Courts Address Deliberate Indifference, Anti-Gay Harassment in Recent Cases

A federal district court in Massachusetts recently denied the City of Attleboro's motion to dismiss a claim that the school district violated Title IX by failing to adequately respond to bullying of the plaintiff by her high school peers. The plaintiff was targeted for persistent name-calling, including anti-gay slurs, over several years. The school district argued that the bullying was outside the scope of Title IX because it had nothing to do with the plaintiff's sex, but the court rejected that argument because, "sex discrimination can be based on sex stereotypes. Actionable stereotypes include those based on sexual orientation." The court also determined that a jury could decide that the school district's response to the bullying that it knew about amounted to deliberate indifference. Though the school district allegedly did more than nothing, it is possible to view its response as "clearly unreasonable" because it was inconsistent and failed to escalate as the problem persisted.
 Harrington v. City of Attleboro, 2018 WL 475000 (D. Mass. Jan. 17, 2018).

In another recent decision involving K-12, the Houston Independent School District did successfully dismiss a Title IX claim challenging the adequacy of its response to a report of sexual assault by a 12 grade boy of a 10th grade girl. (He placed her hand inside his pants, they disputed whether it was consensual.) The court determined that the allegations against HISD did not amount to deliberate indifference since it was not clearly unreasonable to defer to the investigation of the school district's police unit. Nor was the school district clearly unreasonable in limiting its response to what was in effect a no contact order, since that order was "mostly successful" in preventing future contact between the two students. Ayala v. Houston Indep. Sch. Dist., 2018 WL 496898 (S.D. Tex. Jan. 22, 2018).

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).

Illinois Parents Fail to Block Transgender Student's Use of Locker Room; Judge in Texas Reaffirms Nationwide Injunction Against OCR's Transgender Guidance

Federal courts all over the country are hearing challenges to the Department of Education's position that Title IX prohibits educational institutions from discriminating against transgender students and excluding them from single-sex facilities and programs that they seek to access in a manner consistent with their gender identity.  This post will cover two key developments in separate cases that occurred this week. 

In one case, a federal magistrate judge in Illinois rejected efforts of parents to prohibit Township High School District from accommodating a transgender student's right to use the girls' locker room, which is consistent with her female gender identity. The school district developed an inclusive policy pursuant to an agreement with the Department of Education that resolved the agency's finding that excluding the transgender student violated her rights under Title IX. The group of parents sought an injunction against the policy by challenging the Department of Education's guidance document that contains its interpretation of Title IX's application to transgender rights. It also alleged that the school's inclusive locker room policy violated their children's constitutional right to privacy, but failed to convince the magistrate to offer relief on either ground. As a result, the school district's policy that permits the transgender student to use the girls' locker room remains in effect.  

As to the Title IX issues in particular, the magistrate -- whose role is to make a recommendation to the federal district court judge -- determined that the parents did not have the requisite "likelihood of success on the merits" necessary for such an injunction to issue.  The magistrate noted that many courts are adopting broader understanding of sex discrimination as defined by Title IX and other civil rights laws to encompass discrimination targeting transgender individuals. Even the Seventh Circuit, which has jurisdiction over the federal courts in Illinois, may be poised to overrule its very influential 1984 decision that foreclosed Title VII's protection to transgender plaintiffs. (The appellate court very recently vacated a panel decision that declined to overrule that earlier case, signaling the possibility that the full court will do so when it rehears the case en banc.) Thus, the magistrate concluded, it is not apparent that the plaintiffs are likely to prevail on their argument that the Department of Education contravened Title IX when it promulgated the transgender guidance or when it entered into the resolution agreement with the school district that incorporates the agency's interpretation in the guidance. Similarly, it is unlikely to prevail on its argument that the agency should have used notice and comment procedures to promulgate the transgender guidance, since it appears to be an interpretation of existing requirements under Title IX and its regulations, rather than a new obligation.

The magistrate acknowledged the ongoing litigation in Texas that is also challenging the validity of the Department's guidance about Title IX's application to transgender rights.  Like the decision from Ohio that we blogged about recently, the magistrate in this case determined that the Texas federal court judge's issuance of a nationwide injunction against the guidance has any bearing on this case. 

Coincidentally, however, the second decision of note this week pertains to that same injunction. The federal judge in Texas rejected arguments by the Department of Education to narrow the scope of that injunction to apply only in the 13 states that are plaintiffs in the Texas case, and reasserted that the Department of Education is “enjoined from using the Guidelines or asserting the Guidelines carry weight in any litigation initiated following the date of [its August 21, 2016] Order." 

The two decisions this week are certainly in conflict, as the nationwide injunction is premised on the judge's acceptance of the argument that the transgender guidance is most likely not an appropriate interpretation of Title IX, while the decision in Illinois suggests that it likely is. This fundamental inconsistency could be resolved through the process of initials appeals, in the event that the circuit courts eventually agree to consistent answer to this question.  Alternatively, however, any circuit split that develops would increase the likelihood of the Supreme Court tackling this matter once and for all.  

Meanwhile, however, as recent decisions from other district courts have demonstrated, other courts seem skeptical of the power of one federal judge to affect litigation elsewhere. As the Township High School District demonstrates, that injunction is not interrupting enforcement of the guidance in earlier cases. Nor, as evidenced by the recent decisions in Ohio and Wisconsin decision, does it appear to interrupt efforts of transgender students themselves to assert a right to bathroom usage under Title IX. 

Federal Court Enjoins Title IX Transgender Guidance

This week, a federal court in Texas issued a preliminary injunction that bars the Department of Education from enforcing the interpretation of Title IX that is contained in its May 2016 guidance regarding transgender students. In that guidance, the DoE affirmed that discrimination on the basis of sex includes discrimination on the basis of gender identity and transgender status, and that as a result, institutions receiving federal funding must permit transgender students to access sex-specific facilities and programs that correspond to their gender identities rather than their birth-assigned sex.

The state of Texas is the lead plaintiff in a lawsuit that is challenging the DoE's interpretation. Yesterday, the federal district court granted the plaintiff's motion for a preliminary injunction, which means that while litigation is pending, the Department cannot insist that school districts and universities refrain from discriminating against transgender students, or revoke the federal funding from those who do.  The standard that the courts use to determine if a preliminary injunction is appropriate primarily considers whether the plaintiffs are likely to prevail on the merits, and that the balance of harm tips in their favor.  In addition, the court had to address several threshold issues regarding the justiciability of the case including the standing of the plaintiffs and the ripeness of the claim.

