Senators Propose New Law Aimed at Campus Sexual Assault

Today a group of bi-partisan senators proposed new legislation in Congress called the Campus Accountability and Safety Act, aimed at addressing the problem of sexual assault on college and university campuses.  Included in its provisions are:

•  a required annual survey of students at every university in America to help understand the climate of sexual violence on campuses
• requirements that all campus personnel who deal with sexual violence in some way receive specialized training
• a requirement that colleges and universities provide confidential advisors to serve as a resource to victims of sexual violence by helping to coordinate their support services, educational accommodations, and dealing with campus authorities and law enforcement
• a prohibition on colleges sanctioning a student who reports sexual violence in good faith (such as punishing the victim for underage drinking) 
• requirement that the Department of Education publish the names of all schools with pending investigations, final resolutions, and voluntary resolution agreements related to Title IX
• a requirement that colleges and universities use a uniform process of campus disciplinary proceedings that doesn't allow, say, athletic departments to handle sexual violence in a different way than the rest of campus
• a requirement that colleges and universities coordinate with local law enforcement to delineate respective responsibilities and areas of jurisdiction

Some of these provisions would codify (and thus make mandatory) recommendations contained in the White House Task Force report that came out last May, while others echo requirements in the Office for Civil Rights 2011 Dear Colleague Letter (which, unlike the requirements contained in a statute, could be easily revoked by a future Secretary of Education serving under a different presidential administration).  But one additional provision of CASA is (as I told the New York Times) a potential "game changer" and that is the addition of financial penalties other than federal funding withdrawal as a tool the Department of Education can use to deal with schools that violate provisions of Title IX. This is considerably important.  Because it the severity of revoking federal funds (leaving an institution's students without financial aid, most notably) the Department of Education has never and probably will never revoke federal funding over Title IX compliance.  And schools know this, so the law provides little incentive for them to proactively comply.  Under this new law, however, schools would have more to fear than just a scolding and a compelled promise to prospectively comply.  They could potentially be fined for an amount equal to 1% of their total operating budget. I would expect the threat of such a penalty to more effectively motivate compliance than Title IX's current enforcement mechanism.


The bills co-sponsors are Claire McCaskill (D-Mo.), Dean Heller (R-Nev.), Richard Blumenthal (D-Conn.), Chuck Grassley (R-Iowa), Kirsten Gillibrand (D-N.Y.), Kelly Ayotte (R-N.H.), Mark Warner (D-Va.), and Marco Rubio (R-Fla.).  The fact of bipartisan support certainly increases the bill's odds of passing into law, though it is also worth noting that other Title IX type laws proposed in Congress have not necessarily passed just because of bipartisan support.  (I'm thinking of the High School Athletics Accountability Act, the Safe Schools Improvement Act, and the Student Nondiscrimination Act).  We will have to wait and see if CASA gets taken more seriously because of the high profile nature of the problem of campus sexual assault. 

Massachusetts Adds Transgender Protection to Antidiscrimination Laws

In my home state of Massachusetts, the legislature recently added a prohibition against discrimination on the basis of gender identity to anti-discrimination laws that cover education. Gender identity is defined int he law to mean "a person's gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth."

According to the Massachusetts Transgender Political Coalition, which advocated for the law along with GLAD and others, the new law "would make clear that it is illegal for public schools to discriminate on the basis of a student's gender identity, and it would strengthen the school's ability to protect students from violence." This is an important clarification because even though transgender students face an elevated risk of bullying and harassment, federal law does not enumerate protection for gender identity, and not all courts interpret gender-identity discrimination as a subset of sex discrimination that is already prohibited by federal Title IX and others state anti-discrimination laws.

Other states that already have anti-discrimination or anti-bullying laws that protect transgender students are: Connecticut, California, Colorado, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, North Carolina, Oregon, Vermont, Washington, and Washington D.C.

Petition for data collection in high schools

As we have noted previously, there is a bill currently in the US House of Representatives that calls for the collection of data about gender equity in athletics in high schools--similar to that collected by the Department of Education. If you would like to urge Congress to pass the High School Athletics Accountability Act, you can go here and sign the petition. Your email address is required but will not be displayed. You can also choose not to have your name displayed.

