OCR Investigates Complaint Against School's Transgender Bathroom Poicy

The Department of Education's Office for Civil Rights has opened an investigation into the school district in Decatur, Georgia, based on allegations that the district's transgender-inclusive bathroom policy lead to the sexual assault of five-year-old cisgender girl in the girl's bathroom at one of the district's elementary schools. The complaint also alleges that it compromises the privacy of girls by exposing them to "the problem of Peeping Toms."

Here is more detail about the alleged assault, as described in the the complaint:

[I]n November 2017, a boy known to the school administration to identify as “gender fluid” (“the Assailant”) was permitted—pursuant to and as a direct result of the Policy—to enter the girls’ room while [Victim] was there. While the two young children were in the girls’ restroom alone together, the Assailant confronted [Victim], pushed her against a wall, and forcibly touched her genitals despite her protests, causing her both pain and fear. This sexual assault (“the Assault”), which was a foreseeable result of the Policy and would not have happened but for the Policy, discriminated against [Victim] based on her sex and created a hostile and intimidating environment in which [Victim] must fear repeated incidents of sexual harassment or assault in the future.

According to the Washington Post, "City Schools of Decatur officials have contested the version of events laid out in the complaint," including by "contradicting claims that the classmate the girl identified is gender fluid." It also noted that "a social service agency investigation determined the girl's allegations were 'unfounded.'"

This is an investigation we will watch closely and with concern. The Department of Education repealed the previous administration's guidance that requires schools to accommodate transgender students according to their gender identities in bathrooms and locker rooms, but it has not prohibited schools from doing so.  If the agency finds that the school has violated Title IX, it could signal the agency's position that inclusive bathroom policies violate Title IX. It would also create a conflict between the agency and judicial interpretations of Title IX which have in recent years consistently supported transgender students rights in bathrooms, and which have rejected arguments on behalf of cisgender girls that the inclusion of transgender girls somehow violates their rights.

Litigation Roundup: School Districts Lacking Notice

In several recent cases, courts rejected claims that school districts were liable for sexual misconduct by employees or students due to lack of notice.  Here are case summaries:

The Fifth Circuit Court of Appeals reversed a district court's judgment in favor of a plaintiff who sued the South San Antonio Independent School District after having been molested by the vice principal, later principal, of the elementary school he attended.  After the jury awarded the plaintiff $4.5 million, the school district moved to dismiss the case as a matter of law and appealed an adverse ruling on this motion to the appellate court.  A school district is liable for sexual misconduct of its employees if someone with authority to take corrective action has notice of the misconduct and responds with deliberate indifference. In this case, the plaintiff argued that because the perpetrator was the vice principal  -- someone with authority to take corrective action -- then the notice requirement was satisfied.  However, the Fifth Circuit disagreed, concluding that the perpetrator's knowledge of his own misconduct does not qualify. The notice requirement is meant to limit school district liability to only those cases where those in authority ignore sexual misconduct that they know is going on, and one does not "ignore" one's own misconduct. Put another way, the court reasoned that implicit in the notice requirement is a requirement that the person to whom notice is given is a person who does not already know that the misconduct is going on.  Otherwise, there is potential automatic liability every time someone with authority is the perpetrator.
Decision: Salazar v. South San Antonio Indep. Sch. Dist., 2017 WL 2590511 (5th Cir. June 15, 2017).

The Eleventh Circuit Court of Appeals affirmed a lower court's decision to dismiss Title IX claims filed against Bibb County (Georgia) school district stemming from the rape of a female special education student, the plaintiff in the case. The facts are terrible: A male student walked into the plaintiff's classroom and told the teacher that another teacher wanted to see the plaintiff. The teacher let her go with him, and he brought her to the bathroom where she was gang-raped by seven male students, none of whom had ever been reported for any kind of sexual misconduct.  For the district to be liable for the rape, however, there must be some prior misconduct that put school officials on notice that the plaintiff was at risk for what happened.  Considering the appeal, the Eleventh Circuit affirmed that it is not necessary for a plaintiff to show that she herself had reported prior incidents, nor that the perpetrators themselves had been the subject of such reports.  Still, however, there must be a reasonable enough similarity between the prior incidents and the plaintiff's rape to put school officials on notice, and the appellate court agreed with the district court that such similarity was lacking here.  There had been prior incidents of sexual assault in the high school; one of which did not involve students in the special education program and so could not serve as notice that students participating in that program were at an elevated risk.  The other did involve special education students, but the circumstances were different as the students involved had been left alone unsupervised in a classroom, whereas here, the perpetrators used deceit to extract the victim from her classroom.  Therefore, there was nothing on which to base a claim that the school district should have acted to prevent the rape that occurred here.
Decision: Jane Doe v. Bibb County Sch. Dist., 2017 WL 2240825 (11th Cir. May 22, 2017).