Substantive invalidity.  One key issue on which the court thinks the plaintiffs will likely prevail is their argument that existing regulation does not support the agency's position contained in the guidance.  The court disagreed with the agency's position that the regulatory ban on "sex" discrimination, subject to exceptions for sex-segregated facilities like bathrooms and dormitories, includes discriminating against transgender individuals by denying them access to facilities that are consistent with their gender identities. According to the court, "[i]t cannot be disputed that the plain meaning of the term sex as used in § 106.33 when it was enacted by DoE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth."

I think that even if conceded, that argument misses the point. It is possible to view transgender exclusion as sex-based treatment in the sense that a transgender individual's [anatomical, birth-assigned] sex is being viewed in relation to their gender identity.  Individuals whose sex and gender identities align can use the bathroom that matches their gender identity, while individuals whose sex do not align cannot the bathroom that matches their gender identity. Sex, even in its "plain meaning" attributed by the court, is still a factor being taken into account. An interpretation that this manner of discrimination is already prohibited by the regulations is therefore a permissible one for the agency to make.

Procedural invalidity. The court also concluded that the plaintiffs will likely prevail on its argument that the DoE should have used statutorily prescribed notice and comment procedures. When an agency promulgates a binding regulation, it must publish the rule in essentially draft form, get public input, and address the public's comments in the final version of the rule. However, when an agency issues sub-regulatory guidance that merely clarifies or interprets an existing regulation, it may legally bypass the notice-and-comment procedural requirements.

The court disputed DoE's classification of the guidance as an interpretive rule, concluding that it "de facto regulation" that should have gone through notice and comment, a conclusion that turns on the court's sense that the guidance was meant to be binding and not discretionary. But a key characteristic of an interpretive rule is whether, without it, the agency would have the legal basis on which to bring an enforcement action to the same effect. Here, existing regulations prohibit treating individuals differently on the basis of sex, subject to the exception for sex-segregated facilities like bathrooms and dormitories. Even if the guidance had never been published, the DoE could have advanced this position in the context of an enforcement action. In fact, it did that very thing.  I think the court missed an opportunity to discuss an important characteristic of an interpretive rule, the fact of an already-existing basis for enforcement. 

Ripeness. One other thing that surprised me about the court's opinion was the standard that it used to determine that the case was ripe. Here, the plaintiffs are asking the court to throw out the Department's guidance before it has been enforced against any funding recipient. According to a Supreme Court decision called Abbott Labs, such pre-enforcement review is only appropriate when the questions raised by the case are fit for review and that withholding of review creates a hardship for the plaintiff.  But notwithstanding this two-part test, the Texas court seems only concerned about fitness and not about hardship. In Abbott Labs, the drug manufacturer-plaintiffs challenging a USDA labeling requirement satisfied the hardship requirement because there were high costs associated both with compliance and with non-compliance. Are the schools in Texas and other plaintiff states in a similar double bind?  The cost of compliance is just to let transgender kids use the bathroom that matches their gender identity.  The percentage of students who are transgender is exceedingly small, maybe 1% or less.  For schools that do have transgender students in their population, it is possible to comply with the guidance without incurring any cost at all, which could not be said for the drug manufacturers in Abbott Labs.  Even the cost of non-compliance is distinguishable from that in Abbott Labs, where the Court was not only concerned with the possibility of incurring fines for mislabeled drugs, but also the particular cost to a drug manufacturer's reputation that come from being subject to an enforcement action.  This extra consideration should be necessary, since the penalties that result from the enforcement action itself are always ripe for review. And it doesn't seem to be present here.  In light of the court's omission of a key component of the ripeness test, I am guessing this issue will be an important one on appeal.

Transgender cases updates

University of North Carolina is flip-flopping on HB2. Initially, UNC president, Margaret Spellings (former Secretary of Education) announced that the state's flagship university would indeed enforce HB2's bathroom and locker room rules (requiring people to use bathrooms based on the sex stated on their birth certificates). This was despite Spelling's own experience with Title IX and the lawsuits between the federal government and the state of North Carolina. Spellings's initial stance was to follow the law until courts said otherwise.

But now Spellings has said UNC will NOT be enforcing HB2 choosing the same rationale: to wait until the legal wranglings are over.  She also promised to investigate any complaints from trans students, faculty, or staff who may run into problems. No complaints thus far.

In Texas, which is also suing the Obama administration for its Title IX clarification regarding trans rights, the University Interscholastic League, the governance body which controls athletics in public schools, has put into the rules that students may only compete in sports in accordance with the sex listed on their birth certificates. The spokesperson for the organization said this has always been the practice, they just wanted to put it in writing. Equality Texas will fight the new-not-new rule.

In older news...

A potential bill barring transgender students from using bathrooms and other marked single-sex facilities according to their lived gender is drawing concern from the governor of Tennessee. The bill being considered by the legislature is similar to the one in Texas and states that "public schools shall require that a student use student restroom and locker room facilities that are assigned for use by persons of the same sex as the sex indicated on the student’s original birth certificate.” There is no mention of transgender students, but the bill is clearly aimed at these individuals.

But the governor is worried--and rightly so--that passing the law would mean the public schools would lose federal funding. As we have noted before, the Obama administration as well as the courts, have affirmed that Title IX protects transgender students and provides them the right to use bathrooms and locker rooms in their lived gender.

A nearly identical bill in South Dakota, passed the by state's legislature earlier this year, was vetoed by the governor in early March. The Republican governor (the legislature is also Republican controlled) said the bill was too sweeping and that these issues, when they arise--which he feels is rarely, are best dealt with by local officials. This is a bad approach. Yes, the law was also bad, because it conflicts with federal regulations, but leaving things to local officials is not a good idea either. It leaves trans students unprotected and opens up local school districts to lawsuits.

In response to the increase in the number of Title IX exemptions being sought by private religious colleges and universities, LBGT rights groups have put pressure on the NCAA to prevent schools who received these exemptions (which allow them to discriminate against transgender students) from being member schools. The petition which includes about 80 groups and is being lead by Campus Ally did not sway the NCAA which declined to take the recommended actions.

In a far more progressive consideration of these issues, the Albuquerque (New Mexico) Public Schools board is considering a proposal that allows transgender students to use bathrooms and locker rooms in keeping with their gender identity. There has been some concern from board members about children being exposed to the body parts of the "opposite sex" but these were seemingly quickly shut down by those who noted that any type of indecent exposure in these spaces is illegal and others who likened the discriminatory discourse against trans people to the rationale white people have used in the past against people of color.

