The cost of Title IX and backlash rhetoric

In talking about the repercussions of Title IX, a common statement is that the ultimate price of non-compliance is the revocation of federal funds. Quickly it is noted that this has never happened. No school has ever been punished by the Office of Civil Rights by having their federal funding pulled.

Perhaps this is obvious--but there are other costs to non-compliance. The fact that federal funding has not been revoked does not mean that schools do not pay for their mistakes and ignorance--willful or not.  This is an important reminder as we continue to exist in a time of uncertainty in regards to the enforcement of the law and continues on our theme of recent weeks: head to the courts.

We have, over the years, discussed the many settlements and jury verdicts that have cost schools hundreds of thousands, if not millions, of dollars. These are cases that have addressed retaliation against female coaches and administrators along with advocates of women's sports, as well as discrimination against transgender students. There are too many cases to link to here but examples have come from University of Iowa, Fresno State, Florida Gulf Coast, and several high schools that have been found to have discriminated against transgender students.

This post focuses on the costs schools incur when they choose to fight Title IX cases in court. How to proceed with legal action is always a literal cost-benefit analysis. I have been seeing more media attention being paid to these costs. The impetus for this post was an article about the pending case against Kent State University in Ohio: Kent State Budgeting over $600,000 for Kesterson Title IX Lawsuit. And then there was one about Iowa State which has "spent more then $120,000 on three Title IX lawsuits." Baylor, still in the midst of its sexual assault scandal has settled one case, but continues to fight in court the others it is facing.

Last week it asked a court to throw out a lawsuit from one of 17 plaintiffs suing the school. How much Baylor has spent in court thus far is not information I could find, but it must be considerable given the number of cases. It remains to be seen how hard they intend to fight each of the five other lawsuits involving the rest of the plaintiffs and how much money they will devote to what appear at this point to be losing battles--if not in court, then certainly in the realm of public relations.

The Kent State case, which I wrote about initially in 2016 and involves the alleged cover-up of an assault by a coach who is also the alleged perpetrator's mother, is currently in the discovery stage. The $600,000 figure cited in the headline is based on the total budgeted thus far since the lawsuit began.

We have not written abut Iowa State where only two of the three cases mentioned in the headline are still pending. (A judge dismissed one last week.) But one case is from a student  who was raped in a fraternity and who is accusing the university of deliberate indifference because administrators knew about the prevalence of sexual assault within the Greek system. The second is a lawsuit brought by the former Title IX coordinator who says the university prevented her from doing her job effectively and also engaged in patterns of racial discrimination putting women of color, like herself, in visible positions of leadership but not actually listening to them. I am especially interested in the latter case and how the intersectional discrimination this former employee faced will be discussed and considered by the court should it get that far.

Returning to the original topic though regarding money schools spend on lawsuits: costs matter because we should be paying attention to how much money schools are spending on lawsuits, especially schools--like Baylor--which have obvious patterns of violations and indifference and denial. But these public reports and interest about where the money is coming from and just how much of it is being spent can also have a deleterious effect.

They can contribute to the backlash against enforcement of the law, especially in a moment where how sexual assault on campus should be handled and how it will be addressed going forward is a very large uncertainty. We have already seen considerable backlash from a vocal group of accused men that has disproportionately taken up the public discussion of campus sexual assault. I worry that the "how much is school X spending" could have similar effects, especially when the school is public and thus taxpayers are implicitly called to action with these headlines and reports.

What differs is that schools have to address a lawsuit whether by fighting it or settling. But public opinion matters and it matters a lot when Title IX enforcement is in its current precarious situation.