Decision Roundup: Deliberate Indifference Edition

Here are some recent judicial decisions addressing institutional liability for sexual harassment and misconduct. These cases all specifically focus on the institution's alleged deliberate indifference:

A student who was sexually assaulted by a classmate plausibly alleged that her school district was deliberate indifferent to the threat posed by the perpetrator, whom school officials knew to have recently touched other female students without consent, and whom they allegedly failed to discipline prior to the sexual assault in question. T.Y. v. Shawnee Mission Sch. Dist., No. 17-2589-DDC-GEB, 2018 WL 2722501 (D. Kan. June 6, 2018).

Affirming the lower court, the 11th Circuit Court of Appeals held that a Florida school district was not deliberately indifferent to reported harassment where it met with the victim and family the day after receiving the report and the day after that, and, following the week-long investigation, suspended the harasser for two days and ordered him not to have any more contact with her.  G.P. v. Lee County School Board, No. 17-14657, 2018 WL 2714658 (11th Cir. June 5, 2018).

A student who was attending a gateway program of the University of Notre Dame argued that the university was deliberately indifferent when it opened an investigation into her sexual assault that had been reported by someone else. But the court dismissed the claim, ruling that the university's decision to respond to the report, was not clearly unreasonable because the university had other reports that the same perpetrator, a UND football player, had assaulted another woman as well, and therefore had "an  obligation to the larger community to investigate the matter." Doe v. Univ. of Notre Dame Du Lac, No. 3:17CV690-PPS, 2018 WL 2184392 (N.D. Ind. May 11, 2018).

A school for students with autism may stand trial on a Title IX claim that it didn't do enough to protect one of its students from being molested by a fellow student who was 6 years older.  The perpetrator had previously been accused of attempting a rape his roommate, and was also known to have shown pornography to the plaintiff. In light of this knowledge, the court concluded, a jury could conclude that the school's failure to separate the plaintiff from the perpetrator and more adequately monitor his conduct amounted to deliberate indifference, and thus denied its motion for summary judgment. Doe v. The League School of Greater Boston, 2018 WL 2077595 (D. Mass. May 3, 2018).

A school district in Missouri must continue to litigate claims arising from a coach's sexual abuse of a student after losing its motion to dismiss Title IX and other claims. The plaintiff alleged that the school officials had knowledge of various acts of increasingly-severe misconduct committed by the coach (who was criminally convicted). The district's failure to discipline or remove the coach could therefore be seen as deliberate indifference, subjecting the district to liability for the abuse the student endured.  KC v. Mayo, 2018 WL 2107201 (W.D. Mo. May 7, 2018)

The school district in Russell County, Virginia, must continue to defend a lawsuit precipitated by a school custodian's sexual abuse of young boys after a federal court denied summary judgment on Title IX claims that alleged the school district's deliberate indifference to the abuse. The plaintiff, one of the students who had been the victim of that abuse, alleged that that school district should have conducted an independent investigation when it learned that the custodian's wife had called on county officials (its Department of Social Services) to investigate the relationship with the student. For its part, the school district argued that it was reasonable to forgo such an investigation in light of the fact that DSS did not find any evidence of abuse, and that the student's guardians had consented to the custodian's role in the student's life. But the court concluded that it was possible that a jury could determine that the school district's response was clearly unreasonable after hearing all the evidence, and allowed the claim to proceed. The court also found that the plaintiff had presented sufficient evidence from which a jury could conclude that that the school responded with deliberate indifference to the custodian's confession to abusing the student. Evidence that the school board failed to offer counseling or other remedial measures or implement any training or personnel policies aimed at preventing future abuse would support a jury's conclusion that the school district is additionally liable for damages arising after notice of the abuse came to light.  Doe by Watson v. Russell Cty. Sch. Bd., 2018 WL 842196 (W.D. Va. Feb. 13, 2018)

A federal magistrate in Texas recommended the dismissal of Title IX claim against the Austin Independent School District arising from harassment that the female plaintiff endured from another male student who had persistently pressured her for a romantic relationship and acted out in disturbing ways when she declined. The magistrate determined that the school had notice of the male student's obsessive behavior regarding the female student after an incident in which the male student exhibited suicidal behavior.  Yet, the school district's response to that information amounted to more than deliberate indifference. School officials developed a safety plan that included a security guard to shadow the female student.  Even though this did not completely eliminate encounters between the female and the male student, it did minimize them and ensured that no harassing behavior occurred again. Therefore, the school district's response was not clearly unreasonable and the school district could not therefore be liable for damages to the plaintiff under Title IX.  E.M. v. Austin Indep. Sch. Dist., 2018 WL 627391 (W.D. Tex., Jan. 30, 2018).

