Three female coaches in California recently filed a lawsuit against the State Center Community College District to challenge gender discrimination in pay and job responsibilities that affect them as coaches at colleges operated by the District. One of the plaintiffs, Rhonda Williams, is head coach of the Fresno City College women's softball team and assistant coach of its golf team, while two others, Kathleen Kuball and Shannon Jeffries, coach at Reedley College in softball and volleyball respectively. They allege that while they have comparable or even more job responsibilities than their male counterparts, they are paid less because the District calculates compensation based on the number of "duty days" each coach is assigned and then assigning female coaches fewer duty days. They allege that this practice is a part of an overall pattern of discrimination against the women's sports programs in the District. The complaint alleges that this discrimination affects female athletes as well, and that it constitutes a violation of Title IX as well as state law.
These coaches join a growing list of others who have used Title IX and other related law (state law, Equal Pay Act, Title VII) to challenge discriminatory conditions in their employment. In fact, it was other coaches from Fresno -- at nearby Fresno State -- whose famously successful lawsuits in 2006-2007 kicked off what appears to the current trend of coaches going to court to fight for equality. Today, sex discrimination lawsuits filed by coaches are more common than those filed by athletes (probably because coaches incur more economic damages and hold their jobs for longer than students are athletes). Often, however, these lawsuits expose discriminatory practices that affect athletes and can lead to systemic change.
Showing posts with label California. Show all posts
Showing posts with label California. Show all posts
Thursday, February 01, 2018
Sunday, October 29, 2017
Title IX and the Straw Man
Erin and I both talked to a New York Times reporter last week about whether and how California's new legislation allowing for a gender neutral designation on state IDs would intersect with Title IX regulations. (More on that below.)
My immediate thought, upon hearing that the California Family Council (CFC) was using Title IX as a reason for why the legislation was not a good idea (as their leader stated in a July editorial), was that Title IX is being used again as a distraction, a scapegoat, a tool of division. CFC's president Jonathan Keller was employing the straw man fallacy when he wrote that:"The new “nonbinary”* gender created by this bill would likely be subject to the federal Title IX statute. This means California’s nearly 150 public colleges and universities, and all 10,453 public schools would be required to provide not only male and female athletic teams and facilities but non-binary ones as well. This would result in a massive new federally mandated expense to the state." We discussed why this was not going to happen.
Erin gave the reporter a number of reasons why CFC's legal argument was specious. For one thing, it assumes that the Department of Education is going to be aggressive in its enforcement of Title IX in general (which it is not) and in particular, that it is aggressive in its enforcement of Title IX as it applies to gender identity diversity and transgender rights (which it has so clearly backed off of). Next, it would require the Department of Education, which enforces federal law, to defer to state law, event though federal law normally preempts conflicting state law. Even then there would be the challenge of reading the Title IX regulations to incorporate new gender categories. Given the use of phrases like "both sexes" and "one sex ...[and] the other sex," realistically the law would not be read to cover a third gender category. Finally, even if Title IX's athletics regulations did incorporate California's nonbinary gender category, schools would of course only be required to at most provide participation opportunities proportionate to the percentage of students who are nonbinary. Because nonbinary students are a really small percentage of the population, even if Title IX applied, the burden on schools would be small. I discussed the existing policies at the K-12 and collegiate level and how gender identity was either honored or it was superseded by hormone use (in the case of NCAA sports). Those arguments were easy and we were happy to explain them. What has arisen for me since the article was posted is how the law is used by people who do not care about it being enforced until it can be levied against a more disliked minority group. It was likely inevitable that the law mandating gender equity in education would be used as a tool of division by those who actually do not want equity. CFC's argument above is just one example. Everyone is harmed when the argument becomes about who deserves protection more. In between the lines of CFC's very calmly worded editorial is the following message: "real" girls and women will suffer because of the demands of a deviant minority group. Resources will be drawn from women's and girls' sports to create teams comprised of nonbinary persons. You want gender equity? Well then you cannot have nonbinary equity without it costing you--the taxpayers of California--a lot of money.
The overt hate, the malicious tone that we have seen aimed at transgender and non-binary people was absent from the editorial. But that does not mean that what CFC said, how they pitted women against non-binary people, was not hateful. As Title IX continues to be weakened, it could be easier for arguments like these to gain traction. Playing the oppression Olympics only benefits people like CFC and their supporters.
* I assume he used quotation marks because he does not think nonbinary is a thing. This was a rhetorical/grammatical mistake on his part. Nonbinary is indeed an adjective used to describe real things. Keller does not think nonbinary gender identity is real. He should put the quotation marks around the phrase nonbinary gender to get his point across.
My immediate thought, upon hearing that the California Family Council (CFC) was using Title IX as a reason for why the legislation was not a good idea (as their leader stated in a July editorial), was that Title IX is being used again as a distraction, a scapegoat, a tool of division. CFC's president Jonathan Keller was employing the straw man fallacy when he wrote that:"The new “nonbinary”* gender created by this bill would likely be subject to the federal Title IX statute. This means California’s nearly 150 public colleges and universities, and all 10,453 public schools would be required to provide not only male and female athletic teams and facilities but non-binary ones as well. This would result in a massive new federally mandated expense to the state." We discussed why this was not going to happen.
Erin gave the reporter a number of reasons why CFC's legal argument was specious. For one thing, it assumes that the Department of Education is going to be aggressive in its enforcement of Title IX in general (which it is not) and in particular, that it is aggressive in its enforcement of Title IX as it applies to gender identity diversity and transgender rights (which it has so clearly backed off of). Next, it would require the Department of Education, which enforces federal law, to defer to state law, event though federal law normally preempts conflicting state law. Even then there would be the challenge of reading the Title IX regulations to incorporate new gender categories. Given the use of phrases like "both sexes" and "one sex ...[and] the other sex," realistically the law would not be read to cover a third gender category. Finally, even if Title IX's athletics regulations did incorporate California's nonbinary gender category, schools would of course only be required to at most provide participation opportunities proportionate to the percentage of students who are nonbinary. Because nonbinary students are a really small percentage of the population, even if Title IX applied, the burden on schools would be small. I discussed the existing policies at the K-12 and collegiate level and how gender identity was either honored or it was superseded by hormone use (in the case of NCAA sports). Those arguments were easy and we were happy to explain them. What has arisen for me since the article was posted is how the law is used by people who do not care about it being enforced until it can be levied against a more disliked minority group. It was likely inevitable that the law mandating gender equity in education would be used as a tool of division by those who actually do not want equity. CFC's argument above is just one example. Everyone is harmed when the argument becomes about who deserves protection more. In between the lines of CFC's very calmly worded editorial is the following message: "real" girls and women will suffer because of the demands of a deviant minority group. Resources will be drawn from women's and girls' sports to create teams comprised of nonbinary persons. You want gender equity? Well then you cannot have nonbinary equity without it costing you--the taxpayers of California--a lot of money.
The overt hate, the malicious tone that we have seen aimed at transgender and non-binary people was absent from the editorial. But that does not mean that what CFC said, how they pitted women against non-binary people, was not hateful. As Title IX continues to be weakened, it could be easier for arguments like these to gain traction. Playing the oppression Olympics only benefits people like CFC and their supporters.