The parents of an eighth grader can not pursue their lawsuit against the Independent School District of Delaware County (Oklahoma) that stems from a romantic and sexual relationship that occurred between their ninth-grade daughter and her basketball coach, an employee of the district. The federal district court in Oklahoma granted summary judgment to the district on the parents' Title IX claim because their were no allegations that the school district was indifferent to the coach's sexual misconduct that was known to appropriate school officials. Once the principal learned of a rumor that the coach and the student had been locked in a room together, he and the superintendent investigated and quickly got corroboration by the student. The coach was suspended immediately and eventually terminated. The parents argued that school officials actually had notice that this coach posed a threat of sexual misconduct to his players based on prior complaints that a couple of parents had made against the coach.  However, these complaints, which were investigated, did not involve conduct that was predictive of the sexual misconduct that occurred in this case. There had been a complaint that the coach sometimes texted individual players, and sometimes talked about butts in practice. But the investigation revealed that the texts and the comments were related to basketball and reasonably handled by an order to the coach not to text individual players any more. In the absence of deliberate indifference to sexual misconduct that was known or foreseeable to school officials the school district was not liable for damages arising from the the coach's sexual misconduct with the plaintiffs' daughter.
Decision: Callihan v. Indep. Sch. Dist. No. 1., 2017 WL 2783990 (N.D. Okla. June 27, 2017).

Teachers' Sexual Misconduct at Issue in Recent Cases

In the last month or so federal courts have made decisions in several cases in which sexual misconduct by teacher and coaches have given rise to Title IX litigation. Here is a summary.

A federal court in Pennsylvania refused to dismiss Title IX claims stemming from a music teacher's ongoing sexual assault of a student that began when she was in middle school and extended into high school. The male teacher had intercourse and engaged in other acts of sexual assault with the female student on multiple occasions and the student had gotten pregnant as a result. Twice the student reported the teacher's misconduct to another teacher.  School officials claimed they did not ever hear about the first report, but they did get the second.  Rather than investigating, however, they allegedly pressured the victim to rescind her claims against the music teacher. (Eventually the teacher plead guilty in a criminal proceeding.)  Especially when factoring in earlier complaints that this same teacher had harassed other female students, the court agreed that she had satisfactorily alleged notice and deliberate indifference, the key elements for institutional liability under Title IX. K.E. v. Dover Area Sch. Dist., 2016 WL 2897614 (M.D. Pa. May 18, 2016).

Also in Pennsylvania, a school district prevailed at summary judgment on claims that it violated Title IX by failing to protect a student from sexual abuse by her coach. In this case, school officials found out about the ongoing misconduct when the coach was arrested by police. There was no evidence suggesting that they knew about what was happening and failed to intervene. The coach had been dismissed from another school for sexual misconduct, but on inquiry from the defendant's athletic director, the coach's prior employer said that his dismissal was due to "excessive texting" of a student, which did not put the defendant on actual notice that the coach posed an imminent sexual threat to his players. Nace v. Pennridge Sch. Dist., 2016 WL 2609789 (E.D. Pa. May 6, 2016).

A female student on the predominantly-male wrestling team sued her Pennsylvania school district for failing to respond to her allegations of sexual harassment by the coach. The court disagreed with the plaintiff's characterization of the coach's behavior as sexual harassment and dismissed the claim. Specifically, the court acknowledged that the coach was "vulgar and inappropriate" -- he told the plaintiff and another female wrestler that they had to "be the boy" and ought to wear strap-ons. He teased other male wrestlers on the team that the plaintiff is the only girl he would ever touch or have on top of him. But, the court determined, this harassment was not sufficiently pervasive because the plaintiff alleged only about 10 sexually-tinged comments over 2-3 years.  Also, because the coach acted this way towards all the wrestlers on the team, he was not singling out the plaintiff because of sex.  Moeck v. Pleasant Valley Sch. Dist., 2016 WL 1553440 (M.D. Pa. Apr. 15, 2016).