The proposal also includes the following provisions:

• The district will provide age-appropriate instruction to all students on gender-based discrimination.
• Students will be addressed by the name and pronoun that aligns with their gender identity.
•  Students are permitted to participate in physical education classes and intramural sports consistent with their gender identity.
• The student and parents may request a support team meeting to ensure proper access to all programs and activities, as well as protection from gender-based discrimination.
• Students have the right to dress in accordance with their gender identity within the constraints of the dress code.

Recent transgender policy cases

[I have been putting this post together for a few weeks now so some of the information is not that new, but still important to consider in the overall landscape of trans rights in education. I will post again soon about additional stories that are more recent.]

I am stealing this line from Ed Mazza's HuffPo piece about genital inspections as a prerequisite for public bathroom use. (see end of post for more on this):
"It may be a New Year, but the same old battle over bathrooms is starting all over again."

So here we go:
South Dakota considered legislation  that would prevent transgender students from using bathrooms and locker rooms in accordance with their gender. This is despite the fact that the government has already made clear its stance on this issue when it recently intervened in the case of young girl in Illinois who was prevented from using the girls' locker room.The state's House of Representatives approved the bill by a wide margin (58-10). The bill's author specifically discussed the so-called incursion of the federal government into schools: "The federal government is now telling our schools that these students must have full, unrestricted access to restrooms, locker rooms and shower rooms," Deutsch said. "This means our schools must allow biologic boys and girls to use the same facilities together regardless of biologic sex." Another proponent of the bill said the "movement of transgenderism" is "endorsing confusion in the lives of little kids for whom we're responsible." The bill moves to the senate and then, if passed, to the governor's desk. Though he has not read it, he said it seems like a good idea. If it gets that far, I see lawsuits.

Another issue in Oregon. It was in Oregon, at George Fox University, where the issue of religious colleges receiving Title IX exemptions first drew media attention (though the requests had begun before that).  This time a high school is debating whether a transgender student can use the boys' bathroom. Like in South Dakota, everyone knows about what happened in Illinois, and opponents do not seem to care. At a school board meeting in December, in which this issue was not on the agenda but had gained enough local attention that parents flocked to the meeting, many people had things to say. Earlier in the fall, a letter had been sent home explaining that a trans student would begin to use the boys' locker room for gym class.

We have not been writing about every case of transgender discrimination in K-12, and this one has--seemingly--only just begun. I give it attention here because it was one of the saddest stories I had read in quite a while. Other cases such as that of Nicole Maines or Gavin Grimm or Jayce (the George Fox student) included testimony from their parents, who all stood/are standing behind their children. The paths to this place were different among the parents, but they all got there. The child at the center of this latest controversy does not have that support. Elliot Yoder's mother has not quite gotten there. This is not to say that she will not, but this fight is happening now. And Yoder walked to the front of that meeting hall by himself after standing in the back of the room listening to people talk about him. They invoked the usual: religious freedom (it's a public school) and fears about sexual assault and spying by students pretending to be something they are not. They added some threats of violence. And then Yoder walked to the front of the meeting hall, after hearing members of his own family and some of his friends support his exclusion from the boys' bathroom, and explained his situation.

This is why we need education and legislation about transgender student rights. Because I imagine there are many more students in Yoder's situation--ones who do not have family or local support--who cannot bring themselves to speak out in front of a crowd of people who are, for all intents and purposes, against them. When clear laws and policies are in place and supported vehemently by the administration, then these students can begin to exercise their rights even if they do not have a lot of people in their corner.

In Texas, school superintendents have voted that student athletes must compete according to the sex listed on their birth certificates. The University Interscholastic League, which governs school sports in Texas, had this policy informally but punted a final decision to the superintendents' association. The overwhelming vote in favor a birth certificate policy puts the state in line with only six others.

On a happier note for transgender athletes, but one that has nothing to do with Title IX, the International Olympic Committee has changed its policy regarding the conditions under which transgender athletes can participate. The major change from the previous policy is that participants do not have to undergo sex reassignment surgery. As many critics of former iterations of the policy have noted, surgery is not a performance enhancer and often recovery from surgery can impede an athlete's training. MTF individuals will have to be able to prove they have sustained a specified testosterone level for at least a year. FTM athletes can compete without restriction. This means, I presume, that there will be an exception made for exogenous testosterone. I find this curious given how concerned the IOC has been about testosterone levels.         

Though the IOC will apply these rules to Olympic participants, the new policy serves only as a recommendation to other international federations. In other words, governing bodies in any sport can implement their own rules.

And to end on a smh moment: a Virginia state delegate in the House of Representatives has proposed genital inspections before people go into public bathrooms, including students going into school bathrooms. It may be wrong to even mention this, but genital inspections do not reveal sex. Ask the International Olympic Committee circa 1960. This is, of course, beside the point. What the senator is trying to do is to prevent transpeople from using the bathrooms in accordance with their lived gender. The measure calls for a $50 fine for anyone using a bathroom not in accordance with anatomical sex. The fine can be issued by any law enforcement officer. So in an age where fears of pedophilia abound, there is a proposal calling for adults to inspect children's genitals. Again, pointing out all the problems with this proposal is an exercise in futility. The point is that it is being proposed to shame and out transpeople.

[Don't forget: Virginia is the state where Gavin Grimm is fighting for his right to use the boys' bathroom at Gloucester High School. He has received the support of the Obama administration in his case. The Federal Court of Appeals heard Grimm's case last week. ]

I would like to think that Mark Cole's proposal is a publicity stunt--an attempt at media attention. But I doubt it. It is a response to a perceived threat that people like Cole find so outrageous and it inspires outrageous responses. My fear is that measures that are perceived as slightly less outrageous, such as the bill in Houston will be seen as legitimate in comparison.

Sexual Harassment Roundup: K-12 Cases

Here are summaries of some recent judicial decisions involving Title IX claims against school districts for failing to adequately respond to reports of sexual harassment and abuse.