* I assume he used quotation marks because he does not think nonbinary is a thing. This was a rhetorical/grammatical mistake on his part. Nonbinary is indeed an adjective used to describe real things. Keller does not think nonbinary gender identity is real. He should put the quotation marks around the phrase nonbinary gender to get his point across.
Monday, March 27, 2017
OCR Continues to Open and Resolve Investigations into Institutions' Sexual Harassment and Sexual Assault Response
Whether and how the new presidential administration will alter the Department of Education's existing policies interpreting Title IX's application to sexual harassment and sexual assault remains to be seen.So far, however, there has been no discernible change in the agency's enforcement approach. Since the inauguration on January 20, the agency has continued to open new investigations -- a total of 13 according to the Chronicle of Higher Education's Title IX Tracker -- and has concluded several others that began under the prior administration by issuing findings and resolution agreements that are similar to those we've seen in recent years.
Most recently, the Office for Civil Rights announced last week that it resolved Title IX violations by Whittenburg University in Ohio. The agency's investigation had been triggered by two complaints, filed in 2011 and 2013 respectively. In addition to finding flaws with the university's written policies, it also determined that the university violated Title IX requirements in the way that it handled specific students' cases. For instance, it found the university officials told the family of one student who had reported being sexually assaulted that they would suspend the university's disciplinary process if the family pressed criminal charges. They also included information about the student's prior, unrelated sexual history in its investigative report that was distributed to the hearing panel. In another case, the university's investigation was unreasonably delayed and the student who reported having been raped was not offered interim measures such as academic accommodations or counseling. Failure to offer interim measures was also a deficiency in yet another case, one that OCR also criticized for having been insufficiently investigated.
Earlier, on March 9, the agency announced a resolution with Palo Alto Unified School District after finding violations of Title IX's requirement that educational institutions respond promptly and equitably to reports of sexual harassment and sexual violence. In one example, an assistant principal in the district received 25 reports from staff and faculty about sexually harassing behavior by the now-former principal, as well as a report that the principal had engaged in unwelcome physical contact with students. These reports accumulated for three years before the assistant principal finally addressed them with the Title IX coordinator. Though the district investigated and responded at that point, it treated the matter only as a personnel issue and did not investigate with Title IX compliance or obligations in mind. Another time, the school district failed to conduct its own investigation of a student's report of having been sexually assaulted by a fellow student off-campus (though it did assist the student in filing a police report and offered other support). Nor did the district investigate the subsequent sexual harassment that the student reported she was subjected to for having reported the initial assault.
Prior to that, on February 16, the University of Alaska agreed to revisit 23 cases of reported sexual harassment or assault that the university failed to adequately address, according to OCR findings. In some of these cases, the university failed entirely to conduct an investigation, such as a case in which faculty members learned that one of their students had been accused of sexually harassing middle school students at the site of his student teaching placement. Even when the student was arrested for similar misconduct, the university continued its inaction, apparently because no university students had been victims. Other examples of the university's failure to investigate included a case in which a student reported a professor's sexual harassment, and where a student reported being assaulted in a university residential building by a non-student. Besides failing to investigate, unreasonable delay was another frequent problem cited by OCR. On the Fairbanks campus, the average investigation in 2013-14 lasted 122 days and the longest was 567 -- far longer than the 60-day timeframe that should normally occur. At Anchorage, the longest was 403 and average of 97. OCR's investigation also cited cases where the university failed to prevent retaliation, failed to provide the complainant with notice of the outcome, failed to provide complainants with interim measures, and other problems.
All three resolution agreements imposed familiar requirements on the educational institution in question: assessing past reports of sexual harassment and sexual violence to determine whether the institution's response satisfied Title IX requirements; correcting problems where possible; revising policies and procedures to bring them into compliance; and improving training opportunities for relevant staff. Alaska's agreement also included requirements to assess the campus climate, conduct informational sessions with students and otherwise improve the dissemination of information about the process for addressing sexual harassment and sexual assault, improve coordination with local enforcement, and other requirements.
Thursday, October 06, 2016
Throwback Thursday, aka Updates
UCLA settled a lawsuit last month with two graduate students who alleged that administrators discouraged them from filing a formal complaint against a professor who sexually harassed and assaulted them. The settlement includes a financial settlement, part cash as well as a year-long dissertation fellowship to one of the plaintiffs. The situation for the history professor they accused of unwanted sexual advances has been in flux since the women initiated their complaint in 2013. He was suspended without pay for a quarter and resigned his position as director of the Center for Near Eastern Studies. He resumed teaching, but is not teaching this fall. He is scheduled to teach in the spring. He is not allowed to use his history department office during the week. His office hours are being held in a library on campus and he is being required to keep the door open while meeting with students. He is not allowed to have contact with one of the plaintiffs. (It seems the other has graduated.) He has to pay the UCLA Board of Regents $3,000.
The saga at Baylor continues, probably because they keep doing ALL THE WRONG THINGS. Granted they cannot control the behaviors of the people they have fired who continue to talk to the media. Though I am curious as to why Art Briles sat down with ESPN whose reporters have not been kind to the school if the many, many segments on Outside the Lines are any indication. The way Briles and former President Ken Starr have proceeded since their release is an interesting study in voice and silence. Sexual assault is a very silencing experience and only a few of the women who have joined the lawsuit against Baylor have spoken about their experiences. Some have asked to speak personally with Briles who said he has been prevented from doing so under terms of his release (his very lucrative release). So he cannot speak to them but he can speak publicly--about some things--the things he wants to talk about; the things he thinks will rehab his image and get him another coaching job next year.
Starr seems to be trying to help his friend, Briles, on this quest. He said in a room full of reporters in Texas that Briles was "honorable" and "unfairly criticized." He also said, in reference to the sexual assaults (apparently there is no gag order on him) that it was not a problem with the culture of Baylor or Baylor football. He was called out by a reporter who thought it hypocritical that Starr could address a culture of alcohol abuse on his campus but not sexual assault. And still these men get public platforms. The good(ish) news? Well all the talking is not helping public image. I have seen stories from sports journalists warning schools that might in the market for a new football coach to avoid Briles.
And now the Title IX coordinator has resigned. Patty Crawford, at Baylor since late 2014, said she was being prevented from implementing the changes outlined in the Pepper Hamilton report--the one Baylor itself commissioned when news of the sexual assaults became public. Crawford's resignation, her filing of a Title IX complaint with OCR, and her stories about how Baylor continues to violate the law suggest what many of us suspected: that report was a PR move. Who are they going to get to do that job? How are they going to explain themselves when OCR heads to Waco? Oh never mind. They promoted from within--of course:
On Monday, Baylor said it had filled Crawford's post by promoting senior deputy coordinator Kristan Tucker, whom interim president David Garland called "a capable and experienced Title IX professional." (from ESPN article linked above)
It also appears that a Title IX investigator, one of two employees charged with investigating Title IX violations on campus, is no longer at the school. Whether she resigned or was fired is unknown.
On the same day that Crawford resigned, two more women joined the lawsuit against Baylor. That brings the total to eight. Only one of the eight women was raped by an athlete. The culture of sexual assault--that does not exist, according to Starr--is not confined to athletics.
