Winning and failing at the same time

 A community college in Oregon must pay a former student over a million dollars after a jury decided the school was in breach of contract. 

The student who brought the lawsuit was a nursing major who had previously done sex work in the adult film industry. Some of her instructors found out and felt that her past profession meant she could not possibly be a good nurse. She experienced disparate treatment, including lowering of her grades after the fact. 

She brought two claims: breach of contract because the school did not provide her the education she paid for and a Title IX discrimination claim. They dismissed the latter. 

I found this fairly surprising. The stereotype of female sex workers clearly was a factor in how the instructions treated her. The idea that a woman cannot be a professional sex worker and a professional in a "reputable" profession like nursing is based on beliefs about women and sex. One instructor said to her: "It takes a classy woman to be a nurse, and unclassy women shouldn't be nurses." 

I find the plaintiff's response to the situation one also indicates the presence of sex-based discrimination much more so than breach of contract: "there are no words to say how much gratitude I have for the jury and their decision, but I'll never get over how much it took just to get a little bit of accountability." 

The school clearly did not meet its obligations because members of the institution were engaging in discrimination. They were gatekeeping based on ideas about proper womanhood as embodied by a female nurse. The plaintiff, after she disclosed her past work to a fellow student (who seems to have not kept a secret), found herself being penalized by instructors in ways her peers were not. Some instructors told her it was part of their academic freedom to lower her grade. She was dismissed from the nursing program in the summer of 2018 after one of her passing grades was changed to an F one month after semester's end. 

Additionally, the plaintiff went to the Title IX office and they never registered or investigated her complaint. 

I understand why there will not be a pressing of the issue regarding the dismissal of the Title IX complaint. The jury award was large, the student has moved on and is in law school now and hope to continue to advocate for sex workers and former sex workers. 

Reading the rest of the article though about other sex workers in academia and their treatment demonstrates that this form of discrimination has been deemed acceptable, is rarely challenged, and is based on norms of propriety that are gender-based. 

This is not going away. Sex work is easier to engage in because of the many forms that exist; more people are moving in and out of it; it can be lucrative; and college is expensive. Campuses--especially Title IX offices--need to be prepared for students who engage in sex work and how to protect them from backlash and other forms of violence and aggression. 

Pass the professor is a problem

 I have written previously about the practice of passing from one school to another athletes who have been accused of or found responsible for sexual violence. That is bad, and I am sure still happens, but at least some schools and athletic conferences have taken notice and created policies about not accepting these athletes. Does this actually happen? I don't know. I hope someone starts collecting some data/investigating. <-- virtual prodding of my sport soc colleagues 

Passing bad coaches around is also a problem though even less is known about how often this happens.  I have a forthcoming post about a  predatory University of Toledo coach who was passed to another team where he continued to engage in abuse of his players. One issue with determining frequency of this action is that coaches are employees and so this becomes a personnel issue and subject to a high level of scrutiny. The same is true of professors. 

Today's post is about how professors who commit Title IX violations move from institution to institution. It is inspired by a VICE piece from fall 2021 which I only recently came across but also because the issue has arisen in my professional life, and I could not get a clear answer on how to prevent the practice. 

It appears there is not one. 

The issue of sexual assault and harassment of undergraduate and graduate students has a long history. There is literally a book from the 80s called The Lecherous Professor (I found an old copy--first edition-- at a dusty used bookstore in Northampton, MA but have yet to dig into it. I am sure when I get to it I will be being deeply demoralized by how little has changed). 

In 1977, an undergraduate sued Yale University arguing that a professor's sexual harassment of students was a form of sex discrimination and that the institution was responsible for both attempting to mitigate this harassment and having a mechanism in place for addressing it. (This case is discussed by the amazing Dr. Libby Sharrow in the ESPN 4-part series 37 Words about the history of Title IX.) 

Though the plaintiffs did not win the case on its legal merits (Yale did institute a system for reporting sexual harassment, though), it set off a discussion of whether sexual harassment is a form of sex discrimination. 

Today we recognize it as such and so when it occurs in an educational institution, Title IX applies. But as long as this history of professors harassing and assaulting students is and as devastating the results, there does not seem to be a clear way to prevent it despite the legal recognition as discrimination. 

I dug around when a colleague was in the midst of a job search for a high-ranking position at a school well-regarded in their field.  One of the other candidates was a professor known to have been investigated multiple times for Title IX violations. This person made it to the on-campus interview stage and was favored by some who had decision-making power. Again, this person's history with Title IX complaints is well-known. But it could not be officially considered or brought up because Title IX complaints are a personnel issue and, as most personnel issues, nothing could be revealed about them; not the circumstances nor the findings of the investigations.  

This was the case for biology professor, Daniel Howard, at Augustana University who had a sexual and romantic relationship with one of his students/advisees (there were rumors of additional relationships). An investigation began after an anonymous report. He subsequently convinced the student, by her own account, to transfer schools to evade investigators while he followed his wife to the University of New Hampshire where he also got a position in the biology department. Even after the student victim spoke with the TIX coordinator at Augustana after realizing what had really happened to her AND contacting the TIX office at UNH, she got nowhere. Augustana said the case had been resolved, but that they could not reveal the outcome. I found this strange given that she was the victim and victims learn of the outcomes. But perhaps they thought the whole thing was moot given that both she and Howard had already left Augustana. 

Everything on the UNH end seems very sketchy (<--not a legal term) including the statement to VICE that the person who took the calls from multiple people about Dr. Howard no longer is with the office. There was no information about what Howard's new school did or did not know or what they did once they did know. When the story gained media attention Howard's name disappeared from the biology department's website and it appears that both he and his wife have left UNH. My cursory googling did not reveal his current institution. The VICE article (again a year old) reported that the student who has remained in the field still sees him and his wife and academic meetings. 

Having served on search committees, I know that HR does the background checks and they will rule out people and not reveal why. The candidate disappears from the queue (depending on what platform is being used). But Title IX complaints don't show up in background checks because they are not criminal offenses. Recommenders could possibly mention it in their letters but even if HR deemed it acceptable to consider that information (a big question) would a letter writer even do that? 

There are so many rules around search committees (which I understand) and about personnel information (same). But there needs to be some kind of balance between information that can maintain the safety of an institutional community and privacy. Title IX processes are so uneven across schools, how would a future employer even assess a finding of responsibility or of no responsibility? 

In short, there is a gap--a very large gap--in Title IX enforcement when employees with histories of violations cannot be identified and thus are passed around higher education. OCR/Department of Education needs to issue guidance on this.