Student Nondiscrimination Act Introduced in Congress

Yesterday, Representative Jared Polis (D-Co.) introduced in the House of Representative a bill that would provide Title IX-like protection to LGBT students. If passed, the Student Nondiscrimination Act would offer remedies for discrimination that targets students because of their "actual or perceived sexual orientation or gender identity."

This law is sorely needed. GLSEN reports that 86.4% of LGBT students who responded to a 2007 school climate survey said they had been harassed in the past year. 60.8% said they felt unsafe at school because of their sexual orientation. Yet, there is no federal law protects students from discrimination on the basis of sexual orientation and gender identity, like there are for protected categories of sex (Title IX), race (Title VI of the Civil Rights Act, which applies to public accommodations), and disability (Rehabilitation Act, ADA). Some courts have interpreted Title IX and the Equal Protection Clause to protect LGBT students, but no uniform standard or scope of protection has resulted from these limited decisions. Additionally, while 14 states enumerate protection for students on the basis of sexual orientation and an additional 10 supply protection on the basis of gender identity, students in most states are without protection of state law (see map here). The Student Nondiscrimination Act would provide a uniform standard of protection, one that would not be subject to the interpretation of federal courts or to the willingness of state legislatures. I hope to be able to provide many more updates to this post as the bill makes its way through Congress and the President and becomes the law of the land.

Changes to Ledbetter Imminent in New Administration

President-elect Obama and Democrats in Congress will give high priority to legislation that would overturn the Supreme Court's 2007 decision in Ledbetter v. Goodyear Tire, yesterday's NY Times reported. In Ledbetter, the Court rejected that ongoing discrimination started a new statute of limitations every time it occurred. Thus, the plaintiff, Lilly Ledbetter, had to challenger her employer's salary decision, which she argued was discriminatory on the basis of sex in violation of Title VII, three months from when when her salary was first determined, rather than three months from any given paycheck. This interpretation of the statute of limitations is ridiculously stingy, since it often takes a little while before ongoing discrimination is apparent to a plaintiff. As a result plaintiffs are denied legal recourse in what may be valid discrimination cases, simply because the plaintiff they didn't notice the discrimination right away.

Because the Court's decision is based on an interpretation of a statutory provision, Congress can essentially void that interpretation by amending or superseding the statute in question. This is apparently exactly what the Democratic majority Congress, with the support of the new President, plan to do. Such anti-Ledbetter legislation would have an impact beyond employment discrimination cases under Title VII, as the decision has been used by lower courts to deny cases in a variety of civil rights contexts. We've seen one example already of the Ledbetter decision used to reject a Title IX suit filed by female wrestlers at the University of California at Davis, who tried to challenge discriminatory treatment that occurred between 2000 and 2001 and produced effects that lasted even longer. The lower court applied the Ledbetter rationale and a two year statute of limitations to conclude that a suit filed in 2003 was untimely -- the plaintiffs had to file two years from when the discriminatory treatment began in 2000. New legislation to restore the fairness of a longer statute of limitations would thus be beneficial to Title IX plaintiffs as well.

A Title IX for Disabled Athletes?

In July, political efforts to enhance opportunities for disabled student-athletes reached two noteworthy milestones.

First, a law in Maryland requiring schools to provide equal access to sports and physical education classes to disabled athletes -- the first of its kind -- went into effect. The Fitness and Athletics Equity for Students with Disabilities Act gives Maryland schools three years to figure out ways to ensure participation opportunities for athletes like Tatyana McFadden, a wheelchair athlete who became the issue's public face after she sued for the right to participate in on her high school's track & field team, as well as to make equipment and facilities accessible. The only limitation on schools' obligation applies when inclusion "presents an objective safety risk" to the student or others or "fundamentally alters the nature" of the class or athletic programs. Advocates of the new legislation, including McFadden's mother, are calling the law the Title IX for disabled athletes. And, it seems, the opposition to the law will also strike a chord familiar to Title IX advocates, as some are concerned that the inclusion mandate could dilute the opportunities for 'real' athletes (those with "championship aspirations" in the words of this columnist).

