A Roundup of Disciplined-Student Cases

In three separate cases, courts issued rulings this week that address claims by students disciplined for sexual assault that the university's process for administering discipline was biased and/or procedurally unfair. A summary of each is below.

Doe v. Ohio State University.  In this case, Ohio State expelled a male student for having sex with a female student who could not consent due to incapacitation by alcohol. He sued the university and several university officials in federal court. This week, the court granted the university's motion to dismiss the constitutional and Title IX claims against it because state entities like Ohio State enjoy sovereign immunity from suit in federal court.  The sovereign immunity doctrine has an exception for cases where the plaintiff seeks prospective relief, such as reinstatement, but because the plaintiff did not request reinstatement, that exception does not apply.

Additionally, the university officials moved to dismiss the claims against them in their personal capacities on the grounds of qualified immunity.  Under this doctrine, state officials are only liable for violations of constitutional rights that are "clearly established." The court determined the most of the plaintiff's allegations about the deficiency of the process constituted a violation of clear constitutional precedent.  However, the court did not dismiss plaintiff's allegations that the university officials were trained in a biased manner, since if proven, such claims would implicate a clear constitutional right to have one's case decided by an impartial adjudicator.  However, the court cautiously acknowledged that there's a difference between being biased against sexual assault in general, and being predisposed to finding a respondent responsible for sexual assault in a given case. The plaintiff can't satisfy the latter with evidence of the former. However, the court read the plaintiff's allegations as plausible enough to warrant discovery.  The officials would have an opportunity to seek dismissal on summary judgment and have the court determine if the plaintiff has meet that burden of producing evidence in support of the allegations.

Doe v. University of Cincinnati.  Here, a male student was suspended for one year for having sex with a female student without her affirmative consent. He then sued the university in federal court and moved for an injunction that would prevent the suspension from taking effect. The court granted the injunction after agreeing that the plaintiff was likely to prevail on the merits of his argument that the complainant's absence from the hearing deprived him of an opportunity to cross-examine her. While not endorsing a blanket right to cross examination in all student disciplinary hearings, the court did acknowledge the importance of that right in cases like this one where the hearing panel's assessment of parties' credibility was the key factor in its determination. The court also did not insist that when a right to cross examination exists, it must be conducted in person at the hearing. Instead, what made the accuser's absence from the hearing a due process violation in this case was the fact that the respondent did not know in advance that she would be not be present, and thus, was unable to take advantage of other means of cross-examination, such as the submission of written questions that the hearing panel could have posed to complainant in some other way.

Arishi v. Washington State University.  This case stems from Washington State University's decision to expel a doctoral student after he was arrested for child molestation and statutory rape. The student sued in state court to challenge the university's disciplinary procedure as a violation the state statute that imposes procedural requirements on adjudications conducted by state agencies. He argued that he was not allowed a "full hearing" required by Washington's administrative procedure act, which would have provided him the opportunity to cross examine witnesses, present evidence, and be represented by counsel.  The court agreed that state universities are subject to the law and that none of the exceptions warranting an abbreviated hearing apply. The court has ordered the plaintiff's case remanded to Washington State, which must conduct a full hearing if they wish to expel him. According to this news article about the case, the court's decision will mean changes in the disciplinary process not just at Washington State, but 26 other state colleges and universities whose procedures do not constitute full hearings under the state administrative procedures act.

Punishment and reforms for Stanford band

This week Stanford University announced the results of its investigation into the university's marching band. At issue was a climate of sexual hostility marked by harassment of members, especially upon initiation. In addition there were violations of hazing and alcohol policies. This has all resulted in a ban on the band's travel to away events next year. They will perform at home events and other unnamed non-athletic events.

We had not heard of this situation; it certainly has not made headlines like the OSU band scandal. (Though apparently the band has a reputation and have a history of rude behavior at schools.) The descriptions--admittedly vague--of the incidents suggest common issues among bands (and probably other college groups): alcohol, initiation rituals based on public humiliation, and sexual harassment/assault. What is interesting is the way these problems are framed when the group in question is a college marching band. The Dean of Residential Education commented on the findings and punishment: "The university's objective is to ensure a safe and harassment-free environment while honoring the band's traditions and its unique, irreverent identity." So band hazing/harassment is because they are quirky? When sports teams do this it's about team camaraderie. When fraternities and sororities do it, it's about loyalty to the organization.

It's all a form of violence. The commonality is that students largely think these things are fine and they are "part of the culture."

The band has the option of  appealing their partial suspension.