OCR Finds State Agency Did Not Correctly Apply Title IX to Annual Reviews of Scholastic Athletic Programs

In Washington State, the state agency in charge of public schools (called the Office of the Superintendent of Public Instruction, OSPI) receives federal funding and administers some of that funding to local school districts.  As such, OSPI is required to comply with Title IX and may not aid or perpetuate discrimination by funding school districts who do not comply with Title IX. To that end, OSPI monitors the Title IX compliance of its school districts. Among other things, OSPI collects and reviews the self-evaluations that it requires school districts to annually conduct of its athletics programs' participation rates.

The Department of Education's Office for Civil Rights began an investigation into OSPI's Title IX monitoring process in 2011, after receiving hundreds of complaints about Title IX violations in Washington's public schools' athletics programs. This week OCR announced its conclusion that OSPI was not properly applying the three-part test when reviewing the school districts' self-evaluations of compliance.

The three-part test requires an athletic program subject to Title IX to either (1) ensure that percentage of athletic opportunities for each sex is substantially proportionate to the percentage of each sex in the student body; OR (2) that the program has a history and continuing practice of expanding opportunities for the underrepresented sex; OR (3) that the interests and abilities of the underrepresented sex are being met.

OCR did not find any problems with how the OSPI was applying parts 2 or 3, but it did find fault with the way it determined compliance with part 1. In particular, OSPI only found that schools failed to comply with this part if it would have taken more than 15-20 (depending on the size of the school) new opportunities for the underrepresented sex to bring the school into proportionality. In contrast, OCR has said that except when disproportionality is caused by natural fluctuations in enrollment, the only time a school does not have to be in exact proportionality is if the number of new opportunities needed to reach proportionality is smaller than the number needed for any new viable team. 

Given that there are lots of sports that can run with 15 or fewer students, it is not surprising that OCR found "some instances" where OSPI "perpetuated discrimination" prohibited by Title IX by permitting some school to pass the review when they should not have. OSPI is now obligated to modify its practice so that it applies the appropriate standard going forward, and is subject to monitoring by OCR to ensure it does so.

I thought this enforcement action was noteworthy because of its state-wide impact. In the past, complainants have tried to focuses OCR's attention on widespread noncompliance by filing dozens of complaints at once against school districts who do not appear to comply with the first part of the three part test. OCR has found grounds to dismiss these complaints without investigation or resolution, probably because of the practical limitations of actually conducting all of those simultaneous investigations. But if OCR keeps close track of how state agencies that distribute federal funding are applying Title IX, the agency can have still have state-wide impact. I wonder if we will see more these kinds of investigations initiated in other states.

Another Litigation Roundup

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

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

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

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

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

Evergreen answering second complaint

Erin is quoted in a recent article about Evergreen School District in Vancouver, Washington, which is going through a second review process in just over 5 years with OCR. At issue--again--is both equal treatment (namely facilities) and the distribution of opportunities.
Equal treatment claims are nothing new to us--as Erin notes. Especially prominent at the high school level has been the complaints regarding softball and baseball facilities--which often present a visible and obvious manifestation of unequal treatment. So the issues over what the baseball teams receive in the district versus what the softball teams receive are common.
Two things that struck me about this story:
One, as Erin notes in the article, is the pervasive ignorance around Title IX and its equal treatment is troubling. The lack of proactivity on the part of schools and simply waiting to be investigated before making any changes is not progress, in my mind. It does not demonstrate a commitment to equality. And it is a violation of the law for which there is little punishment beyond making the changes that bring a school into compliance--which isn't punishment at all.
Second, I was struck by the allegation that one school in the district removed the scoreboard at the baseball field rather than put one in at the softball field. While it could be because of financial reasons, a potential precedent of taking away from the boys to comply with the law is startling and reminiscent of the rhetoric around opportunities used by anti-IXers: that the law harms boys. It takes away their opportunities. And now it looks like the district is taking away from their overall experience by removing an amenity. Again, what actually occurred and what will come to bear after the negotiations between OCR and the district are complete remains unknown. But it demonstrates a lack of forethought and knowledge about the law on the part of administrators that girls and girls' sports have to answer for.

