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). 

Sexual Assault Litigation Update

Numerous Title IX lawsuits have been filed recently, with claims stemming from incidents alleged to involve sexual harassment and sexual assault:

• A female student has sued James Madison University for failing to adequately discipline three fellow students who sexually assaulted her during a spring break trip and then circulated a video of the incident among the student body.  She alleges that the university violated Title IX by delaying the disciplinary process for over a year before finally handing down suspensions that will not kick in until the offending students have graduated.  JMU is facing an investigation by the Department of Education into this same matter, as we have earlier noted. 

• A male graduate of Boston College has sued his alma mater for disciplining him for sexual assault while he was a student.  He alleges that the institution did not provide a fair hearing before finding him responsible for sexual assault and suspending him for three semesters.  The student eventually graduated and unsuccessfully prevailed upon the Boston College to reexamine his case.  The lawsuit seeks $3 million in damages.  

• Parents of a fifth-grade student in Grand Rapids, Michigan, have sued the school district for suspending the boy for ten days for sexual harassing comments and gestures that he allegedly made, and for expelling him after he allegedly touched a female student inappropriately.  The lawsuit alleges that school officials violated the boys' right to due process by not determining in either incident whether the accusations were accurate before taking disciplinary measures against him.  

• A Harvard University professor has sued the institution, alleging that she was denied tenure in retaliation for criticizing its handing of sexual assaults. The plaintiff, anthropology professor Kimberly Theidon, alleges that she was warned that speaking out would hurt her during tenure review; she also claims that she quickly turned from someone who was assured tenure into someone being denied tenure once she began advocating for sexual assault victims. 

• A male student alleged to have sexually assaulted a female graduate student at Stony Brook University, has sued his accuser for defamation and seeks damages of $10 million.  We have already blogged about the accuser's suit against Stony Brook, in which she alleges that the university mishandled her case before finding him not responsible.  She has also sued him directly.

Government Files Brief in Support of Transgender Student's Title IX Lawsuit

The U.S. Department of Education, acting through the Department of Justice, has filed a brief in support of a transgender student's lawsuit against his Michigan school district.  The student, a sixth grader in the Wyandotte public schools, alleged that school officials refused to refer to him by his male name and pronoun or allow him access to the boys' bathroom, and did not intervene to protect him from the harassment of his peers. 

The government's brief (officially a "statement of interest" as the government is not a formal party to the litigation) argues that Title IX is applicable to his case.  Though the statute by its terms limited to sex discrimination, the government urges the court to interpret sex discrimination to include discrimination on the basis of gender nonconformity, gender identity, and transgender status, as other courts and federal agencies have done in applying sex discrimination provisions of other antidiscrimination statutes such as Title VII. Importantly, the government emphasizes that any of these grounds may be the basis of a sex discrimination claim.  This is important because gender nonconformity, while the least controversial and most precedent-supported theory of sex discrimination, without more, would likely provide this plaintiff incomplete relief.  Specifically, it may not support his right to use the male restroom -- because when the school refuses to treat him like the other boys in that regard, they are discriminating against his status as a transgender person or someone with a transgender gender identity, not because he doesn't dress or act like a stereotypical member of his natal sex (female). Thus, it would be most helpful to this plaintiff -- and other transgender plaintiffs future -- for the court to endorse the government's broader interpretation of sex discrimination, one which would allow Title IX to serve the basis for challenging discrimination targeting a student's gender identity or transgender status. 

Another Litigation Roundup

Here are some updates in various cases where Title IX is being used to challenge sexual harassment and sexual assault in high schools:

• In Michigan, a former student has filed a Title IX lawsuit against the Traverse City Area Public Schools, alleging that the school district was indifferent to harassment and retaliation he faced after reporting that a teacher had engaged him in oral sex and had been sending him sexually explicit text messages.  (The teacher was later criminally convicted.) 

• In a similar matter, a federal judge in Pennsylvania refused to dismiss a mother's claim against the Susquehanna Township School District challenging the hostile environment her daughter faced after police arrested the principal for having sex with her daughter, a 16-year-old student. (The principal has plead guilty.) 

•  In yet another matter involving teacher-student harassment, a court refused to dismiss a student's case against the Seattle School District where the student alleged that she reported the teacher's harassing comments, stares, and touches to the principal, and that the principal did not follow up in any meaningful way, allowing the teacher's conduct to escalate to more egregious physical contact.  R.P. v. Seattle Sch. Dist., 2015 WL 418001 (D. Wash. Jan. 30, 2015).