Other states besides Pennsylvania contributed cases to this collection. A federal court in Georgia determined that the plaintiff had not sufficiently alleged that the school district was on notice of a teacher's sexual misconduct, and dismissed her case accordingly. The very day that the student's stepfather reported evidence of the teacher's misconduct to school officials, the district commenced an investigation. By the end of the day, the teacher had resigned and was facing criminal charges. Nothing in the plaintiff's complaint suggested that the school district had missed earlier opportunities to intervene, the court concluded. Specifically, the court rejected the plaintiff's argument that the school district was on notice because it knew that the teacher had been fired from an earlier job for sexual harassment. According to the court, this knowledge did not put officials on notice that the teacher posed an imminent threat to this particular student. Though the court did acknowledge past misconduct can in some cases provide notice of an imminent threat against a new victim, there must be a stronger pattern of past misconduct than what was alleged here. S.W. v. Clayton County Public Schools, 2016 WL 2755607 (M.D. Ga. May 12, 2016).

In this last case, the student did not claim that the school district was liable for the teacher's misconduct, but instead, for retaliating against him for having been involved in a sexual relationship with the teacher.  The court quickly dismissed this claim, noting that it failed to allege many required elements of retaliation. For one, the student himself did not engage in the requisite protected conduct by reporting the teacher's abuse; instead, school officials discovered it based on reports of other students. Additionally, there was no basis for concluding that the disciplinary action that the student later faced for chewing tobacco and other offenses were in any way related to his relationship to the teacher.  Gordon v. Traverse City Public Schools, 2016 WL 1566721 (W.D. Mich. Apr. 19, 2019).

Roundup of School District Sexual Harassment Cases

Here are some updates in Title IX cases involving sexual harassment in schools:

• A federal court ruled that bullying consisting of pulling down another boy's pants, one time in front of a girl, was not harassment "because of sex" for purposes of Title IX. Morgan v. Town of Lexington, 2015 WL 5634463 (D. Mass. Sept. 24, 2015).  

• A principle's arguable knowledge of a volunteer teacher's "inclination to engage in inappropriate relationships with school-age boys," in combination with the school district's lack of effort to limit the teacher's access to its students, precluded summary judgment on Title IX claim. K.S. v. Detroit Public Schools, 2015 WL 5460674 (E.D. Mich. Sept. 16, 2015). 

• School officials' failure to respond to reports of one student's sexual abuse of various other students by doing anything other than documenting the incidents and, in one case, moving the victim to another dorm room, could constitute deliberate indifference for purposes of Title IX.  BPS v. Colo. Sch. for the Deaf and Blind, 2015 WL 5444341 (D. Colo. Sept. 16, 2015).

• Dispute as to whether or not parent had told school officials about sexual misconduct by an adult male special needs student precluded dismissal on summary judgment.  Kauhako v. State of Hawaii Bd. of Educ., 2015 WL 5312359 (D. Ha. Sept. 9, 2015).

• School district's decision to defer to police department's investigation was not deliberately indifferent, where it continued to prevent the perpetrators from returning to school and took other steps to measure and address safety.  Doe v. Bibb County Bd. of Educ., 2015 WL 5063746 (M.D. Ga. Aug. 27, 2015).

• A school cannot be liable under Title IX for a teacher's sexual advances on a student, where school officials acted swiftly and decisively to force the teacher's resignation upon learning of his misconduct.  Doe v. Crown Point Sch. Corp., 2105 WL 5038093 (N.D. Ind. Aug. 26, 2015).

• Title IX claim alleging school district's failure to respond to bullying directed at the plaintiff because of his "effeminate mannerisms and way of speaking" adequately alleged discrimination on the basis of sex. J.R. v. N.Y. City Bd. of Educ., 2015 WL 5007918 (E.D.N.Y. Aug. 23, 2015). 

Litigation Roundup

Two separate Title IX lawsuits have been filed recently, one challenging disparities in athletic opportunities at a high school, while the other alleges a college mishandled her complaint of having been raped by a fellow student.

• A parent in Englewood, Tennessee, is suing the McMinn County Board of Education on behalf of his daughter, a freshman at McMinn Central High School who participates in softball and volleyball.  He alleges that disparities in the athletic opportunities for girls violate Title IX. In particular, he alleges that the softball team has to pay itself for field maintenance and equipment, amenities that are provided to boys' teams from the school budget.  Also, the school does not provide the softball team with a lighted field, which limits the team's scheduling options for practices and games. The complaint also notes that the boys' baseball team is provided superior quality locker rooms, dugouts, field house, storage facility, playing surface, and warm up and practice areas. The lawsuit seeks an injunction against continued discrimination and damages to compensate the plaintiff for out-of-pocket expenses and other costs. 

