Sexual Harassment Roundup

Schools prevailed in three recent Title IX cases involving sexual harassment:

• A federal court in Pennsylvania refused to enjoin a university disciplinary proceeding allegedly filed in retaliation against a victim of sexual assault for reporting her abuser to authorities. The court recognized that the plaintiff "raises serious concerns about the protections afforded to victims of sexual assault" in that the hearing will require her to confront the person she has accused of sexual assault within one month of the alleged incident and to respond to his charges that her accusations are false. However, the court determined that the hearing itself does not amount to harassment or discrimination against the plaintiff, in part because it will be conducted by a chairperson who can ensure that all questions remain relevant and appropriate, and that the perpetrator of the alleged assault does not have the chance to directly question the victim. Sefanowtcz v. Bucknell Univ., 2010 WL 3938243 (M.D. Pa. Oct. 5, 2010).

• An elementary school's response was sufficient to preclude Title IX liability for a sexual incident between kindergartners, a federal magistrate has ruled. School officials discovered that one boy touched another's genitals while alone together in the bathroom. The principal then discussed the incident with both boys and their parents, and required oversight to ensure that the boys would not use the bathroom at the same time. These efforts did not prevent a second sexually-suggestive incident between the boys in the bathroom, but they nevertheless could not be characterized as "deliberate indifference." There was no evidence other than the first incident that would have suggested that the perpetrating student would continue to harass the victim, so the district's decision to address this issue with a monitoring requirement. Nor does the fact that the boys somehow managed to evade the bathroom monitor charged to keep them separated render the school's response indifferent one. Brooks v. City of Philadelphia, 2010 WL 392835 (E.D. Pa. Oct. 5, 2010).

• The Eight Circuit recently granted a school district's motion for summary judgment on a plaintiff's Title IX and constitutional claims stemming from the sexual misconduct of a basketball coach at Delight High School in Delight, Arkansas. The plaintiff's parents sued the school district and various officials after learning that the coach, Chad Smith, was having a sexual relationship with their daughter, a player on the team. On appeal from a decision denying the motion, the appellate court determined that the facts alleged failed to satisfy Title IX's requirement that school district officials have actual notice of sexual abuse or harassment and responded with deliberate indifference. Specifically, the court rejected that prior claims of inappropriate text messaging by Smith produced such notice. District officials had investigated and addressed these messages, and with regards to the only message with sexually suggestive content, determined that it not been sent by the coach at all. The principal also followed up on a rumor that the plaintiff's daughter was skipping class to spend time with Smith, but found no evidence to corroborate this claim. Moreover, other claims of misconduct by the coach (threatening players and directing them in an act of poor sportsmanship) -- though resulting in the district's decision not to renew his contract -- failed to provide adequate notice that he was sleeping with a player. Doe v. Flaherty, 2010 WL 4068748 (8th Cir. Oct. 19, 2010).
  

The Benefits of Benefactors

ESPN.com reports that Bucknell's wrestling team is having a terrific year considering their roster is made up entirely of freshmen. Why? Because Bucknell only this year brought back wrestling to varsity status after making it a club sport in 2002 because of the need to make their athletic opportunities more proportional.
One rarely hears of a sport being brought back (without legal intervention). In fact I have never heard of it. So what happened? Was there a significant drop in the number of women in the undergraduate population? Did the athletic department add too many women's opportunities and have to compensate by bringing back wrestling?
Nope--an alum of the school and the wrestling team came through with some big dollars (around 5 million) and created an endowment to reinstate and keep wrestling at Bucknell alive. (It's quite an incentive to encourage academic excellence among student-athletes too. This guy isn't a professional athlete--he's a businessman. I guess we don't know how much he "earned" himself versus how much was inherited.)
Though ESPN did a decent job describing Title IX mandates, they too fell into the habit of making wrestling some kind of Title IX martyr. This was enforced by a quote from a Bucknell wrestler:
"Just from what I've seen and what I know, wrestling seems to be the biggest target when it comes to Title IX," said Bucknell 197-pounder Eric Lapotsky.
If you're a wrestler what you see and what you know if probably pretty biased toward a Title-IX-hurts-wrestling viewpoint. But, as Ebuz reported here in her review of Andrew Zimbalist's book, wrestling numbers actually dropped off in the 80s and early 90s when Title IX was rarely, if at all, enforced.
What remains a little unclear is how all the numbers work out. Re-instating the wrestling team, even if the money is there, does not solve the problem of opportunities--measured in actual spots on teams--not dollars.
The article makes the donor appear to be so magnanimous as to designate part of his donation to women's sports. But my guess is that when the author writes that "[p]art of the gift established a component of the women's rowing team..." that what that really means is that the money went to increasing the number of women on the crew team by, hmm...maybe ten (the number of men on the wrestling team). Increasing the number of spots on an existing team is much cheaper than establishing a new team that needs coaches, trainers, equipment, recruiting dollars, etc.
The whole thing is an interesting "solution" but of course not widely applicable unless all schools in Title IX trouble have wealthy donors willing to endow a threatened men's team and give money to the women's athletic program.