A federal court in Connecticut refused to grant summary judgment to a school district in a case stemming from a ninth-grader's repeated sexual abuse of the sixth-grade plaintiff.  The abuse itself occurred outside of school, but the plaintiff alleges that the school district was deliberately indifferent to the fact that the abuse and her reporting of it subjected her to continued harm while at school. For one matter, the school did not take steps to expel the 9th grader, which created the opportunity for the plaintiff to encounter him in space that the middle school and high school shared. Additionally, the school did not respond to repeated requests from the plaintiff's parents to intervene in harassment that the plaintiff was enduring at the hands of some sixth-grade peers, including the perpetrator's sister. The court agreed that based on these claims it is possible for a jury to conclude that the school district was deliberately indifferent and liable under Title IX. Its ruling allows the case to continue on to trial.  Doe v. New Fairfield Bd. of Educ. 2016 WL 310720 (D. Conn. Jan. 26, 2016)

A school district in Indiana must continue to litigate a former student's claims that school officials' tolerance of hazing on the boys' swimming team violated Title IX as well as his constitutional rights. In denying the school district's motion for summary judgment, the court determined that a jury could find based on the evidence in play that the school tolerated conduct among boys that it would not have tolerated among girls, a finding that would subject the school to liability under Title IX. Because the plaintiff alleged that the school officials' indifference to hazing was "because of sex" it was not fatal to his claim that his additional allegations that the hazing itself was "because of sex" was not supported by evidence. J.H. v. School Town of Munster, 2016 WL 427351 (N.D. Ind. Feb. 03, 2016).

An Oklahoma school district prevailed on summary judgment in a case filed by a female student who was targeted for an inappropriate relationship by her history teacher.  The student argued that the school should have been on notice of the teacher's conduct as a result of an incident in which a custodian discovered the teacher and student together in a locked classroom with the lights off.  While in fact that teacher had been kissing and touching the student behind the locked door, the teacher provided a plausible explanation for this situation when he was asked about it by school officials (the locked door he said was the result of on active shooter drill, the lights off because he was using a projector). In light of the teacher's response, the court determined that the custodian's discovery of the locked/dark classroom did not provide the school district of actual notice of the teacher's inappropriate conduct and that it was reasonable to take no further action against the teacher other than warn him not to be alone with students in the classroom. Later, when school officials received additional evidence of the teacher's conduct, they acted immediately to suspend the teacher and begin a disciplinary process that ultimately led to his resignation, thus fulfilling their obligation under Title IX to respond reasonably to actual notice of a threat of sexual harassment,.   Roof v. New Castle Public School District No. 1, 2016 WL 502076 (Feb. 8, 2016).

A federal magistrate in Texas granted summary judgment to a school district after determining that the plaintiff did not have sufficient evidence that school district's response to peer harassment was tantamount to deliberate indifference.  The plaintiff, an 11-year-old boy, was harassed by fellow students because he had "breasts like a girl" and other physical characteristics that allegedly made him appear less masculine and gay to his classmates.  In light of uncontested evidence that the school district took some disciplinary action in response to reports of bullying, the magistrate determined that school officials could not have been indifferent, even though the response was (at least arguably) too weak to curtail the bullying in question. Nor did it matter that the school district (again, arguably) failed to comply fully with its own anti-bullying policy. Concluding that the school district "should have done more" does not determine whether the school was deliberately indifferent. Drawing this distinction, the magistrate determined that the school district could not be liable under Title IX.  K.S. v. Northwest Indep. Sch. Dist., 2015 WL 9450853 (E.D. Tex. Dec. 1, 2015).

Do Competitive Spirit Competitions Offer Athletic Opportunities that Count Under Title IX?

As the school year gets underway in Texas, high school students there have the opportunity for the first time to compete in a statewide cheerleading competition sanctioned this summer by the state's interscholastic athletic league (the UIL) on a one-year trial basis.  The four-day competition will be based on "what cheerleaders do during a pep rally or on the sidelines, without the high-flying tosses and difficult gymnastics found in competitive cheer" -- according to the UIL's executive director.  The league was reportedly motivated to add the cheerleading competition in order to  ensure that school districts' cheerleading programs comply with its health and safety regulations.

Ensuring the safety of cheerleading participants is an important objective, and I support the league's decision to create a "Game Day Cheer" competition in Texas on these grounds. Separately, however, it is important that school districts who decide to participate in this competition do so because they wish to enhance extracurricular opportunities for the students involved, and not because it counts as a source of athletic activities under Title IX. 

While the Department of Education's Office for Civil Rights does presume that activities recognized by the institution's athletic association count as a source of athletic opportunities that should be counted under Title IX, this presumption can be rebutted by evidence that the activity in question is not similar in nature to the other athletic opportunities supported by the institution.  The factors that are used as a the basis of this comparison include how the activity is administered (i.e., by the athletics department, like other sports), how the activity is structured in terms of having practice and competition schedule that is comparable to other sports, that opportunities to compete in a post-season tournament are, like in other sports, based on regular season results, and that selection for the activity is based on athletic ability.   The application of these factors raises doubts about the ability of Texas competitive cheer to count as a source of Title IX opportunities. Moreover, the judge in the Quinnipiac case  determined that the competitive cheer team at issue in that case did not count as a source of athletic opportunities under Title IX because too many of the team's competitions emphasized non-athletic factors such as spirit-raising.  Given that Texas's state championship deliberately emphasize spirit raising to the stated exclusion of athleticism, it would seem to be disqualified from the Title IX analysis for that reason as well.

To be clear, I found no suggestion that the UIL is promoting competitive cheer as a means for its member school districts to comply with Title IX. However, I did note that just as the UIL endorsed competitive sideline cheer, it rejected proposals to sanction water polo and bowling, both of which could have served as sources of athletic opportunities for girls.  I worry that this sends the wrong message to school districts that they can add competitive sideline cheer instead of other girls sports, when for schools lacking in compliance with the three prong test, this is not legally the case.  Any Texas school district that uses competitive cheer opportunities to suggest the appearance of gender  balance in the distribution of athletic opportunities is taking a legally vulnerable position that would be hard to defend to OCR or to a federal court. 

Texas School District Resolves Title IX Complaint

Last spring we blogged about a Title IX complaint filed by a coach against the Longview (Texas) Independent School District, alleging inequitable athletic opportunities for girls at Longview High School. We recently learned that the school district has entered into a voluntary agreement (.pdf) with the Department of Education's Office for Civil Rights resolving the issues raised in the complaint. 

