Wednesday, May 29, 2019

Supreme Court Won't Hear Challenging to School's Transgender-Inclusive Bathroom Policy

Yesterday the Supreme Court denied a petition for certiorari that, had it been granted, would have led the Court to review a Third Circuit appellate court ruling that upheld a Pennsylvania school district's policy of allowing transgender students to use restrooms and lockers in an inclusive manner, consistent with their gender identities. Students and parents who disagree with the policy had challenged it as a violation of the students' constitutional right to privacy, as well as under Title IX. By denying the petition, the Court ensures that the appellate ruling in the school's favor will stand.

This is good news for transgender students because it means there is no chance, in the near future anyway, that the Supreme Court will undermine this and other lower court rulings that uphold schools' inclusive bathroom and restroom policies. For now, while school districts will likely continue to face similar challenges, appellate courts will be free to construe the Constitution's due process clause, as well as Title IX, in support of the same conclusion as was reached by the Third Circuit, that neither source of law creates a right that is violated when schools adopt a gender-inclusive bathroom/locker room policy. Specifically, the Third Circuit agreed with the lower court that the student-plaintiff's privacy rights were not violated by sharing facilities with transgender students, and even if they were, "the state had a compelling interest in not discriminating against transgender students" to which the district's policy was narrowly tailored. The appellate court also endorsed the lower court's conclusions that the policy did not violate Title IX claim because (1) it applied equally to all students regardless of their sex and gender identity (2) "the mere presence of a transgender student in a locker room should not be objectively offensive to a reasonable person given the safeguards of the school’s policy."

Yet this good news accompanies concern arising from the Supreme Court's granting of cert last month in a Title VII employment discrimination case that will give the Court the opportunity to settle whether the law protects transgender employees from discrimination, either on the rationale that discriminating against someone's transgender status is a form of sex discrimination (since such discrimination targets someone because their sex and their gender are not aligned) or on the rationale that sex discrimination includes discriminating against someone whose gender identity and expression does not conform to stereotypes associated with that person's sex.  Since both of these theories have been used to support the rights of transgender students under Title IX to access bathrooms and locker rooms according to their gender identities, a negative outcome in the Title VII case could put Title IX cases in jeopardy (though Equal Protection claims, which have also been found to support transgender students' rights, would not be as directly affected.)  In other words, what the Court may be signaling by granting cert in case asserting transgender person's civil rights but denying it in a case challenging the accommodation of a transgender person's civil rights is that inclusive policies like the school district's here are legal, but not required. We will just have to see what the Court does next Term.

Doe by through Doe v. Boyertown Area Sch. Dist., 897 F.3d 518, 525 (3d Cir. 2018), cert. denied, No. 18-658, 2019 WL 2257330 (U.S. May 28, 2019)

Sunday, May 26, 2019

Baylor update

I won't bury the lede here: Art Briles has a coaching job.

Though to be fair he actually is already coaching. He has a job in Italy as head coach of Florence’s Italian Football League team. (I am pretty sure they mean American football and not soccer. It must get very confusing when he tells any non-American what he does and where he is doing it.)

I am not sure what the Italian Football League is, who plays in it, what level of football it is. I am not sure how or when he got this job. I am not sure how much it all matters because Briles is coming back to the US--back to Texas in fact, where he will coach high school football.

High school football.

In Texas.

Art Briles.

The Mt Vernon school board unanimously approved him. They must think it is a coup. Or that enough time has passed. I don't know. I am still in shock that people (as in more than one person) thinks it is ok for the man who assisted in the cover-up of sexual assault by his own players should have a job coaching teenagers. [Former Baylor quarterback Robert Griffin III is supporting Briles's "second chance."] Some will say this is the start of his climb back up the ladder. I will ask: why wasn't that ladder burned down?

[EDIT: I see that I missed this article from March about the job in Italy. There are two former Baylor players on that team and they continue to support Briles who continues to say he knew of no criminal activity committed by his players. Briles's comment to the reporter about the Baylor scandal: "Do I think it'll ever go away? Gosh, I hope. Of course, I don't know. I spend a lot of time in the present."]

When Briles had a head coaching job for about two second with a pro team in Canada, someone realized the problem with that and took it away. But that was Canada, and this is Texas. From what my students who watch Friday Night Tykes tell me, Texas football (at least as it is portrayed on this "reality show") is equivalent to child abuse. So there is a "logic" one might argue in Art Briles getting this particular job.

And it might be important to note that Briles has coached high school before; in Stephenville, Texas in the 1990s. One of his players was accused of raping a female student there. The girl's father reported it to Briles who said said he didn't know what the father wanted him to do about it, calling it a "he said/she said" case. Not much seems to have changed. 

In other Baylor news:

Lawyers representing 15 women are trying to get the law firm Pepper Hamilton to release their report on the scandal. Previously, many believed that the board of regents at Baylor drafted a report based on the recommendations made by Pepper Hamilton. But it turns out the law firm wrote a report and summary. Connected to the lack of documentation, plaintiffs lawyers are none too pleased that the school is turning over relevant emails (that's how they found out about the PH report) two years after the initial subpoena for documents.