Castle Rock Update

We've been following the situation in Castle Rock, Washington (see prior posts here and here), where parents have been advocating for equal rights for girls teams to use the high school's lighted stadium,which has so far been reserved for the priority use by the football team. After initial complaints to the school board failed, one parent filed a complaint with OCR, alleging that it violates Title IX to exclude girls soccer from the stadium.

A recent letter from the school board appears to resolve the controversy by stating that future seasons' soccer games "may be played in the stadium." While this language is somewhat ambiguous ("may" meaning "might"? or "may" meaning "it is now permitted"?) both the complainant and the press seem to understand this as permission for girls soccer to play at least some of their games in the stadium next fall (as well as boys' soccer, which is a spring sport in Washington).

The letter also promises more Title IX training for school district employees. Hopefully those newly-trained employees will keep their eyes on the stadium situation. If girls are not given equal access to the favored facility, the complaint should be renewed.

Sexual Harassment Roundup

A federal district court in Massachusetts has refused to dismiss Title IX and other claims against Palmer Public Schools stemming from a male guidance counselor's sexual relationship with a female high school student. According to the court, plaintiff sufficiently alleged the required notice and deliberate indifference. In particular, the plaintiff alleged that prior to the guidance counselor's sexual affair with her, school officials had notice of allegations that he had had sex with another student and were concerned about his tendency to get "too cozy" with students. Yet, he was not disciplined or supervised in any way to protect female students. The only actions school officials did take were stopping a female student from placing her legs on his, directing him to remove pictures of female students from his office wall, and "contemplating—but never effectuating—" transferring him to the middle school. Doe v. Fournier, 2012 WL 591669 (D. Mass. Feb. 22, 2012).

In contrast, a federal district court in Washington held that plaintiffs did not sufficiently allege that school officials had notice and were deliberately indifferent to signs that a school counselor posed a risk to students prior to having molested the plaintiffs. Plaintiffs had argued that school officials should have been on notice of this risk because they knew that the counselor had once taken a student away from school during lunch hour (with the parent's permission) and that the counselor had once massaged a student in his office. These allegations, if true, do not provide a sufficient basis for the court to conclude that school officials had actual notice that the counselor was or could become a child molester. Doe v. Coleville Sch. Dist, 2012 WL 554430 (E.D. Wash. Feb. 21, 2012).

The Court of Appeals for the Sixth Circuit recently affirmed a lower court's decision to dismiss a Title IX case against a Michigan school district brought by a plaintiff alleging that the school was indifferent to the risk of sexual assault posed by another student. The appellate court rejected plaintiff's argument that the perpetrating student's lengthy history of disciplinary policies, including acts of sexual harassment that took place at other schools, put the school on notice and triggered a responsibility to protect the plaintiff from assault. Interpreting the notice requirement more narrowly than other courts, this court held that acts of harassment against other victims are not sufficient to put a school district on notice of the risk of harm in a particular plaintiff's case. Pahssen v. Merrill Community Schools,2012 WL 333779 (6th Cir. Feb. 3 2012).

Lastly, a federal district court in Louisiana dismissed Title IX charges against a school stemming from the sexual assault of a female middle school student plaintiff by three male peers. The plaintiff argued that school officials were informed of the first incident of harassment, which occurred in January 2008, but did not take sufficient steps to protect her from a second incident, which occurred in March of that same year. The court reasoned that while, in retrospect, more could have been done to punish the perpetrators and protect the victim, the school's response was not unreasonable in the moment, having required each perpetrator to serve a four-day out-of-school suspension followed by a period of in-school suspension of 14 days for the primary perpetrators and two days for the less-responsible perpetrator. However, the court agreed that the plaintiff could continue to litigate her retaliation claim, based on evidence that her residency was investigated and she was expelled from the district after complaining about the January incident, as well as evidence suggesting that the plaintiff was singled out for such investigation. Pemberton v. West Feliciana Parish School Bd.,2012 WL 443860 (M.D.La., Feb. 10, 2012).