As a result of the agreement, OCR will not need to complete its investigation or make any formal findings with respect to Longview's compliance with Title IX.  However, it appears from the information they already gathered that OCR would have likely found some violations. For instance, as the OCR noted in its letter to the complainant (.pdf), the district offered over twice as many athletic opportunities to boys than to girls, had not added a new sport for girls in at least twenty years, and had no process or procedure for gauging whether the opportunities that were available for girls were satisfying the interests and abilities of the underrepresented sex.  As a result, OCR probably would have found that Longview did not comply with Title IX's three-part test for measuring equity in the number of athletic opportunities for each sex.  Appropriately, the district has agreed to address this problem by assessing whether its female students have an interest in new sports that are not currently offered, or in having more teams in sports that are already offered, and to add new opportunities accordingly.

OCR's investigation had also already revealed some disparities in the quality of athletic facilities available to students of each sex.  In particular, the OCR noted disparities between baseball and softball facilities, which were the only ones used exclusively by students of one sex. Unlike the softball field, the baseball field has bathrooms, a press box, a sound system, and a concession stand.  The baseball field also has fancier dugouts and batting cages than those at the softball field. Notably, the school district has agreed to remedy these disparities by March 1, 2015

The district has also agreed to assess the assignment and compensation of coaches and the availability of equipment and supplies to ensure that any disparities between girls' and boys' teams are not the result of discrimination. 

All of the school district's obligations under the agreement are subject to OCR's monitoring and oversight.

OCR Investigates Complaint Against Stephenville, Texas School District

We recently posted about a preliminary decision in a Title IX lawsuit against Stephenville Independent School District in Texas over the athletic program at its junior high school.  Turns out, the same school district's high school athletic program is also under scrutiny.  According to a February 13 letter from OCR (which I have read, but cannot link to), the agency will open an investigation into claims that Stephenville High School discriminates against female student-athletes with respect to the number athletic opportunities available to them, the scheduling of games and practice times, support for travel, assignment and compensation of coaches, locker rooms, practice and competitive facilities, publicity, and scholarship assistance provided by the school.  OCR will also investigate claims that the school district retaliated against the complainant by removing one of his daughters from a club basketball team and failing to respond to both daughters' reports of bullying and harassment.

OCR declined to investigate a claim that the school district mis-reported participation data in its response to the Civil Rights Data Collection by omitting male participants in a 7-on-7 club football team.  The existence of those opportunities, however, will presumably be probed as part of the agency's investigation into the school district's equitable distribution of participation opportunities overall.

It will be interesting to follow the public and private enforcement against Stephenville ISD as they occur in tandem. No doubt there will be lots more to say as these cases develop.

Lawsuit Against Texas School District Allowed to Proceed

Last summer, a parent and his two daughters sued the Stephenville (Texas) Independent School District, alleging that gender disparities in athletics at Henderson Junior High, where the daughters attend and play volleyball, constitute violations of Title IX.  Recently, a federal judge determined that part of the lawsuit can go forward, having denied the school district's motion to dismiss the plaintiffs' claims that athletic opportunities available to girls are inferior to those available to boys.  Specifically, the plaintiffs allege inequities in the assignment of seasons, the number and quality of coaches, the adequacy of facilities and locker rooms, the scheduling of practice times and competitions, and support from booster clubs and other outside funders.  These allegations were sufficient to survive a motion to dismiss, since they are ripe for litigation and, if proven, would constitute violations of Title IX.  With respect to these claims, the case can proceed to the next stage of litigation, which is discovery.  If the plaintiffs gather sufficient evidence in discovery, the case could go to trial--though settlement is another possible outcome. 

The court did,  however, dismiss the plaintiffs' claim that female students receive an inequitable number of athletic opportunities.  Because the complaint did not allege that the girls were seeking to participate in any athletic opportunities not offered by the school, the court determined that they did not have standing to challenging the absence of those opportunities.  This aspect of the ruling underscores one of the differences between public and private enforcement of Title IX.  Anyone can file a complaint with the Department of Education's Office for Civil Rights--you don't need to be someone personally affected by discrimination.  In contrast, private litigants seeking to enforce Title IX in the courts must have standing in order to do so.  They must maintain throughout the litigation that they have a stake in the outcome of the case.  The plaintiffs here were able to do that with their equal treatment claims because they are current student-athletes at Henderson.  But if they graduate before the case is finally decided, it could potentially be dismissed as moot.  Because of these challenges, we tend to see more public than private enforcement of Title IX with respect to interscholastic athletics.    

Decision: McCully v. Stephenville Ind. Sch. Dist., 2014 WL 292147 (N.D. Tex. Jan. 20, 2014). 

Sexual Harassment Roundup

Here is another installment in our regular effort to provide summaries of all Title IX sexual harassment decisions issued by the courts:

A state court in Pennsylvania agreed that Slippery Rock University lawfully terminated a professor of sports management who, while leading a class trip to Spain, got drunk with his students and made sexual remarks to them. After the trip, a student complained to the professor about his conduct, and he responded by apologizing and by reporting to his Dean what had occurred. Eventually, a disciplinary proceeding ensued that resulted in the professor's termination, due largely to the fact that he had committed an act of sexual harassment in the past, and had agreed that he should be fired if it happened again.  The professor then appealed the decision to an arbitrator, who ordered him reinstated, finding that the university did not provide proper notice to the professor of the charges against him.  The university, in turn, appealed to the court, where the judge determined that, in fact, the notice was proper. As a second reason for overturning the arbitrator's decision, the judge noted that retaining the professor would put future students at risk of harm and the university at risk of liability under Title IX. Therefore, the arbitrator's decision was "against public policy" and should be overturned on that ground.  Slippery Rock Univ. v. Ass'n of Pa.  State College and Univ. Professors, 2013 WL 2450495 (Pa. Comm. Ct. June 7, 2013).

The parents of a disabled student sued a school district, alleging school officials' deliberate indifference to sexual assault by his peers that the student endured in the school bathroom.  However, the court determined that the school was not liable under Title IX because the parents had failed to allege that they notified school officials that he had been sexually assaulted, rather than bullied in a more generic way. C.L. ex rel. R.L. v. Leander Independent School Dist., 2013 WL 2452724 (W.D. Tex. June 4, 2013).