The watered down California bill about LGBT discrimination at private colleges has passed. Governor Jerry Brown signed the bill which requires private schools to publicly post their gender and sexuality policies and to note any Title IX exemptions they receive from the Department of Education. The bill was originally written to prevent these schools from discriminating against LGBT students, but the outcry from religious schools and groups resulted in the compromise bill signed last week.
The saga at Baylor continues, probably because they keep doing ALL THE WRONG THINGS. Granted they cannot control the behaviors of the people they have fired who continue to talk to the media. Though I am curious as to why Art Briles sat down with ESPN whose reporters have not been kind to the school if the many, many segments on Outside the Lines are any indication. The way Briles and former President Ken Starr have proceeded since their release is an interesting study in voice and silence. Sexual assault is a very silencing experience and only a few of the women who have joined the lawsuit against Baylor have spoken about their experiences. Some have asked to speak personally with Briles who said he has been prevented from doing so under terms of his release (his very lucrative release). So he cannot speak to them but he can speak publicly--about some things--the things he wants to talk about; the things he thinks will rehab his image and get him another coaching job next year.
Starr seems to be trying to help his friend, Briles, on this quest. He said in a room full of reporters in Texas that Briles was "honorable" and "unfairly criticized." He also said, in reference to the sexual assaults (apparently there is no gag order on him) that it was not a problem with the culture of Baylor or Baylor football. He was called out by a reporter who thought it hypocritical that Starr could address a culture of alcohol abuse on his campus but not sexual assault. And still these men get public platforms. The good(ish) news? Well all the talking is not helping public image. I have seen stories from sports journalists warning schools that might in the market for a new football coach to avoid Briles.
And now the Title IX coordinator has resigned. Patty Crawford, at Baylor since late 2014, said she was being prevented from implementing the changes outlined in the Pepper Hamilton report--the one Baylor itself commissioned when news of the sexual assaults became public. Crawford's resignation, her filing of a Title IX complaint with OCR, and her stories about how Baylor continues to violate the law suggest what many of us suspected: that report was a PR move. Who are they going to get to do that job? How are they going to explain themselves when OCR heads to Waco? Oh never mind. They promoted from within--of course:
On Monday, Baylor said it had filled Crawford's post by promoting senior deputy coordinator Kristan Tucker, whom interim president David Garland called "a capable and experienced Title IX professional." (from ESPN article linked above)
It also appears that a Title IX investigator, one of two employees charged with investigating Title IX violations on campus, is no longer at the school. Whether she resigned or was fired is unknown.
On the same day that Crawford resigned, two more women joined the lawsuit against Baylor. That brings the total to eight. Only one of the eight women was raped by an athlete. The culture of sexual assault--that does not exist, according to Starr--is not confined to athletics.
The watered down California bill about LGBT discrimination at private colleges has passed. Governor Jerry Brown signed the bill which requires private schools to publicly post their gender and sexuality policies and to note any Title IX exemptions they receive from the Department of Education. The bill was originally written to prevent these schools from discriminating against LGBT students, but the outcry from religious schools and groups resulted in the compromise bill signed last week.
Tuesday, August 02, 2016
CA bill says no exemptions
Just a couple of weeks after Pepperdine University told OCR that it no longer needed its exemption from Title IX, a proposed bill in the California legislature would prevent discrimination against LGBT students (which is what those of us who critique the exemptions argue is happening). To be considered tomorrow (Wednesday), the bill states that any religiously affiliated school that receives money from the state of California may not discriminate against LGBT individuals.
The biggest area affected by this would likely be financial aid in the form of California state scholarships. Though I imagine state bonds for facilities and other such state-assisted projects and research would also put those schools on the hook for compliance--or rather non-discrimination.
In short, no exemptions for religious schools in California if the bill passes. The usual sides emerged when the bill was proposed: religious freedom versus anti-discrimination for LGBT people. If this bill does get passed, there is a potentially interesting conversation about whether Title IX exemptions on religious grounds should have to meet a higher standard.
The biggest area affected by this would likely be financial aid in the form of California state scholarships. Though I imagine state bonds for facilities and other such state-assisted projects and research would also put those schools on the hook for compliance--or rather non-discrimination.
In short, no exemptions for religious schools in California if the bill passes. The usual sides emerged when the bill was proposed: religious freedom versus anti-discrimination for LGBT people. If this bill does get passed, there is a potentially interesting conversation about whether Title IX exemptions on religious grounds should have to meet a higher standard.
Friday, July 31, 2015
LAS-ELC "Fair Play" Video
In the spirit of sharing helpful resources, this new video created by the gender equity team at Legal Aid Society-Employment Law Center is aimed at students and helps them understand Title IX's application to K-12 athletic programs. It also helps them understand their rights under California's Fair Play in Community Sports Act, which applies to municipal athletic programs that are outside the scope of Title IX.
For more on LAS-ELC's "Fair Play" initiative, see here.
For more on LAS-ELC's "Fair Play" initiative, see here.
Monday, December 08, 2014
Bullied cheerleader commits suicide
A tragedy last week in California when a 12-year old boy killed himself after experiencing repeated bullying because of his participation on the cheerleading team.
His parents had gone to the school on multiple occasions to report the bullying and recently took him out of school to begin homeschooling. He was frequently referred to as gay, though friends say he rarely discussed the bullying and kept his feelings to himself.
Given that the school, in Folsom, has acknowledged that the parents did indeed bring the bullying to their attention, there seems to be some admitted culpability. Lawsuit? Not that it would bring back Ronin Shimizu or offer much solace to his family and friends; but it seems that schools are not receiving the message that they need to address and take action when bullying occurs.
His parents had gone to the school on multiple occasions to report the bullying and recently took him out of school to begin homeschooling. He was frequently referred to as gay, though friends say he rarely discussed the bullying and kept his feelings to himself.
Given that the school, in Folsom, has acknowledged that the parents did indeed bring the bullying to their attention, there seems to be some admitted culpability. Lawsuit? Not that it would bring back Ronin Shimizu or offer much solace to his family and friends; but it seems that schools are not receiving the message that they need to address and take action when bullying occurs.
Friday, October 17, 2014
Another California School District Settles Title IX Case Over Harassment and Discrimination of Transgender Student
The Department of Education announced this week that it has entered into a resolution agreement with the Downey Unified School District. The Department had been investigating a complaint filed on behalf of a transgender student who has consistently asserted aspects of her female gender identity since enrolling as a kindergartner in the Downey public schools. The complaint alleged that while she was an elementary student, the student was the subject of discrimination on the basis of gender identity when school officials disciplined her for wearing makeup when other female students were allowed to do so. As part of her punishment, she had to write a letter of apology for making male students uncomfortable. She was also allegedly the victim of
verbal harassment including being called homophobic and sexist slurs by
other students on the bus, to which school officials failed to adequately respond. After she fully transitioned to female during her fifth grade year, school officials refused to use her female name. While some things improved when the student graduated to a middle school that respected the students gender identity, name and pronouns, the student was still subject to peer harassment and the complaint suggested some school-wide measures that were not taken to try foster a more tolerant and inclusive climate. Based on her experiences in elementary school and middle school, the student wanted assurance going forward that high school administrators and faculty will be responsive to harassment, respectful of her gender identity and expression, and willing to treat her just like any other girl.