Evergreen School District Resolves Title IX Complaint

Evergreen School District in Washington State has reportedly entered into a voluntary resolution agreement with the Department of Education's Office for Civil Rights. Under the agreement, OCR agrees to suspend its investigation that was triggered this summer by a complaint that the school district favored boys baseball with better facilities, uniforms, and equipment as compared to softball. In particular, at two of the district's high schools, the complaint alleged that the district had neglected to repair damage on the softball fields, that the fields lacked drainage and irrigation, as well as fences, batting and pitching machines and cages, and proximity to bathrooms and drinking water.

For its part, the school district agrees to assess its baseball and softball programs along these lines and to devise and implement an action plan to address any discrepancies that the assessment reveals -- in other words, the school district agrees to do what Title IX already requires. The agreement provides deadlines by which the district shall accomplish these tasks, and affords OCR the opportunity to monitor and review the district's efforts.

Single-Sex Education Cancelled in Tacoma, Challenged in Missouri

A school district in Tacoma, Washington recently rescinded a single-sex education program that had segregated sixth grade students by sex for classes in all core subjects at Jason Lee Middle School. This change in course occurred after the state of Washington's Office of the Superintendent of Public Instruction informed the district that state education law actually prohibits single-sex education outside the context of health, physical education, and choir. The district reportedly believed that its program complied with federal Title IX regulations that broadened single-sex education, and did not realize that state law was more restrictive in this regard. However, I'm not sure this program would have survived a challenge even under Title IX, given the regulation's requirement that districts make coed alternatives available, provides students and parents with a choice, and limit single-sex education to those that are "substantially related" to an "important objective." Such a broad scope encompassing all the core subjects in an entire middle school grade definitely raises questions about its compliance with both of those requirements.

Speaking of challenges to single-sex education programs under Title IX, the ACLU has requested that the Adrian School District, outside Kansas City, Missouri, curtail its single-sex education program that offers segregated math and "communication arts" classes in the 6th, 7th, and 8th grade. The ACLU cited growing evidence challenging the efficacy of single-sex education, which calls into question the ability of single-sex education to truly promote an important education objective as required by Title IX regulations or the Equal Protection Clause.

Washington High School Receives Complaint About Fields

A group of parents have reportedly complained to the administration of Castle Rock High School, in Washington, about the unequal treatment received by the girls soccer team, which plays on a field without lights while the football team plays in a comfortable, lighted stadium that it does not share with other teams. As a result, girls' games are sometimes called early due to darkness, which reduces their playing time in a way that football players never experience -- sometimes J.V. games have been shorted to as little is 32 minutes, instead of the usual 80. (The boys' soccer team does not use the stadium either, but their season is in the spring so they don't have the darkness problem.) Adding insult to injury, they claim, is the fact that while their games are called for darkness, the football stadium is sitting unused, because their game schedule does not conflict with high school football practice and game times.

To me it sounds like the parents have a reasonable request and a good case that a Title IX violation is occurring. The law requires equal treatment of male and female athletes. If there is a privilege bestowed to some athletes of one sex, it should be shared among a comparable number of athletes of the other sex.

Moreover, none of the school district's apparent reasons for barring the girls from the stadium are recognized exceptions to the to the requirement of equal treatment. If it really is too costly to let both teams play in the lighted stadium, as one quoted official suggested, equality would require a fair distribution of those funds so that girls and boys can both play there sometimes. School officials also seem to be reluctant to let the soccer team share the stadium because that would mean bumping the middle school football team to another location, and those parents would complain. But not only is it perfectly fair and reasonable to prioritize high school athletes over middle school athletes, it is still a gender equity problem when the middles school and high school boys get better treatment than high school boys.

Finally, officials might also be laboring under the misbelief that as long as other school districts in the area doing the same thing, everything is fine, as the Superintendent quoted in story says she's "looked at a lot of the facilities in our league in our area, and I don't find us to be the only school district with a soccer field that doesn't have lights. Nor do I find us to be the only district that doesn't play on the football field." In fact, Title IX does not recognize an "everyone's doing it" defense. These kinds of violations are common, to be sure. It certainly seems like a lot of school officials are misinformed about the equal treatment requirements under Title IX. But what we've noticed on here at the Title IX Blog is that usually when people complaint about them, they eventually prevail. Castle Rock might not be the only school in Washington that isn't giving its girls' soccer team an equal shake, but that doesn't mean its immune from enforcement.