• A former student is suing the West Virginia School of Osteopathic Medicine, claiming that she was forced to withdraw after she reported to school officials that she had been raped by a fellow student at an off-campus party.  She alleges that school officials responded to her report by advising her to leave school, since they could not guarantee her safety. Additionally, she claims that they did not administer a drug test, leaving her on her own to discover that her assailant had drugged her with diazepam, that they failed to protect her from further contact with him, that they threatened to sue her if she spoke out, and that they breached her confidentiality. Moreover, she alleges that she experienced a sexually hostile environment after a school employee who was dating the alleged, disclosed details of the incident to the campus community.  Her complaint demands damages to compensate her for emotional distress and other costs, as well as an injunction that would require the school to do a better job responding to victims in the future by implementing drug tests and protecting them from harassment and retaliation.

And in another story, a Title IX lawsuit was partially dismissed.

• The Bibb County School District in Georgia prevailed in dismissing part of a student's Title IX claim seeking damages for a 2012 rape she suffered at the hands of a gang of fellow students who had orchestrated a plan to attack her in a school restroom.  The student alleged that two prior instances of gang rape at the school, one in 2008 and another in 2002, should have put the school on notice of the threat, one of the required elements for institutional liability to attach in cases of sexual harassment and sexual violence among peers. But the court ruled that the two earlier gang rapes could not serve as notice because they were sufficiently different, having been conducted by different gangs than the one that raped the plaintiff. In imposing this requirement for gang-specific notice, the court rejected plaintiff's argument that the school's notice of a gang rape problem in general should suffice.  The plaintiff's other argument, that the school also responded to her own rape with deliberate indifference, continues to be litigated.  The remaining claim could potentially result in damages attributable to the school's indifferent response, which itself could have been the source of some independent emotional distress. However, the dismissed claim was likely considerably more valuable to the plaintiff, as it would have made the school liable for damages arising from the rape itself.   Doe v. Bibb County Sch. Dist., 2015 WL 403320 (M.D. Ga.  Jan. 28, 2015).

Sexual Harassment Roundup

Here are summaries of some recent Title IX sexual harassment cases making their way through the courts:

The 11th Circuit Court of Appeals affirmed a decision dismissing a case against a school district deriving from a female teacher's sexual harassment and abuse of a 13-year old male student.  The court determined that the Principal did not have notice of the ongoing harassment nor other signs that the student was at risk.  The Principal, Whatley, did know of past complaints against the teacher, Elizabeth Gaddy, that she had crossed boundaries with students by sending them text messages, but the court rejected that this was sufficient notice of potential sexual misconduct.  The court also summarized all of the other things that the Principal knew about, before determining that that the plaintiffs did not satisfy the notice requirement for a harassment case under Title IX:

Whatley knew about complaints from teachers and parents that Gaddy was constantly sending O.K.K. [the student-victim in this case], and other students, text messages. He knew that Gaddy bought Christmas gifts for O.K.K. that J.F.K. [the victim's parent, the plaintiff] thought were inappropriately expensive, and that Gaddy took O.K.K. home in her car against J.F.K.'s wishes. He knew that Gaddy had been shopping for a baseball uniform despite having no sons. He knew that Gaddy and O.K.K. had been seen sharing a towel at a pool party and spending time alone inside the house, and later sharing a blanket with their legs touching on Gaddy's sofa. He also knew that Smith thought that Gaddy was too fond of O.K.K. and that another student's parent worried that Gaddy was “possessive” of O.K.K. by not letting any other girl “like” O.K.K. but her daughter. He knew that several parents, including those of cheerleaders, were complaining of Gaddy's excessive involvement in their children's lives and that Gaddy called some female students inappropriate and offensive names. He also knew that O.K.K.'s parents wanted Gaddy to stay away from him, although they told him they did not believe anything was going on between O.K.K. and Gaddy. It appears clear to this court that Whatley knew Gaddy's conduct was inappropriate, devoid of professionalism, and reeked of immaturity; however, despite this, her known conduct was not of the same type of conduct of a sexual nature.