The resolution agreement addresses the student's concerns for the future by requiring the school district to "continue to treat the student the same as other female students in all respects in the education programs and activities offered by the District, including access to sex-designated facilities for female students." The district is prohibited from disciplining the student from "appearing in a manner that does not confirm to stereotyped notions of masculinity and femininity" and must remove all past such disciplinary notations from the student's records. Additional measures the school district will have to undertake include hiring a consultant to help the school address the climate issues giving rise to harassment, conducting mandatory training for district administrators to ensure they are responding appropriately to gender non-conformance- and gender-based harassment, and reviewing its policies to ensure that transgender students are provided every opportunity to participate in all programs "in a manner that does not discriminate based on sex, gender identity or gender expression."
Like the Arcadia school district resolution, which was similar, this resolution is an important signal of a school district's obligation under Title IX to protect equal rights of transgender student. While the requirements that school districts appropriately respond to gender-non-conformance-based harassment is not a new or groundbreaking application of Title IX, other aspects of the resolution are cutting edge. In particular, the requirement to treat transgender student like any other girl with respect to sex-designated facilities is part of an emerging definition of sex discrimination that enhances Title IX's effectiveness to challenge transgender student's exclusion from the bathrooms, locker room, dormitory, or sports team that comports with their gender identity.
The resolution agreement addresses the student's concerns for the future by requiring the school district to "continue to treat the student the same as other female students in all respects in the education programs and activities offered by the District, including access to sex-designated facilities for female students." The district is prohibited from disciplining the student from "appearing in a manner that does not confirm to stereotyped notions of masculinity and femininity" and must remove all past such disciplinary notations from the student's records. Additional measures the school district will have to undertake include hiring a consultant to help the school address the climate issues giving rise to harassment, conducting mandatory training for district administrators to ensure they are responding appropriately to gender non-conformance- and gender-based harassment, and reviewing its policies to ensure that transgender students are provided every opportunity to participate in all programs "in a manner that does not discriminate based on sex, gender identity or gender expression."
Like the Arcadia school district resolution, which was similar, this resolution is an important signal of a school district's obligation under Title IX to protect equal rights of transgender student. While the requirements that school districts appropriately respond to gender-non-conformance-based harassment is not a new or groundbreaking application of Title IX, other aspects of the resolution are cutting edge. In particular, the requirement to treat transgender student like any other girl with respect to sex-designated facilities is part of an emerging definition of sex discrimination that enhances Title IX's effectiveness to challenge transgender student's exclusion from the bathrooms, locker room, dormitory, or sports team that comports with their gender identity.
Tuesday, September 30, 2014
California Requires Affirmative Standard for Consent to Sex at State-Funded Colleges and Universities
This week the governor of California signed legislation putting into effect a requirement that colleges and universities receiving state funds define sexual assault as the absence of affirmative consent in their codes of conduct. Dubbed the "yes means yes" standard, the requirement for affirmative consent is meant to clarify what is often the murkiest element of sexual assault by clearly defining as nonconsensual any sexual contact that both partners have actively agreed to. The law also clarifies that someone who is drunk, drugged, or asleep cannot provide consent.While consent must be actively affirmative, it need not be express, as the law allows universities to include nonverbal expressions of consent, such as nodding one's head or moving in closer. On the other hand, consent must be revocable by either party at any time, and must be renewed for each encounter.
I've read many comments that criticize this challenge as an unrealistic expectation that is at odds with college students' natural behavior. Yet at the same time, I noticed several indications of support for an affirmative consent standard among students whose colleges have already imposed one. One male student characterized the Grinnell College student body as generally enthusiastic about its affirmative consent standard that was adopted in 2012, while another male Grinnell student testified that he has worked in questions like "are you all right with this?" and "do you want to go further?" without it feeling odd. And on NPR last night, a female student at Occidental said affirmative consent was "already happening" in her experience, which has included getting questions like "are you good?" that have created openings for her to be specific about what she wants.
Affirmative consent can't really be such a hopelessly unrealistic standard, then, if it's garnered support among students in some places and is already happening naturally in others. Moreover, it's worth pointing out that male and female students alike have entered the public discourse on this issue in favor of affirmative consent. It's possible that students of both sexes realize that just little questions like "are you good?" seem like a small price for the kind of clarity that reduces risks for both the asker and the receiver of such questions.
And even if the critics are right, and affirmative consent is at odds with college student's natural behavior, it is also worth remembering that it's not worst thing in the world to challenge and support students to do better than they otherwise might and to cultivate character and emotional maturity than they have coming in. That is, already, a role that is undertaken by higher education in this country, and there's little reason why that role cannot extent to the issue of consensual sex as well.
I've read many comments that criticize this challenge as an unrealistic expectation that is at odds with college students' natural behavior. Yet at the same time, I noticed several indications of support for an affirmative consent standard among students whose colleges have already imposed one. One male student characterized the Grinnell College student body as generally enthusiastic about its affirmative consent standard that was adopted in 2012, while another male Grinnell student testified that he has worked in questions like "are you all right with this?" and "do you want to go further?" without it feeling odd. And on NPR last night, a female student at Occidental said affirmative consent was "already happening" in her experience, which has included getting questions like "are you good?" that have created openings for her to be specific about what she wants.
Affirmative consent can't really be such a hopelessly unrealistic standard, then, if it's garnered support among students in some places and is already happening naturally in others. Moreover, it's worth pointing out that male and female students alike have entered the public discourse on this issue in favor of affirmative consent. It's possible that students of both sexes realize that just little questions like "are you good?" seem like a small price for the kind of clarity that reduces risks for both the asker and the receiver of such questions.
And even if the critics are right, and affirmative consent is at odds with college student's natural behavior, it is also worth remembering that it's not worst thing in the world to challenge and support students to do better than they otherwise might and to cultivate character and emotional maturity than they have coming in. That is, already, a role that is undertaken by higher education in this country, and there's little reason why that role cannot extent to the issue of consensual sex as well.
Saturday, September 20, 2014
Ninth Circuit Affirms Title IX Win Against California School District
On Friday, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court's ruling after trial that the Sweetwater Union School District in California violated Title IX by providing
inferior facilities and resources to girls' athletics at Castle Park
High School and committed retaliation when it fired a coach who advocated for equal treatment.
First, the court affirmed the lower court's conclusion that Sweetwater failed to satisfy any aspect of the three-part test for equality in the number of athletic opportunities available to each sex. First, the disparity between the percentage of girls in the Castle Park student body and its percentage of female athletic opportunities was a minimum of 6.7 during the time frame at issue in the litigation. The court agreed that this could not amount to "substantial proportionality" because 6.7 percentage points translates to 47 more girls who would have had athletic opportunities if they were proportionally distributed, and 47 girls "can sustain at least one viable team." Second, the fact that Sweetwater increased the number of girls' teams over the last ten years did not constitute a history and continuing practice of expanding opportunities for girls since the number of athletic opportunities actually decreased during that time (from 156 to 149). Third, the school district did not effectively satisfy the interests and abilities of female students, having eliminated a girls field hockey team twice within the time period at issue, and for reasons not related to a lack of interest in the sport. The court also rejected as both false and irrelevant the school district's argument that it should not be expected to sponsor a field hockey team because field hockey is not sanctioned by the state high school athletic association.