Boosters pay extra for coaches

The football boosters at Mercer Island High School in Washington want to offer the football coach a little extra money for his off-season duties. Realizing last spring though that they could not do so without violating Title IX, they got together with the parents' club of the gymnastics team to offer a similar deal to the gymnastics coach. The amount of the extra pay will be different; a discrepancy explained by the difference in the size of the respective programs. A seemingly good explanation.
Kudos to the people at MIHS for recognizing the potential booster-induced disparity.
It could be, as one administrator noted, a slippery slope given that most coaches do work in the so-called off-season.
Also a possible issue (not mentioned in the article) is that the outside salary will benefit more boys than girls because the football team is bigger. Also it looks like the gymnastic coach's off-season duties include helping the cheerleaders--which seems like a separate job--especially since he is not allowed to work with his own team members in the off-season, per the state association's rules. (Not sure exactly how the football coach is getting around this. One of the boosters said that there is no "select season" in football, which I'm pretty sure is wrong. Why would every other sport have a season and not football?)
The issue of booster clubs in high schools, and what they are and are not allowed to do, is gaining visibility. And schools are likely to have to continue to juggle the desires of boosters to support the most popular sports and the equitable distribution of amenities, facilities, equipment, and perks. The case at MIHS, though, seems far less contentious than others we have read about.

OCR Trades School District Complaints for Statewide Review

The Department of Education's Office for Civil Rights has received more than a hundred complaints against school districts in Washington state since fall, all alleging violations of Title IX in the schools' athletics departments. Recently, however, the federal agency has closed its pending complaints against Washington schools, choosing instead to investigate the state office in charge of gender equity in education. Notably, Washington state law requires schools to annually audit their athletic programs for compliance with state and federal gender equity laws. The large number of OCR complaints filed against those schools certainly suggests some weaknesses in the scope and enforcement of that state requirement.

As far as I can tell, OCR's decision to close school district complaints in favor of state agency review is a highly unusual move. I'm not quite sure what to make of it. On the one hand, it looks like OCR has recognized some systemic problems in the state, and the possibility that those problems might be attributable to the state agency's failure to hold those schools accountable. Moreover, by turning its attention to the state education agency, OCR sends a message to every state that they have a role to play in ensuring that gender equity problems do not keep mounting up around the state.

On the other hand, school districts and state education agencies have concurrent responsibilities to comply with Title IX, so OCR's decision to let the schools off the hook for now smacks of abdication of enforcement duty. For this maneuver to sit well with me, I'd like to see OCR take the enforcement resources that it presumably saves by consolidating hundreds of individual school district investigations into a single investigation of the state education agency, and use those resources to open up compliance reviews of other state education agencies around the country. Such a move would produce better support of Title IX at the state level and make it so that OCR is not the only cop on the block, so to speak. If this is about getting more bang for the proverbial buck, how about going for a really big bang?

If you happen to be interested in OCR's own description of its decision to replace school district investigations with a compliance review of the state education agency, here is an excerpt from its letter closing some of those complaints:

OCR is currently conducting a compliance review of the Washington State Office of the Superintendent of Public Instruction (WA OSPI) under Title IX (OCR Case No. 10115004). The review will examine the methods and procedures that WA OSPI uses to evaluate the reports on interscholastic athletics programs that each school district in the state is required to submit to OSPI annually. In particular, it will investigate how WA OSPI ensures the accuracy of the reports on interscholastic athletic programs submitted by the districts.

It will further examine how WA OSPI addresses reports indicating that districts are not in compliance with Title IX in order to determine whether WA OSPI is aiding or perpetuating discrimination by providing significant assistance to districts that do not comply with Title IX.

OCR has received more than 125 complaints since November of 2010 alleging that school districts throughout the state of Washington are violating Title IX by failing to provide female students equal opportunities to participate in interscholastic athletics compared with opportunities that are provided to male students. Considering the number and scope of similar allegations, OCR has determined that a compliance review of the state education agency is appropriate.

Under OCR's procedures, OCR may close a complaint that raises allegations that are being addressed in a compliance review. Since OCR is conducting a statewide compliance review that will address the allegation raised in your complaints against the above districts, OCR is closing the complaints against these districts as of the date of this letter.