A few weeks ago we heard about another problematic culture within a university group: the swim team at Western Kentucky. Their investigation was more explicitly Title IX focused as it looked into numerous accounts of hazing. The punishment at WKU was far more extensive: three fired coaches, a 5-year suspension, and at least one athlete who will face criminal charges.

Again, the exact events that occurred within the Stanford marching band and the WKU swim team are unknown and comparing is impossible. However...there was no discussion of adult leadership in the Stanford case. I find this curious. Where were the university employees in all this? There are, of course, numerous cases of hazing within intercollegiate athletics where coaches claim they had no idea what was going on. But that excuse that the non-student adults are really oblivious as to what their charges are up to is not as readily accepted anymore as evidenced in the WKU case and of course in the OSU band case where the director was fired.

Hazing and harassment cases call for a greater questioning of the practices of any group culture and also inquiring into how that culture has been created and perpetuated. Did this really happen at Stanford?

Ohio State Hockey Coach Resigns Over Harassment Complaints

Ohio State's women's hockey coach has resigned in lieu of being fired for misconduct that included sexual harassment of his players.  The university reportedly commenced investigating Nate Handrahan last November after receiving an anonymous complaint from a teacher or instructor that one of his players had shared in class the fact that he made sexually explicit comments to the team.  In the course of investigating the complaint, the university received verifying testimony of other witnesses, who attested not only to his use of sexual language and innuendo (such as for example telling them in practice to "get horny for the puck") but also his verbally abusive and intimidating style.  (The university's report also concluded that he had engaged in retaliation against his players as well, though the news account I read did not go into details on this.)

Earlier this year, Kris blogged about the dismissal of UNH's women's hockey coach over an incident in which he assaulted a player by pulling her to the bench by her shirt, causing her to fall.  And I can't help but ask about this case the same question Kris asked then: would this have happened in men's sports?  Notwithstanding prominent counterexamples, such as the dismissal of Rutgers men's basketball coach for abusive conduct towards his players, there is still a lot of tolerance for, and even expectation of, an aggressive style among coaches of men's teams.  At the same time, cultural stereotypes about female athletes suggest that aggression is not appropriate for them. That puts coaches of women's teams -- men and women alike -- in something of a double bind as they receive mixed messages from society (and possibly from the culture of their athletic department): be aggressive, to prove yourself as a coach.  But don't be aggressive towards female players, because women are different.  The fact of this double-bind is not only dangerous for coaches, but for players as well.  Not only because coaches may wrongly infer that abusive conduct is appropriate, but also because when the coach is dismissed for such misconduct, that in itself further diminishes the athletes' experience by depriving them of continuity in coaching.

By no means do I point out this double standard to condone the actions of Coach Handrahan here.  Nor do I suggest that Ohio State in particular is practicing a double standard.  (In fact, Ohio State's similar response to the band director situation last fall suggests that Ohio State is consistent when it comes to addressing sexual harassment in its programs.)  But in a larger sense, this case helps illustrate the importance of being consistent across men's and women's programs when it comes to tolerating harassment, abuse, and bullying by coaches. Aggression that crosses the line into that territory should never be mistaken for a coach's job requirement, regardless of the sex of the athletes he or she is coaching.

OSU Band Situation

It's been a busy semester for us, so we have not always kept up with the latest Title IX happenings. I am actually looking right now at a white board of my things to do which includes a list of posts I want to write.

One of those is the Ohio State band situation that made headlines this past summer. OSU plays rivals Michigan this Thanksgiving weekend, so I figured it was as good a time as any to do an update post.
What has happened in the wake of band director Jonathan Waters's firing has made less news than the original story and the subsequent protests of his firing, but as the OSU band has marched on (yes, intended) there have been developments in this story.

In September, Waters began a lawsuit against the university seeking reinstatement (plus a million dollars in damages) and--ironically--used Title IX as part of his defense saying he was discriminated against because of his gender. OSU did not seem to blink saying that such a claim was invalid given that he is a member of the male majority. They also responded that because Waters was an at-will employee, they could fire him at any time. (He had claimed lack of due process in his dismissal.) They also claimed that he hid aspects of and misled investigators about the climate in the band; the climate that seemed to promote sexual harassment and assault and which was brought to the attention of the administration last spring by a mother of a band member. He was also accused of mishandling complaints of sexual harassment and assault that were brought to him during his tenure. Notably, as this was happening, the university entered into an agreement with OCR to end the investigation into the university's mishandling of sexual assault cases.The investigation did not stem from the complaints about the band.