The court also affirmed the lower court's ruling that the school district retaliated against the plaintiffs (a class of female student athletes) by firing the softball coach in order to keep him from advocating for equal treatment for his team. First the court agreed that the plaintiffs were challenging retaliation as it was directed to them, rather than asserting the rights of their coach, which would have raised concerns about standing. It then went on to affirm the lower court's conclusion that the school district's purported reasons for firing the coach were pretext for retaliation.
The injunctive relief ordered by the lower court -- the requirement that the school district prepare a compliance plan -- should now go into effect.
When we blogged about this case before, I mentioned that it was a historic case because it was the first time a high school had been brought to trial for violations of Title IX in its athletics program. There is comparatively little historical significance in the outcome on appeal, however, as any other result would have been difficult to imagine. Moreover, the Ninth Circuit decision adds to the overwhelmingly favorable appellate court win-rate for plaintiffs challenging sex discrimination in athletics. See, e.g. (95%). In fact, perhaps the most remarkable thing about this appeal was the school district's chutzpah in trying to justify the discrimination in this case, and its failure to back down either before or after trial.
First, the court affirmed the lower court's conclusion that Sweetwater failed to satisfy any aspect of the three-part test for equality in the number of athletic opportunities available to each sex. First, the disparity between the percentage of girls in the Castle Park student body and its percentage of female athletic opportunities was a minimum of 6.7 during the time frame at issue in the litigation. The court agreed that this could not amount to "substantial proportionality" because 6.7 percentage points translates to 47 more girls who would have had athletic opportunities if they were proportionally distributed, and 47 girls "can sustain at least one viable team." Second, the fact that Sweetwater increased the number of girls' teams over the last ten years did not constitute a history and continuing practice of expanding opportunities for girls since the number of athletic opportunities actually decreased during that time (from 156 to 149). Third, the school district did not effectively satisfy the interests and abilities of female students, having eliminated a girls field hockey team twice within the time period at issue, and for reasons not related to a lack of interest in the sport. The court also rejected as both false and irrelevant the school district's argument that it should not be expected to sponsor a field hockey team because field hockey is not sanctioned by the state high school athletic association.
The court also affirmed the lower court's ruling that the school district retaliated against the plaintiffs (a class of female student athletes) by firing the softball coach in order to keep him from advocating for equal treatment for his team. First the court agreed that the plaintiffs were challenging retaliation as it was directed to them, rather than asserting the rights of their coach, which would have raised concerns about standing. It then went on to affirm the lower court's conclusion that the school district's purported reasons for firing the coach were pretext for retaliation.
The injunctive relief ordered by the lower court -- the requirement that the school district prepare a compliance plan -- should now go into effect.
When we blogged about this case before, I mentioned that it was a historic case because it was the first time a high school had been brought to trial for violations of Title IX in its athletics program. There is comparatively little historical significance in the outcome on appeal, however, as any other result would have been difficult to imagine. Moreover, the Ninth Circuit decision adds to the overwhelmingly favorable appellate court win-rate for plaintiffs challenging sex discrimination in athletics. See, e.g. (95%). In fact, perhaps the most remarkable thing about this appeal was the school district's chutzpah in trying to justify the discrimination in this case, and its failure to back down either before or after trial.
Wednesday, August 14, 2013
California Passes Transgender Rights Law for Students
On Tuesday, California Governor Jerry Brown signed into law A.B. 1266, the School Success and Opportunity Act, which requires public schools in that state to respect a student's gender identity for purposes of all activities, including sports participation, and facilities like restrooms and locker rooms. California is the first state to pass such a law, though Massachusetts, Colorado, and Maine have regulatory policies that require schools to allow students to participate in single-sex programs or use single-sex spaces according to their gender identity, regardless of their sex assigned at birth.
California's law provides important protection to transgender students, who may otherwise be treated differently from other students with the same gender identity, simply because their gender identity is at odds with their birth sex. Arguably, such discrimination is a subset of sex discrimination that is prohibited by Title IX. A recent settlement negotiated by the Department of Education's Office for Civil Rights suggests that the government may be interpreting Title IX to require schools to regard students in the manner of their gender identities would help clarify this obligation across the states. But until the Department of Education or the courts clarify that Title IX applies to transgender students who want to be treated just like other members of their affirmed sex, state-level protection like California's will provide the strongest, clearest mandate for the full inclusion of transgender students.
California's law provides important protection to transgender students, who may otherwise be treated differently from other students with the same gender identity, simply because their gender identity is at odds with their birth sex. Arguably, such discrimination is a subset of sex discrimination that is prohibited by Title IX. A recent settlement negotiated by the Department of Education's Office for Civil Rights suggests that the government may be interpreting Title IX to require schools to regard students in the manner of their gender identities would help clarify this obligation across the states. But until the Department of Education or the courts clarify that Title IX applies to transgender students who want to be treated just like other members of their affirmed sex, state-level protection like California's will provide the strongest, clearest mandate for the full inclusion of transgender students.
Friday, July 26, 2013
Transgender Student Prevails In Title IX Settlement
The Arcadia School District in California has agreed to allow a transgender ninth grader to use male restrooms and locker rooms and to "otherwise treat the student as a boy in all respects." The student has a male gender identity and has been living as a boy since the fifth grade. With the help of the National Center for Lesbian Rights, he filed complaints with the Department of Education and the Department of Justice, alleging that the district violated Title IX by denying him access to boys' facilities at school, and by not allowing him to share a cabin with other boys on a school-sponsored camping trip. The voluntary resolution agreement announced this week ends the agencies' joint investigation into the matter. Under the agreement, the school district must treat the student as a boy going forward, as well as amend its policies to ensure that other transgender students' gender identities receive similar respect. By entering into this agreement, the school district preempts any formal findings that it was in violation of Title IX.
This case is significant because it represents the first time that the Department of Education has considered under its jurisdiction to enforce Title IX a claim involving discrimination on the basis of transgender gender identity -- i.e., treating a transgender student who identifies as male differently from other, non-transgender students who identify as male. Implicit in the Department's willingness to extend its enforcement power to a case like this is the agency's broad definition of what it means to discriminate on the basis of sex. It is not an entirely novel interpretation, however. The Department of Education may have been influenced by a similarly broad definition of sex discrimination which appeared earlier this year in a ruling by the EEOC in the analogous context of employment discrimination. There, the agency agreed to accept jurisdiction over a case involving a transgender complainant who was passed over for a job, reasoning that whether because the discrimination was based on the complainant's gender nonconformity, change of gender, or transgender gender identity, the case was one of sex discrimination and needed to be treated as such.
Now that the Department of Education has demonstrated that it is willing to extend its Title IX enforcement power to transgender gender-identity discrimination cases, it is likely we will see more such cases in the future.