Washington School District Enters Voluntary Agreement to Comply with Title IX

The Office for Civil Rights accepted a voluntary agreement from Federal Way School District, one of the 26 school districts in Washington State named in Title IX complaint recently accepted by the agency. The complaint alleged that a participation gap of -12.1 percentage points exists between the percent of Federal Way high school students who are female and the percent of athletic opportunities they receive -- the equivalent of 76 actual opportunities -- and that this disparity has been widening, not shrinking, in recent years. A somewhat smaller 8 percentage point gap is reported in the press.

Federal Way has agreed to conduct immediately a detailed analysis of its compliance with the athletics' regulation under each of its three prongs. It also agreed to add new athletic opportunities for girls in the coming year, if the results of its analysis reveal compliance with neither.

On the one hand, it is frustrating to see a school district enter into a formal agreement to do exactly what the law already requires it to do, comply with Title IX under one of the three prongs. But on the other hand, the complaint process has effectively put Federal Way's feet to the fire (along with a couple dozen other districts in the state) to come into compliance in the coming year and under the monitoring of OCR, which will review the districts' analysis and decisionmaking at multiple steps in the process. While the voluntary agreement does not produce a finding of noncompliance or related penalties, it is the mechanism that will most swiftly and fully end the disparity in opportunities that exists for girls in Washington state.

26 Washington School Districts Named in Title IX Complaint

The Department of Education's Office for Civil Rights recently accepted a complaint that cites 26 school districts in state of Washington for failing to provide equitable opportunities in girls' athletics. The school districts recently received notice of the complaint and have been asked to provide information to OCR, so it can decide whether to investigate further. According to the Bellingham Herald, officials from area school districts were surprised to have learned about the complaint and professed to having "no idea" about any gender disparities in the district -- which is, of course, usually how those disparities get to be there in the first place.

Sexual Harassment Roundup

A number of judicial decisions involving Title IX's application to sexual harassment have been issued in the last several weeks.

• The Fourth Circuit Court of Appeals, reversing a lower district court, held that a plaintiff had presented sufficient evidence to survive summary judgment, and could pursue her claim that a municipal police academy is liable for the hostile environment she experienced as a cadet. This record included numerous instances of ostracism by her fellow cadets, sexualizing comments about women generally, and criticism and humiliation that negatively affected her education and performance on a handgun proficiency test, for which she was ultimately expelled. The record also contained references to numerous complaints that the plaintiffs and other academy instructors to the academy supervisor, which never resulted in any effort to protect the plaintiff or correct the offending cadets. This was actually a Title VII case, but is likely to be cited by Title IX plaintiffs as well, especially for the point that academic failures cannot be the basis for taking adverse action against a student when those failures were influenced by a hostile classroom environment. Mosby-Grant v. City of Hagerstown, 2010 WL 5151617 (4th Cir. Dec. 20, 2010).
  

• A federal district court in California granted the University of the Pacific's motion for summary judgment, and dismissed a student-athlete's claim that the university was liable under Title IX for an assault against her by three members of the men's basketball team. According to the court, the plaintiff did not present evidence that university officials had notice that the male athletes posted a threat to the plaintiff, as none knew that one of the assailants had been involved in a prior incident of assault, and another assailant's reputation as a "womanizer" was not enough to link him to prior incidents of assault. Nor did the University respond with deliberate indifference. Officials contacted the police immediately after the plaintiff's assault, conducted an investigation and convened judicial proceedings that expelled one of the students and suspended the other two. Doe v. University of the Pacific, 2010 WL 5135360 (E.D. Cal., Dec. 8, 2010).
  

• A school district in Washington is not liable for a female students' sexual abuse and harassment of her male peer, a fellow 10th grader who suffers from autism. The federal court dismissed the plaintiff's Title IX case after determining there was no evidence that school officials knew he was being abused. Even though one teacher apparently encountered the two students in a sexually suggestive position -- the female student sitting on top of the male student victim, "pretending to rape him" through their clothes -- the court determined that this could have appeared to the teacher as behavior that, while inappropriate for school grounds, was consensual rather than harassment or abuse. Though the court was careful to avoid gender stereotypes about boys' invulnerability to sexual abuse by girls, it did point out that because of the girl's small size made it more reasonable for the teacher to interpret what he saw as consensual. J.B. ex rel. Bell v. Mead School District No. 354, 2010 WL 5173164 (E.D. Wash., Dec. 10, 2010).