• The State Board of Education in Hawaii will have to continue to defend a lawsuit arising out of the repeated instances of rape of a female special-needs high school student by one of her male special-needs peers. In rejecting the state's motion to dismiss, the court agreed that the plaintiff adequately alleged that school officials failed to supervise the male student even though they were on notice of the fact that he had attacked the female student off campus, and that the lack of supervision provided the male student the opportunity to rape the female student in a coed bathroom on campus.  Kaukaho v. State Bd. of Educ., 2015 WL 470230 (D. Ha. Feb. 3, 2015).

OCR finds fault with Forest Hills

We recently wrote about a lawsuit filed by a student who attended school in the Forest Hills School District (in Michigan).
The sexual assault at the center of this lawsuit also prompted a complaint to OCR which has investigated Forest Hills and found that the district did not properly investigate the claims of two female students who alleged sexual assault at the hands of a single assailant. Also, procedures to address allegations of sexual assault and harassment are inadequate, the agency determined.
The superintendent is taking issue with OCR's report. He has stated that investigators never interviewed him or the Title IX coordinator.

More Sexual Assault Complaints Filed

On the heels of yesterday's report that 12 students at Swarthmore collaborated on a complaint challenging the inefficiencies of the university's response to sexual assaults on campus, today brings news of an even larger effort to expose similar problems at Occidental College in Los Angeles.  The Department of Education received a complaint against Occidental containing accounts by 37 students and alumni of the college's mishandling reports of sexual assault, including by seeking to deter victims from reporting, dragging out the disciplinary process, and allowing guilty offenders to remain in school.  Several of the students involved in the complaint made public statements yesterday, coming forward about their own experiences in an effort to raise awareness about what is starting to look like a national epidemic of suppression of campus sexual assault.  

In related news, a former high school student in Michigan, represented by the National Women's Law Center, filed a lawsuit in federal court yesterday, alleging that the Forest Hills School district in Michigan violated Title IX by responding indifferently to her allegation of sexual assault against a male student athlete in 2010. The lawsuit alleges that school officials sought to deter the victim's parents from reporting the assault to the police (which they did anyway), failed to investigate her claim, delayed changing the alleged attacker's schedule to remove him from the victim's schedules, and failed to protect her from harassment by other students who supported the alleged attacker.  During this time, a second female student complained of an assault by the same male student.  Yet, according to the complaint, the school district failed to investigate that report as well.   Police eventually charged the student with two counts of criminal sexual assault, and the student pled guilty to reduced charges.  Yet the school district's only response was to temporarily suspend him from the basketball team.  The lawsuit seeks damages to compensate the plaintiff for emotional distress, as well as injunctive relief that would require the school district to improve its prevention and response to sexual assault. 

Michigan high school softball field controversy

The girls' softball team in Avondale, Michigan is embarrassed by the condition of their field. And the players and their supporters are wondering where the money earmarked for the facility's improvement have gone--as they stare at the newly renovated boys' baseball facility that has a dedicated field for the junior varsity team. And even as they ask questions about where the promised improvements are, many know nothing will happen in the immediate future. So the girls are working with administrators on an arrangement that would allow the softball team to share the JV team's field. (Not sure how they will deal with the differences in the field dimensions, but I would imagine they have a plan.)
Best line of the article:
At the very least, Avondale made a mistake in timing. After all, shortchanging a female team on the 40th anniversary of Title IX isn't the best way to win plaudits from equal opportunity advocates.

Cheer Team DQ'd for Having Male Member

As reported in the Bleacher Report, a high school cheerleading squad in Michigan was retroactively disqualified from a competition for violating a league rule banning male athletes from female teams. The article goes on to criticize the Michigan High School Athletic Association, which governs competitive cheer and other sports in the state of Michigan, for employing a double standard, because girls are allowed to try out for boys teams at schools that do not offer a girls team in a particular sport.

As the article points out, MHSAA defends its rule by arguing that it's necessary to preserve athletic opportunities for those whose opportunities have historically been limited. Clearly MHSAA is invoking the Title IX regulations here, which provide that when a school "sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport." In other words, to have the right to try out for a cross-sex team, you have to be a member of sex whose athletic opportunities have previously been limited, and the sport in question is not a contact sport. There's no question that cheer is not a contact sport, but the other limitation to the cross-over exception clearly applies -- girls in Michigan have previously, and continue, to be underrepresented in athletics.