Thus, it seems that in the 11th Circuit, the bar for actual notice is quite high, even in cases  involving harassment by teachers as opposed to fellow students.  J.F.K. v. Troup County Sch. Dist. 2012 WL 1538370 (11th Cir. May 3, 2012). 

Elsewhere, a federal court denied a school district's motion to dismiss a case involving claims of sexual harassment by a high school teacher.  The court agreed that a genuine issue of material fact existed as to whether the school district was on notice that a particular teacher posed a risk of harm to students, including the plaintiff, whom the teacher locked in the computer lab and attempted to touch in a sexual manner.  Earlier in the school year, the principal received a report that the teacher had touched another student's leg inappropriately, and responded to this report by reporting the matter to Child Protective Services, which did not take further action.   The Principal did not initiate an internal investigation, other than to keep a closer eye on the teacher in question.  Then, the Principal went on leave, without sharing his suspicions of the teacher with anyone else.  The incident computer lab incident involving the plaintiff occurred during this time. On these allegations, the court determined that a jury could find that the school district had sufficient notice to which it failed to adequately respond, so the court refused to dismiss the case and will instead let it proceed to trial.  C.B. v. Tibbetts, 2012 WL 1448308 (D. Ind. Apr. 26, 2012).

In another case, a court denied a plaintiff a preliminary injunction ordering the defendant school district to transfer her to a different high school outside of the school district, which the plaintiff was seeking as a response to sexual harassment and assault by other students she had suffered in her present school. The court determined that the plaintiff failed to demonstrate a likelihood of success on the merits of her case because school officials had responded to incidents about which they were made aware.  In particular, after learning that the plaintiff had been sexually assaulted by other students on two occasions in the past (a year prior, and a year-and-a-half prior, respectively) district officials responded by taking immediate steps to ensure the student's present safety, including making sure that the student did not have classes with either perpetrator.  Five months after this report, school officials worked with the plaintiff's parents to file a formal grievance with the school district's Title IX officer. That triggered an investigation in which both alleged perpetrators, along with other potential witnesses, were interviewed. The investigation did not produce sufficient evidence to warrant expelling either student.  But the district did provide or offer numerous other accommodations to the plaintiff, including counseling and that a school employee "shadow" the plaintiff to address her concerns for safety, were offered to the plaintiff.  Emphasizing that the law does not require school districts to  provide a particular response, just a reasonable one, the court denied the plaintiff's request for a preliminary injunction requiring the school to transfer her out of district. K.F. ex rel. C.F. v. Monroe Woodbury Cent. Sch. Dist., 2012 WL 1521060 (S.D.N.Y. Apr. 30, 2012). 

Title IX Litigation in Montgomery County, Georgia

From a reader, I learned of a Title IX retaliation suit that was filed in federal court recently against the Montgomery County (Georgia) Board of Education. The plaintiff, Christopher Bowman, was a teacher at Montgomery County High School until he was fired, he alleges, because he provided evidence to state officials of a sexual relationship between the guidance counselor, Carrie O'Connor, and a 16-year-old male student. Soon after cooperating in the state's investigation of the charges against O'Connor, Bowman was informed by the district superintendent of his termination -- ostensibly, for "insubordination." Incidentally, the superintendent, Dale Clark, is also O'Connor's mother. Bowman alleges that Clark also sabotaged his efforts to find employment with other school districts in Georgia.

Though a jury recently cleared O'Connor of criminal charges due to insufficient evidence to substantiate the victim-student's claims, this will not have an affect on the legal arguments in Bowman's suit. That is because Title IX protects whistleblowers who reasonably believe that a violation of the statute -- here, severe and pervasive sexual harassment -- has occurred. Otherwise, whistleblowers would only come forward if they were absolutely certain that a violation had occurred, which is to say, hardly ever.

Bowman's suit is not the only Title IX case arising out of this circumstance. The victim's mother has also sued the school district, claiming among other things that the district violated Title IX in failing to protect her son from the guidance counselor's sexual conduct, which could qualify as severe and pervasive harassment under Title IX. Though the outcome of O'Connor's criminal trial -- especially the fact that the jury returned its "not guilty" verdict within 30 minutes -- casts some doubt on the viability of this case, it does not necessarily foreclose it as a matter of law. The plaintiff need only prove that it's more likely than not that the sexual misconduct occurred, where the state had to prove it beyond a reasonable doubt.