• A plaintiff's Title IX claim against a Pennsylvania school district survived a motion to dismiss; the court recognized that the plaintiffs' complaint sufficiently alleged that school officials had notice that a teacher and coach was sexually abusing or harassing their daughter, a student, yet took no steps to preclude Hetrick from having further contact with K.E., nor did it notify either the police or the plaintiffs about the allegations. Having survived the motion to dismiss, the case can now proceed to discovery, where the plaintiffs can gather evidence to prove their allegations. Douglass v. Brookville Area Sch. Dist., 2010 WL 5313448 (W.D. Pa., Dec. 20, 2010).

• A graduate student in social work sued both her university as well as her internship site, a municipal senior center, for sexual harassment by one of the center's clients. When the plaintiff informed the supervisor, she was advised to treat the client's behavior, which included physically, hugging her, touching her breasts and rear end, as a learning experience and an opportunity to demonstrate her commitment to social work. The federal court in Massachusetts sustained the plaintiff's constitutional claims against her on-site supervisor, as well as the Title IX claims against Boston University. The judge sustained the plaintiff's Title IX claim because she alleged that her faculty supervisors knew she was being harassed at her placement and failed to address it with the on-site supervisor or move her to a different internship site. Rinsky v. Boston Univ., 2010 WL 5437289 (D. Mass. Dec. 23, 2010).
  

• A "prank" in which a teacher and an aide pretended to cut a sixth-grade boy's long hair, and then teased the student by calling him a female name in front of both sixth grade classes, could result in the school district's liability under Title IX. A federal court in Ohio rejected the district's motion to dismiss because the plaintiff, the student's mother, alleged that her son reported the incident to school officials, who took no corrective action and forced him to return to the offending teachers' class. Anoai v. Mildford Exempted School District, 2011 WL 53164 (S.D. Ohio, Jan. 6, 2011).
  

Spirit as Sport

Last week the New Mexico Activities Association member-institutions voted to make spirit (cheerleading and dance) a sport. Officials quoted in the news reports about the vote were pretty clear that the primary purpose of this change was to help schools attain compliance with Title IX's proportionality prong. For example, one high school official stated, "Cheer and dance at Silver High has about 50 students, and we can get these to be athletes. That would definitely help us with our participation numbers for girls." This quote seems to typify the officials' concerns -- not whether spirit activities really are (or can become) athletic in nature, only that they count as such. For another example, consider the official who, in acknowledging that unlike other sports, cheer currently has no competitions other than the state tournament, expressed only "hope" that the NMAA "can work on adding something like that in the mix."

Speaking of hope, I hope NMAA plans to ensure that its cheerleading is sport in more than name only. Otherwise, its member institutions could still have legal trouble if they rely on proportionality to comply with Title IX, and rely on cheer participation to get acheive proportionality. The Office for Civil Rights does not defer to high schools or high school athletic associations' labels of what is a sport -- OCR actually compares whether the activity is being treated comparably to other athletic opportunities. For example, I recently read a decision letter issued by OCR following its investigation of Tukwila School District in Washington. OCR refused to count cheerleading as athletic opportunities, even though the Washington Interscholastic Activities Association allows its member institutions to offer cheerleading as a sport. OCR compared cheerleading program at Tukwila's Foster High School to athletic programs, and determined that cheer not comparable. Relevant differences included the fact that cheerleaders, but not athletes, had to pay ($600) to participate, cheerleading's mission statement focused on performance and spirit raising and did not mention competition, and the squad does not compete in league competition and has limited competitive opportunities.

Hopefully schools in New Mexico will see the NMAA's decision as an opportunity not just to change the label of cheerleading from activity to sport, but to ensure that cheerleading called sport actually functions and is treated like a sport. If schools don't, OCR will.

New retaliation case

In Washington a former coach has filed a lawsuit against the middle school that fired her. Terra Solkey, who coached girls' basketball asserts that she lost her coaching job when she started to raise some issues over the inequitable treatments of female athletes in her school.

Solkey was also a teacher at the school and contends she was pushed out of this position as well. The Federal Way School District has asked the judge to throw out the lawsuit.

Solkey contends that no action was taken when boys who were athletes became academically ineligible to play. Also that the school's elimination of the gymnastics program was a Title IX violation. She argues that her complaints to the administration resulted in her not being hired as head coach for a second year and a myriad of petty actions to make her life in the classroom (she actually had her classroom taken away!) more difficult.