MHSAA's policy is not only legal under Title IX, it also does not qualify as a double standard, as the article claims. A double standard is when you extend different privileges to similarly-situated groups. When groups are not similarly situated, different treatment may be warranted. According to last year's participation report by the National Federation of High School Associations, there were 133,000 opportunities for Michigan high school girls compared to 181,000 opportunities for Michigan high school boys. With girls receiving only 42% of high school athletic opportunities in Michigan, it's not a double standard to say that girls, but not boys, can try out for cross-sex teams.

But even though MHSAA's policy is legal under Title IX, and deflects the charge of "double standard," I still would prefer participation rules that promote, rather than limit, cross-sex participation in sports. I think that girls and boys playing more often together, rather than apart, can ultimately contribute to breaking down gender stereotypes that are perpetuated when segregation is maintained. Schools need to address the gender disparity in opportunities, that is true. But rather than doing so by excluding boys from "girls" teams, the better approach is to commit to adding as many opportunities as it takes to match girls' interest in athletics, whether that be more freshman and JV teams in sports that girls already play, adding new girls' teams in sports that girls don't yet but could be interested in playing, and being more inclusive of girls on boys teams in sports where it is not feasible to add a girls' team.

Ann Arbor No Longer Plans to Exempt Football from Cuts

This post follows up on a story we blogged about in June, about a budget reduction plan by the Ann Arbor School District to cut all the freshman teams at its three high schools, with the exception of the freshman football teams. As we explained back then, there was in our minds no way a school district could make such a move, especially coupled with some other cuts that affected more girls' teams than boys', and still comply with Title IX.

I recently learned via personal correspondence from someone connected to the matter, that someone filed complaint with OCR to challenge the cuts, and that OCR commenced an investigation. I further learned that the complaint was eventually withdrawn upon assurances from the school district that it would not put that particular reduction plan in place. I don't know what Ann Arbor decided to instead to balance its budget, but hopefully its interaction with OCR resulted in cuts that were equitable between girls and boys.

Football Exempt from School District's Decision to Cut Freshman Teams

I'm not sure how this can NOT be a Title IX violation: the Ann Arbor school district is cutting all freshman teams at its three high schools except football. In all other sports, freshman will be able to try out for existing junior varsity and varsity teams, but there will be no teams reserved exclusively for them. Budget cuts explain the district's decision to slash freshman sports. The reason they are saving freshman football is that "safety issues are a major concern" if freshman are allowed to compete on J.V. team. What? Excuse me while I parse this pretext. Even if it were the case the freshmen boys are so distinctly different from sophomore or junior boys in terms of size or skill that it would raise "major safety concerns" to have them play together, why doesn't this difference carry over into other boys and girls contact sports? Why isn't it a major safety concern to have freshmen on the J.V. lacrosse or hockey teams? And finally, if it's a problem to allow freshman boys to compete on the J.V. team because of safety, hold a tryout and only let the kids on the J.V. team who are big enough and skilled enough to hold their own. After all, that's the standard that is being applied to all the other sports. Safety, yeah right. This is clearly a case of football once again getting special treatment at the expense of girls' and other boys' sports.

And, as I said at the outset, I can't see how this isn't a Title IX violation. Even if Ann Arbor high schools were proportionate before, they certainly can't be now that they have eliminated more freshman girls' opportunities than they have freshman boys'. And of course, cutting girls' opportunities makes it difficult to claim compliance under prong two, and the interest and ability is clearly there and now unmet due to the cuts, making it impossible to claim compliance under prong three.

What's more, the article linked above says that several sports are being demoted to "club" status, meaning they receive no school district funding. 7 girls sports will be affected by this new status at one or more of the three schools: lacrosse, bowling, J.V. field hockey, figure skating, cheer, dance, and crew. Only 3 boys sports will be: lacrosse, bowling, and crew. It is highly unlikely -- impossible I think would be fair to say -- that a school district that exempts football from freshmen cuts, and then takes out more girls' teams than boys' sports still manages to provide athletic opportunities proportionate to the gender ratio of the student body.

