff succeeded here in getting over that preliminary hurdle because cover ups like the one she alleged here in favor of the trustee's son, are easy to see as "deliberate."  It will be interesting to see if the parties continue to litigate or whether they settle now that plaintiff has the opportunity to amass evidence in support of the allegations she has made.

Decision: Doe v. Brown University, 2018 WL 443504 (Jan. 16, 2018).
Alpha Chapter distributed leaflets to the University community that disclosed confidential information regarding Doe's allegations

Alpha Chapter distributed leaflets to the University community that disclosed confidential information regarding Doe's allegations

Without this evidence, according to Doe, Brown had an easier time convincing the campus community and general public that its reason for discontinuing its disciplinary process concerning Smith was a lack of evidence, and not in furtherance of a secret design to drop the case as a favor to Smith's father, a University trustee – a decision that was at least curious given that Brown officials had found in the proceedings against Alpha Chapter that Smith had spiked Doe's drink.


Wednesday, January 17, 2018

Title IX Prompts SIU to Add Women's Soccer

Recently Southern Illinois University announced that it would add a women's soccer team in order to resolve questions about its Title IX compliance. Last year, the university's cost-cutting move to eliminate its men's and women's tennis teams along with several scholarships in men's swimming, prompted the filing of a Title IX complaint with the Department of Education's Office for Civil Rights. Cutting viable women's teams, even when a men's team is cut simultaneously, often violates Title IX because the school can no longer claim that is continuing to expand opportunities for the underrepresented sex (the second of the three-part test), or that is fully and effectively satisfying the interests of the underrepresented sex (the third of the three-part test).  A school that cannot comply with either of those tests must therefore show compliance with the proportionality standard (the first part of the three-part test), or risk enforcement action by the OCR. Most schools offer disproportionately higher percentage of opportunities to male than female students, and therefore have difficulty meeting this test. Indeed, publically available data about SIU's participation and enrollment suggests it does not satisfy the proportionality standard, since women constitute 46% of the student body but receive only 39.6% of the athletic opportunities.

This disparity existed before the tennis cuts as well, but at least then SIU could more plausibly claim that women's interests were fully satisfied, and thus that it demonstrated compliance under part three. Now, there is clearly an unmet interest in tennis, which some might suppose should be remedied by restoring the women's tennis team. But a university can decide which part of three-part test it demonstrates compliance -- any one of them will satisfy OCR. So adding women's soccer is a viable compliance strategy if in the end the percentage of female athletic opportunities rises to to 46%. In this spirit, SIU has pledged to OCR that it will add a women's soccer team that will have its inaugural season in 2019-20. 

Yet, adding soccer alone probably isn't going to be enough to bring the university into compliance. Even if the roster provided 30 opportunities, which is probably too many, that would only raise women's share of athletic opportunities to 43%.  This explains why the university has also committed to expanding opportunities on its existing teams, "to the maximum extent feasible... while still ensuring meaningful intercollegiate athletic opportunities are being provided for all team members." Done right, this will mean investing more resources to ensure the existing level of quality offered by current programs are not diluted as more players are added. If the university is seen to be padding its rosters on women's teams, it runs the risk of not being able to count those surplus opportunities in its proportionality calculation. The reporting requirements the university has agreed to will help OCR oversee this and the other aspects of the compliance agreement.

Saturday, January 13, 2018

Court Rejects Parents' Arguments That Privacy Requires Transgender Students' Exclusion from Bathrooms

Township High School District Number 211 in Palatine, Illinois, is again in the news for recent developments in its legal struggle over transgender-inclusive locker rooms and bathrooms. In 2015, the Department of Education found that the school district's policy of excluding a transgender girl from the girls' locker room violated Title IX, a precedent-setting decision at the time. In response, the school district had to enter into a resolution agreement that permitted the student's access to the locker room.

Subsequently, the school district came under fire again, this time, in the form of a lawsuit filed by an association called "Students and Parents for Privacy." The association sued the district, arguing that its agreement to permit a transgender girl to use the girls' locker room violated cisgender-female students' constitutional right to privacy and constituted sex discrimination against them, in violation of Title IX. The association also moved for a preliminary injunction that would require the school to bar transgender students from gender-appropriate facilities while the litigation was pending. After a magistrate judge recommended that the district court deny this motion, the association tried to get the district court to reject the magistrate's recommendation, but last week the district court decided that it to would deny the association's preliminary injunction.  

In particular, the district court rejected the association's argument that the magistrate's opinion conflicted with old case law in the Seventh Circuit (a jurisdiction that includes Illinois) that narrowly construes the meaning of sex in cases applying the sex-discrimination provisions in Title VII to transgender plaintiffs. The district court points out that very recent Seventh Circuit decisions (that we have blogged about here and here) make clear that the appellate court no longer embraces the same narrow view. Instead, the district court is bound to follow the appellate court's updated position that "federal protections against sex discrimination are substantially broader than based on only on genitalia and chromosomes."

Moreover, the court reasoned, the association is not entitled to a preliminary injunction because they will suffer no irreparable harm by the fact that the high school will continue to operate under a policy that permits transgender students to use facilities according to their gender identity. Any student who fears their privacy would be impaired by encountering a transgender student in the bathroom or locker room simply has to access existing and available single-user facilities. That these facilities might be more remotely located did not constitute serious irreparable harm in the court's view.

Wednesday, January 10, 2018

School District Settles Transgender Bathroom Case for $800,000

The school board in Kenosha, Wisconsin, voted to settle its litigation with its former student, Ash Whitaker, who sued the school after it refused to permit his access to the boys' locker room and restrooms because he is a transgender male. Whitaker successfully obtained a preliminary injunction that granted the facilities access he was seeking while his litigation was pending; the decision of the district court in favor on this matter was affirmed by the Seventh Circuit Court of Appeals in one of the most important decisions to date on the rights of transgender students under Title IX and the 14th Amendment's Equal Protection Clause.

Soon thereafter, however, Whitaker graduated from high school and the focus of the case changed from what the school was required to do for him going forward to whether the school was liable for damages because of the discrimination that had already occurred. This aspect of the litigation will now end as well as a result of the $800,000 settlement voted on by the school board this week. $650,000 of that amount will reportedly cover Whitaker's attorneys' fees and costs. School officials told the press that the settlement was not an admission of liability for discrimination but a strategy to avoid the costs of ongoing litigation. Whitaker told the press he was happy to have the litigation behind him so that he could focus on being a college student.