This case is significant because it represents the first time that the Department of Education has considered under its jurisdiction to enforce Title IX a claim involving discrimination on the basis of transgender gender identity -- i.e., treating a transgender student who identifies as male differently from other, non-transgender students who identify as male. Implicit in the Department's willingness to extend its enforcement power to a case like this is the agency's broad definition of what it means to discriminate on the basis of sex. It is not an entirely novel interpretation, however. The Department of Education may have been influenced by a similarly broad definition of sex discrimination which appeared earlier this year in a ruling by the EEOC in the analogous context of employment discrimination. There, the agency agreed to accept jurisdiction over a case involving a transgender complainant who was passed over for a job, reasoning that whether because the discrimination was based on the complainant's gender nonconformity, change of gender, or transgender gender identity, the case was one of sex discrimination and needed to be treated as such.
Now that the Department of Education has demonstrated that it is willing to extend its Title IX enforcement power to transgender gender-identity discrimination cases, it is likely we will see more such cases in the future.
Friday, November 02, 2012
Journalists Expose Lack of Title IX Compliance in Bay Area Schools
A team of investigative reporters from the Bay Area NBC News affiliate reported this week that few area schools comply with Title IX's requirement that districts appoint a Title IX Coordinator to oversee compliance and receive and handle complaints about discrimination and harassment on the basis of sex. It is one of the law's most simple and straightforward requirements, yet, school officials seem almost intent on ignoring it, as the results of the journalists' investigation reveal. The news team sent this email to over 200 principals in California's Bay Area:
Most of the principals did not even respond. And most of those who did had no idea.
Most of the principals did not even respond. And most of those who did had no idea.
Here are some of the responses:
"We don't have a title ix coordinator"
"I think that would be me….???"
"I’m not sure who you would need to talk to."
"I have no idea who it is. Try labor relations they should know."
"i have no idea what title nine is, sorry."
"I need to know who I am talking to before I send that information."
In a follow up meeting with a spokesperson for one of the districts, the San Francisco Unified School District, the reporters found out the name and position of the district's Title IX Coordinator, but confirmed that her name and contact information does not appear in writing in any place accessible to someone with a grievance, as the law requires.
A national nonprofit, Equal Rights Advocates, followed up on the news team's report by adding pressure on school districts to comply. ERA sent 100 schools a request for confirmation that they have a Title IX Coordinator, and that the person as well as the procedures for filing harassment and discrimination complaints are published and available to the public. I suspect that they plan to use any non-response as the basis of a complaint to the Department of Education.
Tuesday, May 15, 2012
Brandi Chastain witnesses backlash
Erin has been doing a great job noting all the 40th anniversary coverage that has been going on nationally. They haven't all been happy, happy, rah-rah events, however.
Former USWNT player, Brandi Chastain, was participating in one such event last week. The California Assembly was marking the anniversary by honoring Chastain and others. The event was conducted in the form of a resolution (my guess was that it was simply a resolution to honor Title IX). An assemblyman, Chris Norby, used the opportunity to decry the ways Title IX has been interpreted. (One of my all-time favorite excuses: we like the law, we just don't like the way it has been put into effect.) It was his right, of course, as a member of a legislative body passing a resolution. Takes a fair amount of...something...to speak out in front of one of the most celebrated female athletes of the modern era, who is also a noted advocate for girls and women in sports.
Chastain wanted to offer a rebuttal of some sort. Alas it was not her right to do so because the event was not a public hearing.
Fortunately other legislators defended the legislation and offered examples of the why they provide their support and of continuing inequities.
Former USWNT player, Brandi Chastain, was participating in one such event last week. The California Assembly was marking the anniversary by honoring Chastain and others. The event was conducted in the form of a resolution (my guess was that it was simply a resolution to honor Title IX). An assemblyman, Chris Norby, used the opportunity to decry the ways Title IX has been interpreted. (One of my all-time favorite excuses: we like the law, we just don't like the way it has been put into effect.) It was his right, of course, as a member of a legislative body passing a resolution. Takes a fair amount of...something...to speak out in front of one of the most celebrated female athletes of the modern era, who is also a noted advocate for girls and women in sports.
Chastain wanted to offer a rebuttal of some sort. Alas it was not her right to do so because the event was not a public hearing.
Fortunately other legislators defended the legislation and offered examples of the why they provide their support and of continuing inequities.
Monday, March 05, 2012
OCR Rejects 900 Complaints About California High Schools
Last fall we blogged about the large number simultaneous complaints filed with the Department of Education's Office for Rights about Title IX violations in Oregon, Washington, and Idaho high schools. In those cases, anonymous complainants used public data from the OCR's 2006 Civil Rights Data Collection to identify hundreds of high schools in these states in which girls had disproportionately low number of athletic opportunities and no evidence of continuous effort to increase those opportunities. OCR's regional enforcement office, likely overwhelmed with the high volume of complaints, dismissed them for insufficient allegation that the school districts were also in violation of prong three of the three-part test for determining whether athletic opportunities are equitably distributed based on sex. Prong one requires proportionality, prong two requires continuous program expansion for the underrepresented sex, and prong three requires no unmet interest among the underrepresented sex. Schools only need to comply with one of the prongs.
Gone unnoticed in the press is a similar mass complaint alleging Title IX violations in 900 California high schools, using similar basis for allegations as the Washington, Oregon, and Idaho complaints. 900! That's 85% of California's public high schools at which girls have disproportionately low numbers of athletic opportunities. While this is not dispositive of the question of compliance, it is certainly likely that if girls have low numbers of athletic opportunities relative to boys, which haven't been increasing on a regular basis, there is likely unmet interest among the underrepresented sex.
Like the mass-complaints filed about California's neighboring Northwest states, the complaint about the California 900 was also rejected by OCR, which has required the complainant to make a specific allegation of unmet interest before proceeding with an investigation. Specifically, OCR suggested that the complainant include allegations that girls have requested additional teams that have been denied, or that there is widespread participation in a particular sport in private clubs or other non-scholastic contexts. OCR rejected the argument that it is the school district's burden to prove Title IX compliance, not the complainant's burden to prove that it does not.
As I suggested in the context of the Idaho complaints, this outcome may be unique to the context of the mass-complaint, designed to preserve agency resources, which surely do not allow for the agency to effectively investigate 900 high schools simultaneously, and not an effort to change the rules of the game for typical, single-district complaints. I take to heart the fact that OCR's letter to the complainant rejecting the 900 complaints included the boilerplate language, "This letter is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such."
Even still, I disagree with the way OCR is handling the allegations in the mass complaints. By rejecting them out of hand, OCR is missing a valuable opportunity to send a message to school districts that compliance with prong three is an active, not passive obligation. A school district with disproportionate opportunities should not get to sit back and relax, assuming that if girls are not rallying in the street for equal opportunities, that all is well. They should be regularly assessing the level of student interest, and responding accordingly. If they are conducting regular assessment, it should not be a burden for those districts to submit on request evidence that their athletic offerings for girls, lopsided though they may be, satisfy the interests and abilities of the underrepresented sex, such as through survey evidence or community-wide participation reports. That said, here is what I would do if I were the head of OCR enforcement in California's region. I would send identical letters to all 900 high schools to the effect of, "Hey,we've gotten a Title IX complaint alleging that your school doesn't comply with all three prongs. Please submit whatever evidence compels your conclusion that you comply with prong three (or even prong two), so that we can dismiss the complaint against you. If you don't have that information, please sign this voluntary resolution agreement detailing how you will assess student interest and respond with additional opportunities if the assessment shows unmet interest. If you don't submit either, OCR will open the complaint for investigation."