A former student's lawsuit against a community college based on sexual harassment by her professor was dismissed for being filed too late. The statute of limitations that applies to Title IX claims is based on the state's statute for tort claims, which in this case (in Pennsylvania) was two years. Despite the fact that the professor allegedly continued to harass the plaintiff until about a year before she filed suit, the professor was terminated as an employee of the college during that time. Because institutional liability for harassment does not extend to a harassment over which the school has no control (such as by former employees), the court reasoned that she needed to have filed a claim against the institution within two years of the professor's termination. Because she failed to do this, the plaintiff's case was dismissed as untimely. Gjeka v. Delaware County Community College, 2013 WL 2257727 (E.D.Pa., May 23, 2013).

A court dismissed a case against a school district in which a bullied student's parents allege that school officials were indifferent to bullying endured by their son.  The complaint failed to state a claim because the plaintiffs did not allege that the bullying was because of sex (such as targeting the victim for gender nonconformity, or consisting of sexual conduct). Baker v. Hamilton City Schools Bd. of Educ., 2013 WL 1131068 (S.D.Ohio, March 18, 2013).

The Sixth Circuit Court of Appeals affirmed a lower court's dismissal of a case alleging that school district officials were deliberately indifferent to known threat of sexual abuse by a teacher. Prior to the reports of sexual abuse, school officials had reprimanded and warned the teacher to curtail physical contact with students, based on reported incidents in which he had grabbed or pinched a student. Such response was not unreasonable, the court determined, because the earlier reports of physical contact were of a nonsexual nature. McCoy v. Board of Educ., Columbus City Schools, 2013 WL 538953 (6th Cir. Feb. 13, 2013).

OCR Investigations Underway In...

...Framingham, Massachusetts, where students have been complaining and protesting that high school officials took it easy on a male student-athlete accused of sexual assault, even after his second offense.  The students note that the school's drug and alcohol policy carries stronger sanctions than the five-day suspension he eventually received.  The accused student was allowed to continue to play football despite both reports of assault, and still sees both victims at school every day.  The Department of Education's Office for Civil Rights received a complaint that the school district's response violates Title IX, and has begun an investigation into whether the school district had in place, and followed, appropriate procedures for handling allegations of assault, and whether it had designated the required Title IX Coordinator position to someone on staff. 

...Longview, Texas, where a former high school girls soccer coach has filed a complaint with OCR containing allegations of inferior treatment for his and other girls' team, compared to boys' teams who have access to better facilities and equipment and more coaches. The complainant, a high school teacher named Eric Yoder, earlier complained to the school district's Title IX coordinator and then the school board, and filed a complaint with OCR after both earlier complaints were rebuffed.  The high school's athletics director, for one, has accused Yoder of being interested only in his salary, though it's clear that the scope of Yoder's complaint is much broader.  OCR officials arrived in Longview last week, and reportedly talked to over 250 student-athletes as part of its investigation. 
   

Court Dismisses Claims in Bully-Suicide Case, Again

For the second time this year, a federal district court in Texas has dismissed claims against the Joshua Independent School District filed by the estate and family of Jon Carmichael, a former middle schooler who committed suicide in 2010 after enduring severe bullying at the hands of his peers.  As we noted back in January, the court dismissed the Title IX claims because the complaint did not contain enough detail to warrant a finding that the bullying was "because of sex."  However, the court gave the Carmichaels the opportunity to amend the complaint and try again.  Last week, the court ruled that even as amended, the complaint does not sufficiently warrant consideration under either Title IX.  It also dismissed, for the second time, the Carmichael's constitutional claims.  This is a most unfortunate decision.

Here is how the complaint describes the pinnacle of Jon's abuse:

A day or so before Jon's death, he was once again placed into a trash can. This time the acts of the bullies—all members of the middle school football team—escalated beyond just their regular assaults of Jon and now into a degrading sexual assault. Before they placed him in the trash can, they stripped him nude and tied him up. Then, they proceeded to parade a group of boys before him while calling him “fag”, “queer”, “homo[”], and “douche.” A number of students in the locker room observed this deplorable behavior. Jon was, of course, devastated by this assault that placed his emerging sense of manhood under direct public attack.

Even more shocking than the incident itself is the fact that Jon's fellow student, J.R., videotaped the attack and uploaded it to YouTube. Sometime later, a teacher who had learned of the incident and video directed J.R. to remove it from the website and destroy it. The teacher did not report the incident. It is highly unlikely that if a female student had been the object of such an attack, whether at the hands of male or female students, the incident would have been investigated and reported and the bullies would have been punished. Also, this was another instance where the coaches at Loftin, including Defendant Strickland, employed different customs, practices, and procedures when members of the football team were the perpetrators of an assault.

According to this court, "this single incident, amid numerous ones that contain no hint of gender-based animus, is not enough to state a facially plausible student-on-student harassment claim." The court makes much of the fact that plaintiffs do not allege that Jon was targeted because he was perceived by his harassers to be gay.  Thus, the words the bullies used during the trash can incident did not, to the court, mean anything related to Jon's gender or gender conformity. This represents an overly-narrow view of sex discrimination as applied in the context of bullying.  Especially with the added detail about football players perpetrating, and getting away with, the most severe incident, it is easy to see that bullying is being used a tool to police compliance with the dominant version of masculinity, which Jon Carmichael did not meet, and that makes it discrimination "on the basis of sex" protected under Title IX.

The court also disregards as speculation the plaintiff's claims that a female victim in the same circumstance would have been treated differently, which, in addition to the gender nonconformity theory, is another way of demonstrating that a bullying case involves discrimination on the basis of sex.  This seems unduly harsh.  I think the plaintiffs should have had the opportunity to convince a jury that this was, indeed true.  It seems reasonable, especially in light of  the alleged statement by school officials that "boys will be boys," that a gender double-standard was at play.  

The court did not give the plaintiffs yet another chance to amend their complaint.  Instead, the next available step for the Carmichael family is to appeal the lower court's decision and seek to have an appellate court reinstate their case. That's the outcome I'm rooting for. 


Decision: Estate of Carmichael v. Galbraith, 2012 WL 4442413 (N.D. Tex. Sept. 26, 2012). 

Column Describes OCR Enforcement of Title IX to Prevent Sexual Violence in Schools

Professor Joanna Grossman's latest column at Justicia.com looks at recent efforts by the Department of Education's Office for Civil Rights to enforce Title IX's requirement that schools address sexual violence as part of their obligation not to discriminate based on sex. In addition to having issued a Dear Colleague Letter in April 2011 that explains how school and college officials should respond to charges of sexual violence on campus, the agency has recently adjudicated an enforcement action against a school district that failed to properly investigate a student's report of sexual assault.  Professor Grossman described the case, called "Student v. Henderson Independent School District" as precipitating from a student's sexual assault by another student in the band room at Henderson (Texas) High School.  Though the student reported it to the assistant band director, no action was taken by the school until she reported it again, two days later, to another school official.  That official called the police, who upon investigation, determined that the incident was criminal in nature. Based on that conclusion, the school district took no further action to investigate the matter, and disciplined both students for committing acts of "lewdness" in violation of school policy.