Most recently, an independent task force created specifically to investigate the band culture and headed by former attorney general Betty Montgomery issued a nearly 100-page report based on interviews with almost 200 people that included many recommendations about how to change the culture. The task force, though, was committed to maintaining some of the band's longstanding traditions (though it recommended elimination of the most egregious ones) just altering them to make less problematic.The report did not discuss Waters's dismissal, only his role as the leader of the organization and an instructor. The report did not limit itself only to the culture under Waters. Waters has responded to the report saying that he agrees with the report and its recommendations and says that these are things that he was trying to accomplish when he was fired. (video here) He said that he was "the solution to the problems they were having." And he still wants his job back.

He is, though, looking for another job in the meantime. His lawyer reports that he has not received any offers since his firing. This is not surprising. Unless there is solid evidence that Waters did not do what OSU is alleging he did, any university hiring him would be incurring some liability. Though Waters has received a tremendous amount of support from the OSU community (well outside of administration), I do not think that those a step removed from the situation see things the same way.

OCR Concludes Compliance Review of Ohio State

The Department of Education's Office for Civil Rights announced that it has concluded a Title IX compliance review at the Ohio State University that the agency commenced at its own initiative in 2010.  OCR determined that OSU's written policies and procedures for responding to sexual harassment and sexual violence did not comply with Title IX requirements such as by failing to designate reasonable timeframes for the major stages of the disciplinary process, failing to extend the policies to harassment committed by third parties, and failing to define sexual harassment to take into consideration the subjective (as well as objective) perspective.

In response to these and other findings, the agency negotiated a resolution agreement with the university that obligates OSU to make necessary revisions to come into compliance.  In particular, OSU is obligated to:

• Streamline and revise certain policies consistent with the law; 
• Review and confirm the proper handling of sexual harassment/violence complaints and reports since the 2011-12 academic year; 
• Expand sexual assault and harassment training programs to include all members of the university community – including students, faculty, administrators, and university police; and 
• Establish a campus focus group to provide input on strategies for ensuring that students understand their rights under Title IX, how to report possible violations, and Ohio State’s obligation to promptly and equitably respond to Title IX complaints. 

Now that the agency has concluded its compliance review at Ohio State, the university is no longer in the company of the eighty-some other colleges and universities with pending Title IX investigations.  (By way of background regarding OCR's investigation methods, most of its investigations result from complaints that the agency receives, but a small percentage of are conducted proactively by the agency's own initiative -- with OSU's investigation falling into that latter category.  Another example of a proactive compliance review was the SUNY-system review that concluded in a similar manner in 2013.)

Another contextual point worth making is that the agency's review commenced long before the problems of sexual harassment and sexualized climate of Ohio State's marching band came to light.  Yet, OCR has taken the opportunity of its pending investigation to review and endorse the university's response to that matter, which included terminating the band director and as well as implementing other structural changes to prevent similar problems going forward.  In the press release announcing the resolution agreement, Catherine Lhamon, the Department's Assistant Secretary for Civil Rights "applauded" the university for setting "clear and vitally important expectations for a community-wide culture of prevention, support, and safety," and for serving as an example of "strong leadership.. to eradicate a culture of silence related to sexual harassment." As Ohio State endured criticism from the band director's supporters who believe his termination was an over-reaction, it no doubt appreciates the Department's inclusion of this public statement of support.

Ohio State Marching Band Director Fired Over Sexual Harassment

Today it was reported that Jonathan Waters, the director of Ohio State University's marching band, was fired for tolerating sexual harassment among the students in the band. In response to a parent's complaint about the band's secretive and sexualized atmosphere, the University conducted an internal investigation into the matter and produced a report detailing its findings. Among them, the investigation revealed that Waters and other staff members supervised an annual tradition that involved students marching into the football stadium in their underwear at midnight.  Another set of findings involved the sexualized nicknames assigned to band rookies by the upperclassment, which Waters knew about and sometimes used.  The findings also detailed sexualized content in band newsletters, songs, and various tests, challenges required of rookies that Waters knew or should have known was going on.

OSU concluded based on these findings that the band consisted of a sexualized and hostile environment, that Waters knew about and did not take adequate steps to prevent.  Acknowledging its duty under university policy and Title IX, the university terminated Waters and vowed to realigm the band with the University's mission through stronger oversight, policies and procedures. This seems to be a good example of proactive behavior on the part of a university to uncover and respond to Title IX problems.