I don't envy the administrator who is forced to balance the school district budget on the back of student athletes. But as hard as that job is, there is no excuse for ignoring Title IX. These cuts need to be spread out fairly between boys and girls and ensure that even if the pie is getting shrunk, boys' piece and the girls' piece are still the same size.

[Thanks, D.R.]

Michigan adding lacrosse

Lest we think that all schools are in financial crises and being forced to cut sports...
University of Michigan has announced that it will be adding men's and women's lacrosse to its list of intercollegiate sports. Both teams are currently club sports at the school. Interestingly the men will be upgraded next year and the women will achieve varsity status in 2012. Not sure what the reasons are behind this timetable. Perhaps it has something to do with facilities. Still, I have not seen any explanation of why the men before the women. (And I would expect, if the plan were reversed, to be informed as to why.)
Michigan is planning on adding, but does not currently have, a dedicated lacrosse facility.
The school is banking on data that reveal lacrosse is one of the fastest growing sports in the country.
Michigan is currently complying with the accommodations of interest and abilities by adhering to prong one. Women comprise just under half of the undergraduate student body (49 percent) and receive roughly 47 percent of the athletic opportunities. I assume the size of the respective teams will be about equal and thus the numbers will not change much.

Thanks for our new gym, Title IX!

I came across this article about the debut of a new gym at Lake Shore High School in Michigan. The new gym was added, according to the article, "because a Title IX legislation ruling that stated boys and girls seasons must be at the same time."
This made me pause. I didn't remember anything about Lake Shore High School.
But I went on to read about the great new gym that includes a commons area for concessions, where the game inside the gym can be simulcast, an NBA-sized court (which will make the school a prime site for post-season and tournament play), and a more secure entrance to the school. Sounds like some great improvements.
And no one has to practice at 10pm.
Then I remembered which "Title IX legislation ruling" the article was referring to: the very contentious--and very expensive--lawsuit against the Michigan State High School Athletic Association. So many people just refused to give any ground about--among other things--ensuring that girls played their sports in the traditional seasons. Costs, logistics, tradition, etc., etc.
Lake Shore High School clearly was one of the schools affected by the mandate to move girls sports to their traditional seasons. And now they have a new facility.
So in case no one else says it: Thank you, Title IX, for the sparkly new gym in Michigan with its indoor track, student store, and concession stand. We wouldn't have done it without you!

Sexual Harassment Litigation Roundup

Here is a roundup of news related to Title IX cases involving sexual harassment and assault:

• A former student at Arizona State has sued the Board of Regents claiming that the university failed to adequately protect her from a rape that occurred at a fraternity house.

• A district court judge set aside a jury verdict in favor of a Michigan student, who had sued the school district over its response to other students' perpetration sexual and anti-gay harassment. The case had been reinstated by the 6th Circuit after the district court dismissed on summary judgment. But considering new evidence presented at the jury trial, the district court judge held that the harassment was not severe and pervasive, but typical of middle school students, and that the school responded adequately by investigating each incident of harassment and punishing the perpetrators. See Patterson v. Hudson Area Schools, 2010 WL 2670167 (E.D. Mich. July 1, 2010).
  

• A district court in Indiana dismissed a plaintiff's case stemming from peer harassment because there was no support for plaintiff's claim the abuse was motivated by his gender nonconformity, only his perceived sexual orientation (which is not covered by Title IX). Turpin v. Good, 2010 WL 2560421 (S.D. Ind., June 24, 2010).
  

• A district court in Illinois dismissed a case in which a student challenged the university's response to his complaints about a professor's weird and inappropriate statements about the plaintiff's hair (the professor said that his hair would be sexy on a lady, and that if the plaintiff was a lady, he would want to date him). The court held that this did not constitute harassment based on the plaintiff's sex. The court also considered the fact that the professor harassed male and female students equally to cut against the plaintiff's argument that the harassment was motivated by his sex. Milligan v. Bd. of Trustees, 2010 WL 2649917 (S.D. Ill. June 30, 2010).
  

• A district court in Wisconsin denied a university's motion for summary judgment in a case arising out of a resident advisor's alleged assault on the plaintiff, a student, in her dorm room at the University of Wisconsin-Parkside. The court agreed that the plaintiff's complaint contained sufficient allegations -- including that campus officials waited three days before calling the police -- that could allow a jury to find the university liability under Title IX. Albiez v. Kaminski, 2010 WL 2465502 (E.D. Wisc. June 14, 2010).
  