Proposal Would Eliminate Sex Discrimination in Community Athletic Programs

A state legislator in Washington state has proposed a bill that would apply a Title IX-like nondiscrimination mandate to community athletic programs for children and adults. Since Title IX itself, which only applies to schools, does not cover community programs such as Little League, this new legislation would ensure that such programs provide equal access to equipment, supplies, facilities and the assignment of coaches and game officials regardless of the participants' sex.

Community recreation departments are concerned, however, that such a law could expose them to liability for discriminatory conduct of leagues that use community fields. But that is something community recreation department should already be concerned about. As government entities, they are obligated to comply with the Constitution's Equal Protection Clause, which also prohibits discrimination on the basis of sex. For example, female athletes have successfully relied on the Equal Protection Clause to challenge Little Leagues and other community supported sports leagues that denied them an equal opportunity to try out. Since this proposed legislation would clarify, but not necessarily expand, the requirement of equality to treatment as well as access, I'm don't think it's terribly persuasive to argue that such a law imposes too much additional liability on community recreation departments.

School District Proposes Unified Booster Club

After a Title IX compliance report prepared for Mercer Island (Washington) School District revealed funding disparities between boys and girls athletics programs, the district's athletic director is proposing a partial solution in the form of a unified booster club.

As we've noted before, schools must provide athletic opportunities of comparable quality to boys and girls, regardless of donations to the school made by booster clubs of individual teams. Disparities can result when popular sports (often football) receive a great deal of parental and community support compared to other less popular sports. When these disparities track gender lines, a school district risks violating Title IX.

Such compliance concerns have prompted Mercer Island officials to propose that a single, school-wide booster club replace the 22 individual booster clubs for respective teams. Not surprisingly, this idea is reportedly unpopular, as some of the more well-organized and effective clubs are reluctant to sacrifice control and submit to profit sharing with other teams. But Mercer Island is right to insist that they do so. If parents and community members do not want to voluntarily support their daughters' teams in the same manner as their sons', the school district has to figure out a way to neutralize the inequality that results, either by matching funds raised by the effective clubs, or forgoing booster club donations altogether. Unified booster clubs are a responsible, fair alternative to both of these expensive and unfavorable extremes.

No longer an implication

Not too long ago I wrote about the push to add women's wrestling at a community college in Washington where the men's team was on the chopping block because of skewed proportionality numbers. I suspected that the motives were not exactly pure; that the idea came from a desire to save the men's team and that the benefits to women were secondary, which had the potential to actually hurt the women who got involved.
Well there must be something in the water in Washington. And that water is trickling down over the heads of high school coaches. One coach in the state told the writer of this article that girls were going to save the sport. Not save the sport by keeping it in the (somewhat dim) spotlight because of the decline in male wrestlers, but save the sport by saving men's teams when women's teams are established. Adding women's oportunities takes men's wrestling out of the cutting danger zone, so the theory goes.
Let me just reiterate that I think women's wrestling is a good thing. I hope the sport continues to grow. But I want it to grow for its own sake. It should not be the ugly stepsister of men's wrestling that is tolerated because it serves a purpose that benefits male wrestlers. Perhaps I am being too sensitive. Maybe this is an ends justify the means kind of situation.
But I cannot get over some major worries (some of which I wrote about the other day). But additionally I wonder if this plan that the Washington wrestling community has come up with is really going to work. Women's sports cost money. Women's wrestling costs money. It may help with a school's proportionality score but it may strain an already strapped budget; because who doesn't have budget issues these days? And why women's wrestling? A school could add any women's sport and better its proportionality. Women's tennis? Soccer? How about increasing the number of swimmers on the current women's team?
Again, I am not disparaging women's wrestling. And it's more cost-effective for a school to add a team if the facilities are already in place. But it seems like some of these coaches are thinking about men's and women's wrestling as a package deal. Adding a women's team is not guarantee that the men's team will remain. Budgets get tight and if a viable women's team is already in place and your school is not meeting Title IX's requirement for equitable participation opportunities then men's wrestling could go. There are schools all over the country where there is a women's soccer team but no men's; women's swimming, no men's; women's cross-country, no men's. And I know of at least one college where there's a women's wrestling team but no men's team. Just because there are men's and women's "versions" of the sport does not mean they must both exist at the same institution.
I hope the people in Washington who want to save men's wrestling 1) really have the best interests of women in mind, and 2) have thought through all the potential consequences of this plan.