School's Response to Teacher's Sexual Misconduct Did Not Violate Title IX

A teacher in Georgia showed students digital pictures of his genitals, but a federal district court concluded that the school's response was sufficient to forestall liability under Title IX.

In February 2005, a teacher at Lamar County High School overheard students discussing that their history teacher, Tyshon Byrd, had shown them pictures of genitals that were on his cell phone. The teacher informed the assistant principal, who informed the principal. For one week, the principal investigated the charges against Byrd, interviewing both the students whom the teacher had heard, as well as a number of students from Byrd's class who were selected at random. (The principal also attempted to discover whether there were in fact inappropriate pictures on the Byrd's cell phone, but such evidence was not found.)

Based on the students' consistent reports, the principal held a meeting where students presented their charges in the presence of Byrd and other school officials. Byrd was subsequently terminated.

A lawsuit was then filed by some of the students who had seen the photos. However, the court determined that, prior to the learning of the digital photos, the school district did not have actual notice of that Byrd posed a sexual threat. Moreover, the district's response --investigating the students' claims for one week, and then terminating Byrd after confirming the students' story -- was not deliberate indifference required to satisfy the standard for liability under Title IX.

This case clearly illustrates how tough the deliberate indifference standard can be for plaintiffs, as it seems to me pretty unreasonable to leave a teacher in the classroom as credible evidence confirming his sexual misconduct began to mount. In fact, I wonder if the court thought the plaintiffs' harm -- "only" being subjected to the anxiety of remaining in a teacher's classroom after being subjected to photographs of his genitals -- was trivial, and let that assessment cloud the question of liability. Of course, this anxiety could be emotionally damaging to students, especially to those with a sexual trauma history, as my psychologist friend points out. But to more clearly illustrate the point: what if the Byrd had sexually assaulted a student after the principal's week-long investigation had begun and before he was fired? Would the court have been more likely there to conclude that the principal's decision to leave the teacher in the classroom for that whole time amounted to indifference? If so, there should be no different result here on the question of liability, only, perhaps in the assessment of damages.

Decision is: Brown v. Lamar County School Dist., 2008 WL 4500135 (M.D.Ga. Sept. 30, 2008).

Private School League Benches Female Kicker

Via New Moon Girls blog, I found this story from ESPN.com about Kacy Stuart, a female freshman at New Creation Center, a private high school near Atlanta, who was recently dismissed from her position as kicker for the school's football team, after a ruling by the private school conference to which New Creation belongs.

The article points out that Kacy had no trouble playing football when she attended public middle school, but it is wrong (sorry, NMG blog!) to credit Title IX for Kacy's public school football career. Since football is a contact sport, Title IX does not require schools to allow girls to try out. Rather, it is the Constitution's Equal Protection Clause that has in many cases required schools and other public entities to give girls equal access to football and other contact sports. But the trouble for Kacy is that the Equal Protection Clause does not govern private schools, so the Georgia Football League can discriminate all it wants.

This case is a good example of why Title IX's contact sports exemption is harmful and should be repealed. When it comes to private schools -- at least, those private schools that accept federal funds in some form, as many do -- Title IX is the only source of federal law that prohibits discrimination against students on the basis of sex. Thus, the statute should be comprehensive in its coverage of sports, and not exempt football due to some outdated, essentialist idea that it is categorically inappropriate for girls.

ACLU Wants Greene County Segregation Plan

The ACLU is invoking a state open records law to request a copy of the plan to segregate schools by sex that Greene County, Georgia, abandoned last month. Because the county indicated that it would go forward with this or a similar plan in the future, the organization is concerned that the county is relying on stereotypes and "questionable 'brain science' theories that suggest that boys and girls should be treated radically differently." The ACLU points out that there is no scientific consensus that single-sex education is beneficial to students, something recognized even by the Department of Education, whose regulatory change in 2006 paved the way for single-sex public education.

I'm glad that the ACLU is requesting the plan. If, as they suspect, it contains a demonstrably false or questionable scientific premise (or no premise at all), it will raise awareness about the absence of critical thinking around this issue.

Georgia County Backs Off Single-Sex Education Plan, For Now

Last month we posted about Greene County, Georgia, and its plans to convert all of its public schools to a single-sex model.

Recently, however, the County changed its mind, and will formally withdraw those plans at an upcoming meeting. According to the AP, the County faced "a groundswell of opposition from parents who were outraged that they weren't consulted ahead of time." This leaves open the possibility that the County might reinstate its plan, or some other version of the plan, after it receives input from parents and teachers.

