Court Allows Student's Pregnancy Discrimination Lawsuit to Proceed

A federal court in Florida has refused to dismiss a lawsuit filed by a former student against Northwest Florida State College alleging that the institution's failure to reinstate her after a medical leave necessity by complications due to pregnancy violated her rights under Title IX. In reaching this decision, the court confirmed that indeed, Title IX's private right of action encompasses pregnancy discrimination claims.  The university had disputed this point by arguing that pregnancy discrimination is only covered in the regulations and not expressly mentioned in the statute, a factor that determines whether a plaintiff can file a lawsuit that seeks damages and other remedies for violations of Title IX. Nevertheless, the court concluded that pregnancy discrimination is included in the meaning of sex discrimination as Congress understood it when it enacted Title IX. For example, the court noted that Title IX's sponsor Senator Birch Bayh specifically mentioned pregnancy discrimination when describing the "social evil" Title IX was intended to address.  Additionally, though the regulations cannot themselves give rise to a cause of action, the fact that the Department of Education's predecessor agency interpreted sex discrimination to include pregnancy discrimination when promulgating Title IX's implementing regulations is an interpretation to which the court defers.

The court's sound reasoning in this case reminds me of the Supreme Court's decision in Jackson v. Birmingham School District, which similarly confirmed Title IX's private right of action includes retaliation claims even though retaliation is not expressly mentioned in the statute itself.  In that case as well the Court refused to impose an unduly narrow construction on the meaning of sex discrimination and affirmed Congress's intent to broadly address the issue.

Decision: Conley v. Northwest Florida State College, 2015 WL 7180504 (N.D. Fla. Nov. 12 2015).

Assailant given third chance

Less than a month ago I wrote about the prospect of former Oregon basketball player, Brandon Austin, being recruited by a school--the third of his collegiate career. Austin started at Providence College, was dismissed from that team for sexual assault then went to Oregon where he committed sexual assault again--in the form of a gang rape with other team members--and was again dismissed. Criminal charges were not filed in either case. And now he is going to a junior college in Florida to play ball. As I noted last month he was being wooed by a school in Kansas, but that school opted not to make him an offer.
Northwest Florida State College did. And administrators--unlike those at Oregon who claim ignorance--know of Austin's past. And they think they can help him. Said the head coach: "We have the experience, support and resources to help Brandon get back on track towards graduating and help him be a successful student athlete on and off the court."
We see professional athletes passed around teams after committing various crimes and misdemeanors. And though some of us know that this happens in intercollegiate athletics, there is less visibility. But I argue that there is more liability--for the school that takes on these athletes. Even if athletes such as Austin are not criminally charged, they have been disciplined by their schools (i.e., kicked off or suspended from teams). If the new school knows of that history and that athlete again commits sexual assault what kind of case would a victim have? It probably depends on the measures the school takes when the student arrives on campus. What kind of resources and support will Austin receive in Florida? Individual therapy? Group therapy? How is the school going to specifically address his history of sexual violence against women? Studies show that the many campus sexual assaults are committed by repeat offenders. Austin has already shown himself to be a repeat offender. Unless Northwest Florida intervenes and tries to break this pattern, I think they put themselves in danger of being partially responsible if Austin offends again.