Grossman characterizes the school's response as containing a "classic, but unacceptable error: it deferred to the police to investigate the allegation, and based its disciplinary action on the police findings alone."  She then explains how OCR used this error as the basis for determining that the school district violated Title IX, reasoning that because Title IX -- as part of civil law -- uses the "preponderance of evidence" standard to determine a student's guilt rather, the conclusions of police are not dispositive of whether sexual assault was likely enough to have occurred to warrant protective measures taken by the school.  The police, after all, look for whether the evidence of assault was sufficient to satisfy the stricter clear and convincing evidence used in criminal cases. The school should have conducted its own investigation, and acted on their findings accordingly.

The student could have used Title IX to sue the school district in court for damages, but instead pursued relief through the OCR.  Grossman explains the advantage she might have had in going the agency route. OCR can't require a school to pay money damages for things like pain and suffering and other noneconomic harm, and is instead limited to relief that is mainly prospective in nature. But because money damages are not driving the case, OCR can use a lower bar than the courts for finding a school district responsible.  It's possible that the student did not have enough evidence of the school's deliberate indifference to warrant a court judgment in her favor, but what evidence she did have was enough for an adjudicative victory.  This case ended up producing a resolution agreement under which HISD is required to review and revise its policies and procedures for investigating sexual harassment and sexual violence complaints and take other steps to make sure this doesn't happen again.  It must also required the school to remove the lewdness violation and punishment from her educational record and pay for her to receive private counseling.  OCR was able to validate the victim's experience and provide a remedy that was appropriate for this case.

Sexual Harassment Roundup

Here are summaries of three recent decisions in Title IX sexual harassment cases from around the country.

As reported here, a federal judge will let the mother of a bullied middle school student continue to pursue her lawsuit against the Cypress-Fairbanks (Texas) Independent School District, having denied the district's motion to dismiss her claims under Title IX. The bullied student, Asher Brown, committed suicide in 2010 after enduring two years of bullying and harassment by his peers, who targeted Brown for his perceived sexual orientation among other reasons. Brown's Asperger's syndrome challenged his ability to interact socially with his peers. Additionally, Brown was small, not athletically inclined, talked with a lisp, and pigeon-toed -- a condition that caused him to walk with a "sashay." The court determined that the plaintiff sufficiently alleged that Brown was targeted because of sex, in that the bullies' perception of Brown's homosexuality was rooted in his gender nonconforming behavior, as evidenced by the gay slurs and other sexual behavior that they used to taunt him. The court also accepted plaintiff's allegations that the school district was on notice of the harassment, notwithstanding that the middle school principal did not know, because Brown and his parents complained regularly to counselors, teachers, and other school officials with authority to take corrective action. They further allege that in response to their complaints, no action was taken to address the bullies or protect Brown from further harassment. Barring settlement, a trial will take place likely next year. Brown v. Ogletree, 2012 WL 591190 (S.D. Tex. Feb. 21, 2012).

Another federal court dismissed Title IX claims against Blackburn College, in Illinois, stemming from the rape of a female student, the plaintiff, by an unknown attacker. According to the court, undisputed facts demonstrate that the college did not have actual notice of the threat. While agreeing with the majority of courts that the threat of harassment need not be "plaintiff-specific," the court nevertheless found insufficient basis to conclude that college was aware of a risk in this case, as prior instances of campus rape known to officials at the time of plaintiff's assault did not involve unknown attackers. Nor was Blackburn indifferent to sexual harassment after plaintiff reported the rape to college officials. College counselors met with the plaintiff on the night of the assault and many times thereafter, officials held a town hall meeting about campus safety, assisted her with off-campus resources, and offered academic accommodations. This response is not deliberate indifference as required for Title IX liability to attach. Doe v. Blackburn College, 2012 WL 640046 (C.D. Ill. Feb. 27, 2012).

A federal court dismissed Title IX and other claims against the District of Columbia arising out of a teacher's alleged sexual relationship with a high school student. According to the court, the student-plaintiff did not allege that she reported the relationship to anyone. Though her pregnancy was known, she did not report nor was anyone aware that the pregnancy resulted from a sexual relationship with a teacher. Once the District officials did receive report of the relationship, they investigated the matter and ultimately found the teacher not liable. According to the court, "In light of the breadth of this investigation and its inconclusive results, DCPS can hardly be said to have acted with deliberate indifference by not firing Weismiller [the teacher] then. Finally but significantly, Plaintiff does not allege that further sexual harassment occurred as a result of [DCPS's] deliberate indifference." Blue v. District of Columbia, 2012 WL 746400 (D.D.C. Mar. 8, 2012).

Dallas School District Takes Only Boys on Field Trip to the Movies

As reported here, the Dallas Independent School District is getting flack for its decision to take 5000 students, only boys, to the movies to see the film "Red Tails." Due to the high cost of such an outing -- $57,000 to rent buses and purchase tickets -- it wasn't feasible to include girls as well. So the school district's solution was to leave the girls behind, assuming, most likely, that girls would not be interested in a movie about the Tuskegee Airmen who fought in World War II.

If you're wondering, yes, this violates Title IX. As one expert put it:

"This sort of blatant gender discrimination is actually quite shocking in 2012."

Indeed. I hope the stakeholders in Dallas ISD are holding school district officials accountable for their poor judgment.

Sexual Harassment Roundup

Federal courts have recently issued several decisions in Title IX cases involving allegations of sexual harassment. I am grateful to Western New England law student Shiona Heru for helping me prepare these case summaries!

• The Fifth Circuit Court of Appeals affirmed a lower court’s decision to dismiss a harassment case against a school district in Texas, calling it “petty squabble, masquerading as a civil rights matter.” Drawing a distinction between sexual harassment, which is covered by Title IX, and generic bullying, which is not, the court refused to consider incidents arising out of dispute between cheerleaders, in which one female student allegedly spanked the plaintiff’s butt, spread rumors that plaintiff was pregnant and had hickies, could not be viewed as harassment motivated by the victim’s sex. Also, in addressing the plaintiff’s claim that the school district’s failure to notify the Title IX coordinator constituted deliberate indifference, the court made it clear that ineffective responses to harassment do not establish deliberate indifference. Sanches v. Carrollton-Farmers Branch Independent School Dist., 2011 WL 2698975 (5th Cir. Jul 13, 2011).