Of course, the parents might really be outraged, not that they weren't consulted, but that the County is trying to pigeonhole their sons' and daughters' attitudes and behaviors based on gender stereotypes. In that case, their buy-in might be hard to come by.

UPDATE 4/1: The link to the AP story above is no longer working, but other news outlets reported on Greene County's change of heart, see here and here.

Entire Georgia County Moves to Single-Sex Schools

Even the National Association for Single Sex Public Education thinks that Greene County, Georgia, is going too far in its plan to convert the entire district to single sex schools by next fall. Hundreds of school districts have incorporated single-sex education into their curricula since the Department of Ed made it legal in 2006, but this is the first time the practice has been implemented county-wide.

The superintendent says the move is necessary to improve test scores and graduation rates and to reduce pregnancy and disciplinary problems in this poor, rural school district. But NASSPE's Leonard Sax told the Atlanta Journal-Constitution that the county's move was likely illegal, since parents must also have the option of a public coeducation as well. He further described Greene County's action as "embarrassing" and "the worst kind of publicity for our movement" because it "misses the whole point" of creating a single-sex alternative to coed classrooms so that parents can choose what's better for their children.

I think, of course, that the district's policy is extremely troubling. As I've said before, I'm skeptical of the claims of benefits from single-sex education and I think that schools should raise test scores and graduation rates in other ways that don't rely on and promote the myths that all boys learn one way and and all girls learn another way. I think the fact that NASSPE finds itself now in the position of arguing against single-sex education proves how dangerous it is to promote the difference theory. Of course our culture, susceptible as it is to a hegemonically-induced mythology of natural gender differences, would hear an argument that some classrooms should be segregated and generate from that the belief that sex-segregation is a magic bullet for all educational challenges in all educational settings. How did NASSPE not foresee that?

Does your AD know Title IX?

I was going to let this editorial in an online news source out of Athens, Georgia go unremarked upon despite the egregious misinterpretations of Title IX the author presents. Initially I thought the author to be perhaps a naive student journalist or an uninformed community member/fan. But this piece was written by former University of Georgia senior athletic director Dick Bestwick, who is also a former football coach.
So it is not surprising to hear him say, as many football coaches have and continue to do, that football should be exempt from the Title IX equation. In other words, they support proportionality so long as you don't have to count one of the teams. I don't think I have to really point out here that this sets up football players and programs as somehow "more equal" than everyone else--men and women.
But I was most surprised at Bestwick's interpretation of proportionality as a policy that mandates distribution of opportunities and money based on the gender breakdown of the undergraduate population. Proportionality is a policy that applies only to one aspect of Title IX compliance: accommodation of interests and abilities. How much money is spent is another category that is not subject to a proportionality standard. There is no formula for determining which gender or which team gets how much money, but there is a standard of equity that allows investigation into budget line items that seem to be providing greater benefits to male athletes over female athletes.
In other words, equipment budgets do not have to be equal for men and women so long as everyone is receiving the same quality of equipment. But there are areas where monies need to be distributed equally. For example, per diems need to be the same for male and female athletes--though the overall amount spent on a team will of course differ based on the size of the team.
That someone (formerly) in sports administration at a big-time athletics school does not know the difference between proportionality and equitable budgeting is worrisome.

Eleventh Circuit Again Addresses UGA Gang Rape Case

Tiffany Williams alleges that in 2002, she was gang-raped by several members of the University of Georgia football and basketball teams. The athletes, Tony Cole, Brandon Williams and Steven Thomas, were indicted but not convicted of criminal charges. While they were suspended from their respective teams (after or near the end of their college careers), the university did not levy other sanctions against them because by the time judicial hearings were held, the athletes were no longer enrolled.

Williams brought charges under Title IX against the University of Georgia, the University of Georgia Athletic Association, and a number of individuals including the University President, the UGAA President, and the coach of the men's basketball team. A district court granted the individual and institutional defendants' motion to dismiss. But, last year, a three-judge panel of the Eleventh Circuit Court of Appeals partially reversed the district court, ordering it to reconsider plaintiff's Title IX claims against UGA and the UGAA.

In a rather unusual move, the same panel decided Friday to "vacate[] [this] prior opinion in its entirety" and substitute a new opinion in its place. By way of explanation, the panel says, "While the Court reaches the same result, we address certain claims more fully."