Gone unnoticed in the press is a similar mass complaint alleging Title IX violations in 900 California high schools, using similar basis for allegations as the Washington, Oregon, and Idaho complaints. 900! That's 85% of California's public high schools at which girls have disproportionately low numbers of athletic opportunities. While this is not dispositive of the question of compliance, it is certainly likely that if girls have low numbers of athletic opportunities relative to boys, which haven't been increasing on a regular basis, there is likely unmet interest among the underrepresented sex.
Like the mass-complaints filed about California's neighboring Northwest states, the complaint about the California 900 was also rejected by OCR, which has required the complainant to make a specific allegation of unmet interest before proceeding with an investigation. Specifically, OCR suggested that the complainant include allegations that girls have requested additional teams that have been denied, or that there is widespread participation in a particular sport in private clubs or other non-scholastic contexts. OCR rejected the argument that it is the school district's burden to prove Title IX compliance, not the complainant's burden to prove that it does not.
As I suggested in the context of the Idaho complaints, this outcome may be unique to the context of the mass-complaint, designed to preserve agency resources, which surely do not allow for the agency to effectively investigate 900 high schools simultaneously, and not an effort to change the rules of the game for typical, single-district complaints. I take to heart the fact that OCR's letter to the complainant rejecting the 900 complaints included the boilerplate language, "This letter is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such."
Even still, I disagree with the way OCR is handling the allegations in the mass complaints. By rejecting them out of hand, OCR is missing a valuable opportunity to send a message to school districts that compliance with prong three is an active, not passive obligation. A school district with disproportionate opportunities should not get to sit back and relax, assuming that if girls are not rallying in the street for equal opportunities, that all is well. They should be regularly assessing the level of student interest, and responding accordingly. If they are conducting regular assessment, it should not be a burden for those districts to submit on request evidence that their athletic offerings for girls, lopsided though they may be, satisfy the interests and abilities of the underrepresented sex, such as through survey evidence or community-wide participation reports. That said, here is what I would do if I were the head of OCR enforcement in California's region. I would send identical letters to all 900 high schools to the effect of, "Hey,we've gotten a Title IX complaint alleging that your school doesn't comply with all three prongs. Please submit whatever evidence compels your conclusion that you comply with prong three (or even prong two), so that we can dismiss the complaint against you. If you don't have that information, please sign this voluntary resolution agreement detailing how you will assess student interest and respond with additional opportunities if the assessment shows unmet interest. If you don't submit either, OCR will open the complaint for investigation."
Saturday, February 11, 2012
High School Athletes Win Title IX Trial
A group of female athletes in Chula Vista, California, won their class action lawsuit against Sweetwater Union School District, having convinced a federal judge at trial that the school violated Title IX by providing inferior facilities and resources to girls' athletics at Castle Park High School. The judge found that a higher percentage of male athletes than female athletes had access to superior facilities, including dedicated locker rooms and other amenities. For example, the girls' softball field was poorly maintained and lacked fences and covered dugouts, compared to the boys field which was well-maintained, fenced, and had covered dugouts. The judge also found that female athletes were more likely to have fewer coaches, less qualified coaches, and coaches who had to devote more of their time to other school duties. Compared to boys' sports, girls' sports rarely received the support of the school band, and girls sports never received the support of cheerleaders. Boys' teams were permitted to fundraise, while some girls' teams were not. Finally, the judge found that the school district's stated reasons for firing the softball coach were "not credible and pretextual" of retaliation against the softball program for a parent's complaint about gender equity issues.
The plaintiffs had earlier prevailed in the aspect of their case that addressed discrimination in the number of athletic opportunities available to girls, as we blogged about here. The parties have 45 days to propose a compliance plan.
It is common for the Department of Education's Office for Civil Rights to address disparities in athletic facilities, equipment, and other amenities in high schools as well as colleges. It is less common for plaintiffs to seek judicial enforcement against this kind of discrimination. In fact, the Title IX Blog believes that this is the first time a case about high school facilities has gone to trial in a court. Kudos to the Legal Aid Society-Employment Law Center, the California Women's Law Center, and Manatt, Phelps & Phillips, LLP, who represented the plaintiffs in this precedent-setting case.
The plaintiffs had earlier prevailed in the aspect of their case that addressed discrimination in the number of athletic opportunities available to girls, as we blogged about here. The parties have 45 days to propose a compliance plan.
It is common for the Department of Education's Office for Civil Rights to address disparities in athletic facilities, equipment, and other amenities in high schools as well as colleges. It is less common for plaintiffs to seek judicial enforcement against this kind of discrimination. In fact, the Title IX Blog believes that this is the first time a case about high school facilities has gone to trial in a court. Kudos to the Legal Aid Society-Employment Law Center, the California Women's Law Center, and Manatt, Phelps & Phillips, LLP, who represented the plaintiffs in this precedent-setting case.
Friday, July 01, 2011
Settlement Follows OCR Investigation of Anti-Gay Bullying and Suicide
In January, we blogged that the Department of Education's Office for Civil Rights had undertaken an unprecedented investigation by agreeing to look into charges that a school district failed to protect a middle-school student from anti-gay bullying that resulted in the student's suicide. Today OCR announced that the school district, Tehachapi Unified in California, has agreed to a settlement in response to OCR's finding that the school district was in violation of Title IX. Specifically, OCR determined that the student, Seth Walsh, was targeted for his "nonconformity with gender stereotypes, including his predominantly female friendships and stereotypically feminine mannerisms, speech and clothing." Additionally, the harassment was severe and pervasive, and that the school officials knew about it and did not adequately respond.
Under the terms of the settlement, the school district has agreed to a number of reforms, including revision of its harassment policies to address gender-based harassment, better training and education for its students, teachers, administrators, a survey assessment of the school climate regarding harassment, and responding to the climate through measures determined by consultation with an advisory committee, of administrators, students and parents.
These settlement terms are in my opinion are not so much punitive as simply "best practices" for prevention of bullying and harassment. Other school districts should not wait for a situation to escalate into a tragedy and government intervention before taking this list on themselves.
Under the terms of the settlement, the school district has agreed to a number of reforms, including revision of its harassment policies to address gender-based harassment, better training and education for its students, teachers, administrators, a survey assessment of the school climate regarding harassment, and responding to the climate through measures determined by consultation with an advisory committee, of administrators, students and parents.
These settlement terms are in my opinion are not so much punitive as simply "best practices" for prevention of bullying and harassment. Other school districts should not wait for a situation to escalate into a tragedy and government intervention before taking this list on themselves.
Monday, January 17, 2011
Sexual Harassment Roundup
A number of judicial decisions involving Title IX's application to sexual harassment have been issued in the last several weeks.