Monetary award for victim of bullying

Last year we reported that a case of harassment previously dismissed by the lower court in Michigan was reinstated by the Sixth Circuit Court of Appeals. And late last week a jury awarded Hudson Area Schools to pay the plaintiffs $800,000.
It's a very good result given the rising incidents of bullying in (and out of) schools. Our original post notes some of the horrific incidents experienced by the plaintiff throughout his school years. (He is now 19.) The report of the jury verdict glosses over some of the nastiness in favor of commenting on the significance of the monetary award. The jury clearly decided that even though the school addressed the individual acts of harassment against the victim (the judicial system helped too--one assailant plead guilty to criminal charges) they did nothing to stop the pattern of harassment against the plaintiff.
We shall have to wait to see how this verdict affects other cases, pending and future. I am especially interested in how potential large jury awards might rouse some educators from their state of indifference.

Court Approves MHSAA's Agreement for Payment of Damages Award

The Michigan High School Athletic Association is on the hook for $6 million dollars after federal courts determined that its scheduling of girls' sports in the nontraditional seasons violated Title IX and the Constitution's Equal Protection Clause. MHSAA's various appeals kept the litigation going for over a decade, but the final chapter in this case closed last week when the district court approved the parties agreement over the details of MHSSA's payment of the damages and attorneys' fees to parents and their attorneys who filed the successful suit.

Here are the details of that agreement, as reported in the local press:

The MHSAA must pay $2.5 million immediately, and $550,000 before May 1 from this year to 2014. The final installment of $200,000 is due May 1, 2015. The association can pay off the balance early and receive a discount of up to 10 percent, or defer up to $250,000 over the first three years at an interest rate of 10 percent.

As part of the agreement, National City Bank has a first priority lien and Communities for Equity has a judicial lien on the MHSAA’s headquarters. The association is allowed to receive a loan of up to $750,000 from National City.

The MHSAA can’t sell any of its assets without Communities for Equity’s written consent, and the association can’t get out of paying by filing for bankruptcy.

This payment schedule, which gives MHSSA flexibility and time to pay off its debt and which also reflects a total liability that is reduced from the initial $7.4 million dollar attorneys fee award, likely reflects concern on all sides (see this prior post) that the damages award against MHSSA not bankrupt the organization to the detriment of the student-athletes and schools who benefit from its continued existence.

The financial deterrent effect

The initial threat levied against schools not in compliance with Title IX was revocation of federal funding.
It's a threat that has never been realized--never. As in never, ever.
But financial repercussions are certainly being felt by colleges and universities as we have noted in cases such Fresno State, University of Colorado, and Florida Gulf Coast University in which institutions pay out settlements or jury awards.
But high schools are also feeling the economic hit and in a time of budget cuts and tightening, being forced to pay attorney fees in addition to the costs of remedying the existing discrimination.
This is the situation that Ramona school district has found itself in. Parents sued the district in 2007 arguing that the softball team was not receiving equitable treatment under Title IX. The district has built a new field with amenities comparable to the baseball team--under the order of a federal judge. But the bigger cost--larger than the $200,00 on said field--is the court order to pay the legal fees the parents incurred, around $350,000. Ramona, like the rest of the state of California, is having some budget issues. They are being forced into discussions with the plaintiffs' attorneys about a payment plan. Perhaps the incursion of fees was part of the decision not to appeal the decision. Ramona may have taken a lesson from Michigan High School Athletic Association which was, as you may remember, ordered to pay the attorney fees from its lengthy battle against a parents group seeking equity in high school athletics.

6th Circuits Reinstates Plaintiff's Anti-Gay Harrassment Case

The Sixth Circuit Court of Appeals recently overturned a lower court's dismissal of sexual harassment case against the Hudson Area (Michigan) Schools. The plaintiffs sued the school district on behalf of their son, DP, who had suffered ongoing harassment from sixth through ninth grade. This harassment began with teasing, name calling (such as "queer," "faggot," "fat," "pig," and "man boobs) and defacing of DP's property and his locker with homophobic slurs and suggestive drawings. One one occasion, someone broke into his gym locker to urinate on his clothes and stuff his shoes in the toilet. Finally, in ninth grade, DP was sexually assaulted by a fellow student and baseball teammate, LP, who forced DP into a corner, jumped onto his shoulders, and rubbed his genitals on DP's face and neck. Another teammate blocked the door so DP couldn't leave. Later, their coach warned the team about joking around "with guys who can't take a man joke" and let LP attend the team banquet one week later. (LP later plead guilty to criminal charges and was expelled.)