The newly substituted decision indeed reaches the same result and remands the Title IX claims against UGA and the UGAA to the district court. But the decision puts greater emphasis on the legal test for liability based on deliberate indifference. Interpreting Supreme Court decisions in Gebser and Davis, that panel states that institutional liability under Title IX for acts of sexual harassment requires (a) an act of discrimination against the plaintiff, (b) to which the University responded with deliberate indifference, which (c) exposed the plaintiff to further discrimination. The court clarifies that, if proven at trial, the fact that the university decided to recruit Cole (whom Williams alleges had orchestrated the rape) even though it had knowledge of his prior sexual misconduct constitutes an initial act of discrimination against Williams. Next, the fact that the University had not responded to suggestions by student-athletes that the UGAA needed to do a better job informing all student athletes of the sexual harassment policy would constitute deliberate indifference to that initial act of discrimination. Finally, this indifference exposed Williams to further discrimination, the alleged rape incident itself.

The court further clarifies that the rape incident itself is also (a) an act of discrimination, to which (b) the university responded with indifference, that (c) resulted in more discrimination.
The court agreed that the university's decision to wait until the alleged rapists were no longer enrolled to conduct a judicial hearing was an inadequate and indifferent response to the allegations of rape. This resulted in further discrimination against Williams because it effectively denied her an opportunity to continue to attend UGA.

As the newly-clarified decision emphasizes, the fact pattern in this case is not the typical deliberate indifference scenario because pattern of discrimination-indifference-discrimination occurs twice. I think the court probably felt it was important to clarify the separate liability theories in case Williams is unable to prove some of the alleged facts at trial. In that case, the trial court would still have to consider whether the other facts alleged established liability on their own.

Gender-Neutral Bathrooms and Title IX

Today I read (here) that the University of Georgia has joined the growing list of colleges and universities and other public places to designate one or more "gender-neutral" restrooms. The impetus for UGA's decision was a desire to accommodate transgender and transexual students, for whom gender-specific bathrooms can be uncomfortable, hostile spaces. Gender-specific bathrooms also present an unsatisfactory, limited set of options for those who don't identify with either label on the door.

Does Title IX have anything to do with the increasing accommodation of these students? I think the answer is yes, though not directly.

First, while Title IX has been the impetus for "potty parity" in education buildings (for example, ensuring that there are sufficient women's restrooms in college buildings) I could find no evidence that plaintiffs have argued that a lack of access to gender-neutral bathrooms in federally-funded schools violates Title IX. This is probably because the courts are unsure when and whether to treat discrimination against transgender plaintiffs as sex discriminaton under federal civil rights laws. For example, several courts have rejected transgender employees' sex discrimination claims under Title VII, with the notable exception of the 6th Circuit's decision in Smith v. City of Salem. (See generally this helpful summary published by the American Constitution Society). A transgender plaintiff seeking to challenge the lack of effective access to restrooms as a violation of antidiscrimination law would have better luck under state and local laws, which in some jurisdictions prohibit discrimination on the basis of gender identity as well as sex.

Title IX does, however, require colleges and universities to take reasonable steps to protect students from sexual harassment at the hands of teachers and peers. Administrators might reasonably anticipate that a biological female student identifying or presenting as male, or biological male student identifying or presenting as female, is at a high risk of harassment in either gender-specific bathroom, depending on the circumstances. At least one court has held that Title IX protected a transgender (MTF) plaintiff against direct sexual harassment by a professor, see Miles v. NYU, 979 F. Supp. 248 (SDNY 1997). Thus, risk averse colleges and universities might decide to designate a gender-neutral bathroom as a way to preempt or curb existing harassment in order to avoid liability. (For more on Title IX and transgender plaintiffs, see Leena D. Phadke's comment in the Kansas Law Review.)

Another possible connection between Title IX and gender-neutral bathrooms takes into acount the advantage of gender-neutral bathrooms to a different potential constituency. Parents, especially fathers, might wish to avoid gender-specific bathrooms when taking care of their opposite-sex children. Title IX and other antidiscrimination laws have helped generate awareness about the harm to women done by institutional presumptions that only women are responsible for child care.

In sum, I note that neither the state of Georgia, the city of Athens, nor the University appear to prohibit discrimination on the basis of gender identity. This seems to suggest that to the exent UGA's bathroom decision was influenced by any applicable antidiscrimination law, Title IX indirect relationship to gender-neutral bathrooms is the only possibility.