• A federal court in Wisconsin rejected a school district’s attempt to dismiss a sexual harassment case involving a seventh grade student who is alleging that school officials failed to protect her from extensive verbal and physical abuse by four fellow classmates. The most egregious acts alleged included three consecutive attacks by two of the students who repeatedly hit the plaintiff with spiked track shoes resulting in the approximately 38 puncture wounds on the plaintiffs head, as well as an incident where two students beat her with a three-foot long tree limb which resulted in bleeding, lacerations, welts, bruising, emotional trauma, permanent scarring and severe bruising of several vertebrae. When the parents of the plaintiff requested that the plaintiff be permitted to attend another school, the school district refused and would not remove her harassers from her classes. The court considered these allegations, if proven true, to constitute deliberate indifference that could thereby subject the school district to liability under Title IX. Doe v. Galster, 2011 WL 2784159 (E.D. Wis. Jul 14, 2011).

• A federal court in California refused to dismiss a case filed by a high school student who alleged she had endured severe sexual harassment by a school counselor. Specifically, the plaintiff had alleged that the counselor’s behavior over the course of six months, which included sexually suggestive comments, inappropriate physical contact and unwarranted monitoring, rendered the district liable under Title IX and other law. Though the district court dismissed those portions of the plaintiff’s claim based on conduct that took place prior to the plaintiff’s notifying the school of the counselor’s conduct, it did accept that the plaintiff’s allegations of deliberate indifference were specific enough to withstand a motion to dismiss claims arising from conduct that occurred after the plaintiff notified officials. Lilah R. ex rel. Elena A. v. Smith, 2011 WL 2976805 (N.D. Cal., Jul. 22, 2011).

• A federal district court in New Jersey dismissed a sex discrimination and harassment case filed by a 22-year old male student against his undergraduate institution, the New Jersey Institute of Technology. The court found that the plaintiff’s selective enforcement claim, alleging that NJIT’s actions were motivated by gender, was flawed because he failed to demonstrate that his circumstance was sufficiently similar to a female student’s complaint where she reported a threatening comment made by the plaintiff. The court also dismissed the student’s sexual harassment under Title IX because his complaint did not include specific allegations that the institution had notice of the harassment he was facing from his peers, or that it responded to that harassment with deliberate indifference. Tafuto v. New Jersey Inst. of Technology, 2011 WL 3163240 (D.N.J., Jul. 26, 2011).

Column Questions Title IX's Absence from Cheerleader's First Amendment Case

There's a good column at WomensE-News.org on the Fifth Circuit's September decision dismissing a student's claims that the school district violated her First Amendment rights when officials ordered her to cheer for another student-athlete whom she had accused of raping her several months before. While the facts of this case certainly do call First Amendment issues into question, i.e., does the cheerleader have a right to refuse to cheer in symbolic protest of a particular athlete and his conduct, and was school officials' response retaliation against her for reporting a popular student-athlete for rape? (for analysis of those issues, see here), columnist Wendy Murphy rightly points out that Title IX should have been at the foreground of this case. The student's lawyer apparently did not allege, and thus the courts did not consider, whether school officials' response to her allegations of rape constituted deliberate indifference that should have rendered the district liable under Title IX. But Murphy believes this would have been an easy argument to win. Apparently, school officials were under the false impression that they were not obligated to get involved with the case as it proceeded in criminal court, even though courts have said that such deference to law enforcement constitutes deliberate indifference. Rather than take any steps to investigate or address the matter on its own, the school let the accused student continue to play sports until his criminal conviction. As for the accuser, she was not offered any protection or even sympathy, as evidenced by the instance in which she attempted to refuse to cheer at a game for the accused student by name, but was ordered by the superintendent and the principal to cheer or go home (she chose the latter). This too violates clear Title IX precedent in the area of peer harassment, as courts have said that it is inappropriate to separate the victim from the perpetrator rather than the other way around.

So why was Title IX, the obvious source of relief and liability in this case, ignored by the lawyers, the courts, and the media until now? Murphy blames our society's reductionist tendency to view Title IX as a law only about athletic opportunity and I think that certainly comes into play. But let's imagine that early efforts to exempt sports from Title IX had passed. Would the law be popular instead as an anti-harassment law? I'm not so sure. I think it might just not be popular at all. Culturally speaking, we have a tendency to downplay sexual violence and to disregard it as a form of sex discrimination. We'd be wringing our hands about the lack of awareness about Title IX's application to sexual violence whether or not the law also applied to sports.

Sadly, this case represents a missed opportunity, both to offer some relief to the plaintiff and to raise awareness about sexual violence and sex discrimination in schools. Sadder still, the cases that do invoke Title IX in the context of sexual harassment and sexual violence -- the vast majority of judicial decisions rendered under Title IX today, as a survey of this blog would quickly reveal -- are not sending the message to potential plaintiffs, to school districts, or lawyers on either side about the role of law in this area. (It does not help matters that to learn about sex discrimination in law school, you'd have to take a class with "Women" or "Gender" in the title, and the people who take those classes are not necessarily the ones who need to be enlightened.) For these reasons, I'm particularly glad Wendy Murphy posted about this case. One column in the blogosphere (now two) won't change the culture of ignorance, but if we all keep talking about school's responsibilities to protect students from sexual harassment and sexual violence, eventually the message will get through.

Texas volleyball player's case closed

High school volleyball player Mackenzie McCollum's complaint against her Texas school district has been dismissed. The Office of Civil Rights did not find sufficient evidence to suggest that the Fort Worth school disctrict employees violated Title IX when they limited McCollum's playing time after officials found out she was pregnant.
McCollum actually ended her time at the school in December and was apparently in labor when the news of the OCR investigation was made public.
The National Women's Law Center, which represented McCollum, was disappointed in the finding, believing that the school district did handle the situation poorly. But McCollum's lawyer, Lara Kauffman, was looking to the bright side of things by noting the attention this complaint received. It will make schools more aware of their legal (and ethical, I would add) obligations to pregnant students, she said.
McCollum could appeal OCR's ruling, but there is no indication that she will do so. Also, no lawsuit has been filed in this case.