- The Fourth Circuit Court of Appeals, reversing a lower district court, held that a plaintiff had presented sufficient evidence to survive summary judgment, and could pursue her claim that a municipal police academy is liable for the hostile environment she experienced as a cadet. This record included numerous instances of ostracism by her fellow cadets, sexualizing comments about women generally, and criticism and humiliation that negatively affected her education and performance on a handgun proficiency test, for which she was ultimately expelled. The record also contained references to numerous complaints that the plaintiffs and other academy instructors to the academy supervisor, which never resulted in any effort to protect the plaintiff or correct the offending cadets. This was actually a Title VII case, but is likely to be cited by Title IX plaintiffs as well, especially for the point that academic failures cannot be the basis for taking adverse action against a student when those failures were influenced by a hostile classroom environment. Mosby-Grant v. City of Hagerstown, 2010 WL 5151617 (4th Cir. Dec. 20, 2010).
- A federal district court in California granted the University of the Pacific's motion for summary judgment, and dismissed a student-athlete's claim that the university was liable under Title IX for an assault against her by three members of the men's basketball team. According to the court, the plaintiff did not present evidence that university officials had notice that the male athletes posted a threat to the plaintiff, as none knew that one of the assailants had been involved in a prior incident of assault, and another assailant's reputation as a "womanizer" was not enough to link him to prior incidents of assault. Nor did the University respond with deliberate indifference. Officials contacted the police immediately after the plaintiff's assault, conducted an investigation and convened judicial proceedings that expelled one of the students and suspended the other two. Doe v. University of the Pacific, 2010 WL 5135360 (E.D. Cal., Dec. 8, 2010).
- A school district in Washington is not liable for a female students' sexual abuse and harassment of her male peer, a fellow 10th grader who suffers from autism. The federal court dismissed the plaintiff's Title IX case after determining there was no evidence that school officials knew he was being abused. Even though one teacher apparently encountered the two students in a sexually suggestive position -- the female student sitting on top of the male student victim, "pretending to rape him" through their clothes -- the court determined that this could have appeared to the teacher as behavior that, while inappropriate for school grounds, was consensual rather than harassment or abuse. Though the court was careful to avoid gender stereotypes about boys' invulnerability to sexual abuse by girls, it did point out that because of the girl's small size made it more reasonable for the teacher to interpret what he saw as consensual. J.B. ex rel. Bell v. Mead School District No. 354, 2010 WL 5173164 (E.D. Wash., Dec. 10, 2010).
- A plaintiff's Title IX claim against a Pennsylvania school district survived a motion to dismiss; the court recognized that the plaintiffs' complaint sufficiently alleged that school officials had notice that a teacher and coach was sexually abusing or harassing their daughter, a student, yet took no steps to preclude Hetrick from having further contact with K.E., nor did it notify either the police or the plaintiffs about the allegations. Having survived the motion to dismiss, the case can now proceed to discovery, where the plaintiffs can gather evidence to prove their allegations. Douglass v. Brookville Area Sch. Dist., 2010 WL 5313448 (W.D. Pa., Dec. 20, 2010).
- A graduate student in social work sued both her university as well as her internship site, a municipal senior center, for sexual harassment by one of the center's clients. When the plaintiff informed the supervisor, she was advised to treat the client's behavior, which included physically, hugging her, touching her breasts and rear end, as a learning experience and an opportunity to demonstrate her commitment to social work. The federal court in Massachusetts sustained the plaintiff's constitutional claims against her on-site supervisor, as well as the Title IX claims against Boston University. The judge sustained the plaintiff's Title IX claim because she alleged that her faculty supervisors knew she was being harassed at her placement and failed to address it with the on-site supervisor or move her to a different internship site. Rinsky v. Boston Univ., 2010 WL 5437289 (D. Mass. Dec. 23, 2010).
- A "prank" in which a teacher and an aide pretended to cut a sixth-grade boy's long hair, and then teased the student by calling him a female name in front of both sixth grade classes, could result in the school district's liability under Title IX. A federal court in Ohio rejected the district's motion to dismiss because the plaintiff, the student's mother, alleged that her son reported the incident to school officials, who took no corrective action and forced him to return to the offending teachers' class. Anoai v. Mildford Exempted School District, 2011 WL 53164 (S.D. Ohio, Jan. 6, 2011).
Saturday, January 15, 2011
OCR Investigates Anti-Gay Abuse that Lead to Suicide
The Office for Civil Rights will reportedly investigate claims that the Tehachapi Unified School District in California failed to protect a student from anti-gay bullying and harassment that resulted in the student's suicide in September. This appears to be the first investigation of its kind, coming on the heels of OCR's guidance letter to schools that delineates schools' responsibilities under Title IX to address sexual orientation discrimination that overlaps with sex discrimination, like where the student is targeted for failing to conform with stereotypes about sex and gender. The student whose suicide has prompted this investigation was thirteen-year-old Seth Walsh, who hanged himself from a tree in his backyard after fellow students at Jacobsen Middle School harassed him because he was openly gay, and because if his mannerisms and appearance. The investigation will determine whether school officials responded appropriately to bullying that they knew or should have known was going on.
Tuesday, December 14, 2010
Title IX Is an Education Statute
In Menlo Park, California, an eight-year-old girl wants to play basketball in the city league with her friends, who are boys. But the city runs separate leagues for boys and girls, and refuses to make an exception for this "4-foot-6 tomboy." So her parents hired a lawyer, who threatened to sue the city under Title IX. The city's lawyer wrote back, arguing that Title IX does not require them to let her play in the boys league because of the law's limited application to contact sports.
I'm not sure how both lawyers missed the obvious here. Maybe the plaintiff's lawyer was bluffing, but both seem to desperately need a Title IX primer. Title IX is an education statute. It applies only to schools, not municipalities.
To the plaintiff's lawyer's credit, he also claimed that the city's segregated athletics program violated the Constitution's Equal Protection Clause. OK, now you're talking -- under that clause, government entities cannot have policies that treat people differently because of their sex unless they have a good reason. In many cases, courts have ruled that excluding girls from boys' athletic programs (including contact sports like football) violates the Equal Protection Clause because stereotypes about girls' ability, fragility and interest are not good reasons to exclude them. However, those reasons may be less at play in cases like this one, where the city isn't excluding girls all together, but is running sex-segregated programs. Nonetheless, if the city finds itself in litigation, it had better be ready to articulate a good reason to keep kids who are friends, and have comparable size and talent from playing with each other just because they are of different sexes.
I'm not sure how both lawyers missed the obvious here. Maybe the plaintiff's lawyer was bluffing, but both seem to desperately need a Title IX primer. Title IX is an education statute. It applies only to schools, not municipalities.
To the plaintiff's lawyer's credit, he also claimed that the city's segregated athletics program violated the Constitution's Equal Protection Clause. OK, now you're talking -- under that clause, government entities cannot have policies that treat people differently because of their sex unless they have a good reason. In many cases, courts have ruled that excluding girls from boys' athletic programs (including contact sports like football) violates the Equal Protection Clause because stereotypes about girls' ability, fragility and interest are not good reasons to exclude them. However, those reasons may be less at play in cases like this one, where the city isn't excluding girls all together, but is running sex-segregated programs. Nonetheless, if the city finds itself in litigation, it had better be ready to articulate a good reason to keep kids who are friends, and have comparable size and talent from playing with each other just because they are of different sexes.
Subscribe to:
Posts (Atom)