The school district argued (persuasively to the lower court) that it responded adequately to individual incidents of harassment. None of the students who received warnings and verbal reprimands bothered DP again. However, the Court of Appeals recognized that that school officials could still exhibit the requisite "deliberate indifference" on these facts. School officials could have realized that their approach -- dealing with harassment of DP one offender at a time -- was not stemming the tide of increasingly violent harassment and assaults more generally. And failure to take a different course of action in light of this realization might constitute an unreasonable response. As the court put it, "even though a school district takes some action in response to known harassment, if further harassment continues, a jury is not precluded by law from finding that the school district's response is clearly unreasonable." Moreover, it continued "[w]e cannot say that, as a matter of law, a school district is shielded from liability if that school district knows that its methods of response to harassment, though effective against an individual harasser, are ineffective against persistent harassment against a single student. Such a situation raises a genuine issue of material fact for a jury to decide."

This is an important clarification of the deliberately indifferent standard; it recognizes that while harassment can consist of discrete, isolated instances, addressing all harassing conduct as such may be unreasonable when doing so manifests indifference to a widespread, ongoing, systematic harassment by the victim's peers in general.

Decision is: Patterson v. Hudson Area Schools, 515 F.3d 438 (6th Cir. 2009).

Discrimination hurts

And the hurt is going to be felt most acutely by the Michigan High School Athletic Association which was recently ordered to pay the legal fees associated with its decade plus-long battle against a group of parents who, among other things, asked that girls' sports be played in their correct seasons. A federal judge has ordered the association to pay $7.4 million in attorney fees, most of which will go to lawyer Kristen Galles who represented what became Communities for Equity.
I do not want to belittle the concerns that the judgment will potentially bankrupt the organization (depending on what kind of payment agreement Galles and MHSAA reach) which will ultimately hurt student-athletes. But readers should not forget that MHSAA had the chance to work out a settlement that would have exempted them from attorney fees. It chose to continue the 12-year battle (which cost them over $10 million) saying that it had enough money to keep fighting. They have caused a significant amount of hurt themselves in perpetuating discrimination.
It will be interesting to see one, what comes of this particular situation, and two whether this judgment has an effect on the thoughts and actions of groups that keep fighting losing battles (a court ruled against MHSAA as early as 2001) to maintain their discriminatory practices.

Top ten of 2007

[This was promised two days ago but, well, it just didn't happen. Please don't hold it against it us. We promise it does not an indication of a pattern in the new year.]

Below are what we saw as the top ten Title IX stories of the year. As Ebuz noted to a reporter from Inside HigherEd not too long ago, it was a good year to be a Title IX plaintiff. You will see this reflected below, but other events were pivotal as well. The list is in no particular order--we could say it's because we here at the Title IX Blog don't like to hierarchize, but really it's impossible to figure out what was the most significant story of the year. There were so many times this year we just found ourselves saying to one another: "No way. Really?" And in a good way.

1. University of Colorado settles sexual harassment case with two former students who accused the university--now with a new president and athletic director--of failing to do enough to remedy the situation with football recruit parties that lead to their sexual assaults. We expect to see a very positive ripple effect from this case in future sexual harassment cases.

2. All things Fresno State. Three cases of discrimination, three wins (we consider settlement a win in this situation). Great record for Title IX--not so good for Fresno State, California taxpayers, and university president John Welty who we predict (because it is the time of year for making predictions) will not make it through 2008 in his current position. We also predict that as exciting as Stacy Johnson-Klein's $19.1 million jury award was--it will not stand up. We expect a reduction in the amount and hope Fresno does not push for a new trial. And though the cases of Lindy Vivas, Diane Milutinovich and Johnson-Klein seem to have reached the denouement, don't expect 2008 to be a good time for Fresno State. An assistant in the athletic department filed a discrimination suit at the end of 2007. We will have to wait and see what Fresno learned this past year as they approach this new charge of discrimination.

