Catching up: Minnesota football attempts boycott

Several significant events occurred in the past few weeks as we were wrapping up semesters, traveling, celebrating good news and times, and reflecting on what 2017 will bring and how we will respond.We will be catching up on these. Here is installment one about the Minnesota football boycott.

Minnesota football team protests Title IX sanctions
Part I: The members of the University of Minnesota football team banded together and said they would not participate in any football-related activities--including their scheduled December 27 bowl game--in protest of sanctions handed down by school officials against ten team members involved in sexual assault and harassment of a female student. They demanded the president and athletic director  reverse the suspension of their teammates.

In what was supposed to resemble activism, the players presented a united front, had a press conference, and told the media that the Title IX infractions were unfairly meted out, that there was violation of due process and constitutional rights. The action is supported by head coach, Tracy Claeys, who tweeted (2017--the year when people become more self-aware about Twitter??) that he has  "never been more proud of our kids. I respect their rights [and] support their effort to make a better world!" He also invoked the concept of due process.

There was a flurry of opinion pieces (and opinion pieces masquerading as fact) about Title IX investigations run amok.

Part II: The players thought that the cultural capital of football and its corresponding economic capital (bowl games = $$) would prevail. Not in this cultural climate--and not with the evidence against the ten players, including four who had been suspended by the coach himself for team violations after the incident was reported in September.

Players hold another press conference and say they will indeed play the bowl game and resume other activities. The change was attributed to the boycotting players actually reading the 80+ page report of the incident; a report compiled by the school as it investigated the incident as per its legal obligations. The reading of the document was part of a meeting with the university president. I imagine that the power of football was brought up in that conversation as well. The power bestowed on intercollegiate football players and the ability of universities to take that power away. (There were many troubling perceptions of the power of football within this whole event.)

The second press conference reflected some of these power paradigms Spokesperson for the boycott said "we understand that what has occurred these past few days and playing football for the University of Minnesota is larger than just us."

Sadly there was no concern for the victim. No support for the role of Title IX and its enforcers in keeping students safe. No clarification about Title IX investigations and how they differ from the criminal process. In short, it does not seem like anyone learned anything except how to (and how not to) wield the power of football.

Part III: Minnesota wins the bowl game. A Forbes writer attributes the underdog win to the "solidarity" that was established during the boycott and calls the boycott a "silent victory." Solidarity in the name of misogyny is not very silent--especially in football.

The school announces this week that Claeys has been fired. The athletics director (in his first year) said that there were issues in the program around recruiting and ticket sales but admitted that the coach's comments during the boycott did not help his cause. There has been pushback against the firing.

Sexual harassment roundup

Here is a roundup of some recent judicial decisions in Title IX cases alleging institutional liability for sexual harassment. 

A cheerleading coach's teasing of a female student's "saggy boobs" was inappropriate but not sufficiently severe to constitute sexual harassment within the meaning of Title IX.  Nor was the school district deliberately indifferent to the student's complaint, as school officials investigated the matter, suspended the coach for two weeks, and reprimanded her.  Doe v. Georgetown County Sch. Dist., 2015 WL 5923610 (D.S.C. Oct. 9, 2015).

A school district was not liable to a female student for sexual assault by a male student in the same special education program. School officials were not alleged to have notice of any past instances of sexual the male student's sexual misconduct, except one incident in which he had asked a female classmate if he could touch her (and did not, apparently, touch her). Even if this incident could be found to have put school officials on notice that he was a sexual threat to other students, school officials did not respond to that incident with deliberate indifference but instead subjected the student to enhanced supervision and separated him from female student he had propositioned.  Swanger v. Warrior Run Sch. Dist., 2015 WL 5830068 (M.D. Pa. Sept. 30, 2015).

Pervasive bullying that included keying the word "cunt" into a female classmate's car, but that otherwise involved no reference to sex or gender, did not constitute harassment "because of sex" for purposes of Title IX. Hankey v. Town of Concord-Carlisle, 2015 WL 5737136 (D. Mass. Sept. 30, 2015).

A federal judge in Ohio refused to dismiss a Title IX claim against a vocational college after determining material facts were in dispute that could, if proven, give rise to liability for sexual abuse of a student by a culinary arts instructor. The plaintiff, who claims she was seduced by the instructor into a sexual relationship, alleged that the college had notice of the instructor's bad boundaries, including inappropriate comments and touching.  However, a trial is warranted to determine precisely how much of the instructor's earlier bad behavior had been reported, and, consequently, whether the college's response -- which included investigating the instructor and subjecting him to some monitoring, but not removing him from the classroom or limiting his contact with students -- was tantamount to indifference.  Doe v. Springfield-Clark Career Technology Center, 2015 WL 5729327 (S.D. Ohio Sept. 30, 2015).

A university was not deliberately indifferent to a graduate student's report of sexual harassment by a professor, having responded to the student's complaint by conducting an investigation, changing her work assignment and office location, and supervising future meetings between the student and professor.  The student was, however, allowed to continue to litigate her Title VII hostile environment claim, because Title VII does not use a deliberate indifferent standard.  The fact that the professor was the student's supervisor puts the burden on the university to prove to a jury that they exercised "reasonable care" to prevent/address the harassment and that (by quitting just one week after filing her complaint) the complainant herself unreasonably failed to avail herself of preventive or corrective measures adopted by the university. Jenkins v. University of Minnesota, 2015 WL 5521746 (D. Minn. Sept. 18, 2015).

OCR to Investigate University of Minnesota Athletics

The Department of Education's Office for Civil Rights will investigate a Title IX complaint directed at the University of Minnesota athletics department, according to an article in the local press yesterday. The complaint alleges that the department does not provide comparable facilities to women's programs, as evidenced by the women's cross-country and track teams' exclusion from a proposed $190 million athletic "village" that will provide facilities for football and men's and women's basketball.  The running sports, which account for almost half of the opportunities offered in women's athletics, will actually be losing their existing track to make way for the new village.  The team, along with its men's team counterpart, may even be relocated to a facility four miles away in St. Paul.

OCR's investigation would presumably focus on the overall treatment of men's and women's athletic programs in comparison to each other. At first blush, it seems problematic that the new facility will benefit a far greater number of male than female athletes and that its construction seems to be disrupting a far greater number of female athletes than male (running sports account for 227 opportunities for women and 145 for men). Depending on the level of quality of the facilities for other women's sports, however, it's theoretically possible for OCR to determine that the programs receive equal treatment in the aggregate.  We shall see what the investigation reveals. 

Coach Sues University of Minnesota to Challenge Anti-gay Discrimination

Last week, former University of Minnesota women's golf coach Katie Brenny reportedly filed suit against the university and officials, arguing that she was forced to resign by anti-gay hostility in the athletic department. Brenny charges that the university violates the state of Minnesota's Human Rights Law, which unlike Title IX, covers discrimination on the basis of sex and sexual orientation. Brenny alleges that though she was hired as associate head coach of the women's golf team, she was never permitted to carry out coaching duties, as she reassigned to administrative duties soon after arriving at the University, while the someone else took over the team. The University denies that it discriminated against Brenny, while Brenny argues that she is entitled to compensation for lost wages and the expense of finding another job, as well as humiliation, embarrassment, and distress.