A new(er) accusation against the school came from an assault in fall 2017--so after Briles left and as Baylor continued to vehemently argue that there was no sexually hostile climate at its school. A female athlete is accusing the school of mishandling her accusation of sexual assault against two football players. The woman's friends had apparently joked with her about not getting raped by football players. [1. Not funny and 2. see above about sexually hostile climate.] In the lawsuit, the plaintiff claims she was victim-shamed by the Title IX office. One of two men was found in violation and expelled from Baylor and the school claims all parties involved in the incident are no longer at Baylor and that they followed the correct procedures in its investigation and sanctioning. So things seem a little unclear, though the main contention, based on what I read, is how the victim was treated by the Title IX office and the information that was shared about her and the incident during the investigation.

Why this matters:
Well of course because: Briles should not be coaching; sexual assault is wrong; systematic cover ups of sexual assault is also wrong; not addressing a sexually hostile climate is illegal.

But the news of Briles's new job came out just as I finished the spring semester during which I taught sports ethics and sport and society. In all my courses we read Sexual Coercion Practices Among Undergraduate Male Recreational Athletes, Intercollegiate Athletes, and Non-Athletes. (I've written about this piece before.)

This semester I had a handful of students write in their margin notes: what about a study of female athletes assaulting men? Or asking why the survey the authors used did not use female athletes and ask them about their history of sexual coercion. In an essay about the ethical issues around sexual violence, a student argued that the punishment for false reporting of rape should be the same as the punishment for rape and that the issue of false reporting against athletes was practically an epidemic. This was a class in which they researched the scandal at Baylor. Briles's seeming redemption is not going to help people take this issue more seriously. There is the perception that he is being punished (he is--rightly so) and that he is the fall guy (probably also true). The fall guy role is especially damaging in getting people to take this situation (at Baylor and more generally) seriously. The redemption this football coach gets is fueled by the same attitude that let all those players go (largely) unpunished by the school and all those victims suffer.

Thursday, May 09, 2019

No Summary Judgment in Lock Haven University Athletics Case

A federal court in Pennsylvania denied parties' motions for summary judgment in a case challenging gender-based inequities in athletic opportunities at Lock Haven University. The university had announced plans to terminate its women's swim team and demote field hockey to Division II.

The evidence in the case allowed the court to rule as a matter of law that Lock Haven did not satisfy either of the first two parts of the three-part test for effective accommodation. Though "only" 3.36 percentage points separated the percent of athletic opportunities for female students (52.18%) and the percent of female students in the student body (55.54%) , the court acknowledged this translates to 36 athletic opportunities, a number not too small to support a new varsity team. Nor did evidence show a history of continuing practice for adding opportunities in women's sports, since Lock Haven both added and ended women's teams in the past and also denied requests from club teams for elevation to varsity status.

But the court could not decide as a matter of law, without the benefit of trial, whether Lock Haven satisfied part three. It has not yet in fact terminated the swim team, so it has not created the situation that would automatically render it out of compliance with the satisfied interests test. That left the court to consider conflicting evidence: on the one hand repeated requests from the women's club rugby team requesting elevation to varsity status, and on the other hand, survey data suggesting female students' interests in additional athletic opportunities is low. So the court withheld summary judgment on this issue and deferred it to trial.  It also saved for trial the question of whether demoting the field hockey team to Division II would violate Title IX, since it hasn't happened yet and Lock Haven claims to have withdrawn that idea from consideration. The plaintiffs' equal treatment claims also raised too many issues of disputed fact to warrant summary judgment for either side.

Last, the court addressed whether this case could proceed as a class action purporting to represent "all present, prospective, and future University female students who participate, seek to participate, or have been deterred or prevented from participating in or obtaining the benefits of intercollegiate athletics at Lock Haven University." Class certification is helpful to plaintiffs especially in Title IX cases because it keeps the case from becoming moot when the current student-plaintiffs graduate.  Here, the court rejected class certification of such a broad class, noting that the named plaintiffs, who are members of the swim, field hockey, and club rugby team, are differently situated from each other and from other present and future students with respect to the remedies they would favor. But the court permitted the plaintiffs to request certification of three subclasses, each purporting to represent the present and future potential members of each team. 

Theoretically, then, the next step in this case is for the plaintiffs to repropose their class certification request, and for the court to schedule trial. I admit, though, I'd be highly surprised to see an actual trial in this case. I think a decision to drop swimming would be impossible to defend unless the university first closes the proportionality gap, and it should be clear that it can't elevate a men's team (wrestling) to Division I and offer no similar benefit to any women's team. Moreover, Lock Haven also argues that it is close to complying with proportionality. Given all this, I'd bet the parties would be more likely to settle than to engage in an expensive and time-consuming trial. 

Robb v. Lock Haven Univ. of Pennsylvania, No. 4:17-CV-00964, 2019 WL 2005636 (M.D. Pa. May 7, 2019).