3. The anniversary. 2007 marked the 35th anniversary of the legislation and it seemed every media outlet in the country (and beyond) covered it some way. It was all very celebratory and certainly we celebrated too, but much of this coverage failed to critically address the backlash against Title IX. Luckily there were plenty of opportunities this year to correct all the misinformation about the law that came from sports writers, non-sports writers, television commentators, bloggers, and people with all sorts of opinions. But the anniversary also provided a great opportunity for assessment and discourse about the future. We were excited to be a small part of this conversation not only on this blog but at events like the Girls and Women Rock Conference in Cleveland last April.

4. Jennifer Harris v. Rene Portland. The lawsuit got settled; the terms and gathered evidence were sealed, but we heard things here and there and read between the lines and generally were pleased. Then we were even more pleased when Portland resigned shortly after the season ended. Jennifer Harris deserves the utmost respect and many thanks for being the first person to stand up to Portland's racist, sexist, and homophobic behavior.

5. Florida Gulf Coast University. Pat Griffin has dubbed FGCU "Fresno east." Not a nickname you want to have hanging around your athletic department as it tries to become a more serious contender in DI athletics. What FGCU might learn from Fresno is hard to discern right now. The administration does not seem to think it is, in any way, in the wrong in its treatment of female coaches, very few of whom actually remain at the school. But just like their counterparts across the country, these women are fighting back. And they are making homophobia a more salient issue in the discussion of their treatment.

6. UNC's Anson Dorrance is going to stand trial for sexual harassment. This case has been ongoing for years, but in April, assuming no settlement is reached (which is a big assumption given the precedent that seems to have been set in 2007) head soccer coach Dorrance will finally have to answer for his treatment of his players and the sexualized atmosphere he created on the team.

7. Cheerleading. Yep. We wrote about cheerleading a fair amount this year given it is not even an NCAA-approved sport. This did not stop University of Oregon, though, from creating only the second varsity-level competitive cheer program in the country (after Maryland). The addition of a non-sanctioned sport alone would have created some controversy (as it has at UMD) but the decision to add competitive cheer just as Oregon was cutting wrestling (and simultaneously reinstating baseball) created quite a stir. Things may have settled a bit at Oregon but the issue of competitive cheer as sport that counts toward Title IX compliance is not likely to go away soon and, though it may not happen this year, I would not be surprised to see a lawsuit brought by a club sport player whose team did not get elevated to varsity status because cheerleading did.
The other big cheerleading news was at the high school level where most cheer teams are not considered sports but rather constitute support for sports teams. This means, under Title IX, if you provide such support to your boys' teams, you must do so for your girls' teams. This was the issue at hand in New York, when a mother of a female basketball player protested the lack of cheerleaders at the girls' games and their constant presence on the boys' sidelines. And despite our awareness of entrenched gender norms in this society, we were a little surprised at the backlash engendered by the mandate for equal amounts of cheering that seemed to stem largely from a general feeling that girls should not be cheering for other girls.

8. Softball fields. It is not much of an exaggeration to say that we found about a story almost every week about the condition of softball fields. Most came out of high schools, but a few were about college fields as well. Parents, players, concerned citizens have been filing complaints about how the inferior fields are a violation of Title IX. Why softball fields? They are a very tangible measure of compliance. Look at the baseball field; look at the softball field. Are there lights, concession stands, same level of maintenance, outright ownership, suitable dugouts, fences, bleachers, etc. on both fields? It is difficult to defend a softball field that is lacking in any of these things when the field used by the baseball team has them. And that is why so many softball fields across the country this year got some major face lifts.

9. Seasons of change in Michigan. It finally ended. The case against the Michigan High School Athletic Association ended last April when the Supreme Court denied the organization cert. This has meant that the lower court's decision that MHSAA was in violation of Title IX and the Equal Protection Clause in its scheduling of girls' sports out of their traditional seasons has stood. Michigan high schools have had to change their schedules accordingly. The controversy this case created was enormous and the incivility of the discussions was disheartening. We hope that 2008 is the proverbial calm after the storm and that everyone is working more willingly than not toward dealing effectively with the scheduling changes.

10. Boosters. Almost as ubiquitous as the stories about softball fields were the stories about booster club funds. Yes, money raised by booster clubs must be considered in the quest for equitable support of girls' and boys' teams. High schools in Pennsylvania and California are addressing and accounting for booster club funds right now. More stories like this and the other ones we covered this year are likely to emerge in the coming year.