After Maryland's law, the second milestone in the area of disability rights occurred when both houses of Congress held briefings on whether a law like Maryland's should apply on the national level. Aimee Mullins, president of the Women's Sports Foundation, analogized the likely effect of such a law to that of Title IX, testifying that "a similar law for the disabled could have the same impact." Advocates acknowledge that their political efforts are only at the "starting point" but suggest that a good first step would be for the Government Accountability Office to conduct a study of discrimination against disabled athletes in phys ed and scholastic sports -- something that the office routinely does in the area of gender.

How the Civil Rights Act of 2008 Would Change Title IX

This week Democrats in the House and Senates introduced the Civil Rights Act of 2008 (H.R. 2159 & S. 2554). In a variety of contexts, this bill would strengthen civil rights protection and/or restore such protections that have been undermined by recent Supreme Court decisions. Some aspects of this proposed legislation would affect Title IX. One would make it easier to state a cause of action for harassment. Another would confirm that plaintiffs can sue schools for unintentional discrimination that has a disparate impact. I will address each one of these in turn.

I. Harassment

The Civil Rights Act of 2008 would make it easier for students to bring sexual harassment claims against educational institutions receiving federal funds. As noted in the bill, the Supreme Court decisions regarding sexual harassment under Title IX, Gebser and Davis, limit schools' liability to only those instances of harassment about which they had actual notice, acted with deliberate indifference, and which were so severe and pervasive to preclude victims' access to educational programs.

The proposed legislation would "reverse Gebser and its progeny and restore the availability of a full range of remedies for harassment" on the basis of sex, as well as harassment on the basis of race, age, and disability. Specifically, the statute would allow harassment victims to seek money damages against a school unless the school can show that it acted with "reasonable care"and that the victim "unreasonable failed to take advantage" of preventive or corrective opportunties offered by the school that would have likely prevented the harm.

In this article posted by the American Constitution Society, NWLC's Fatima Goss Graves makes a compelling case in support of this reform. She provides examples of real court decisions that dismissed victims' claims under the deliberate indifference standard, but would likely have come out differently had the courts applied a reasonable care standard instead.

II. Disparate Impact

In 2001, the Supreme Court held that plaintiffs did not have a private right of action under Title VI, the statute prohibiting race discrimination in public entities, to sue a covered entity for discrimination that was unintentional but had a disparate impact on members of the plaintiffs' race. Ever since then, the right of action to bring disparate impact claims under other civil righs statutes, including Title IX, has been in question. Prior to the 2001, for example, a court had held that female applicants to a scholarship program could challenge the program's reliance on a standardized test on which men tended to do better. After 2001, similar disparate impact challenges are likely foreclosed.

The Civil Right Act of 2008 would "reinstat[e]" that right of action for Title VI claims and "confirm[]" that right for other civil rights statute. Specifically, the statute would allow a plaintiff to maintain a cause of action against a school if the plaintiff can show that the school "has a policy or practice that causes a disparate impact on the basis of sex and that the [school] fails to demonstrate that the challenged policy or practice is related to or necessary to achieve the nondiscriminatory goals of the program or activity alleged to have been operated in a discriminatory manner."

The bill is now being considered by appropriate committees in each house.

h/t Feminist Law Profs
See also Workplace Prof Blog

Senator Proposes "California Title IX"

At the conclusion of this week's hearings into gender (in)equity in the California State University system -- motivated by the multi-million dollar jury verdict against Fresno State -- Senator Dean Florez has made a number of recommendations for reform that he calls "California Title IX."

One recommendation is for CSU to tie job performance of University presidents and top administrators -- and consequently, eligibility for raises and promotions -- to campus compliance with three Title IX goals that were outlined in a consent decree that ended an earlier lawsuit against the university system. Those three goals are: (1) to attain a percentage of female student athletes that is within 5 percentage points of the percent of women in the student body; (2) to ensure that the percentage of the athletic budget for women's athletics is within 10 percentage points the percent of women in the student body; and (3) to ensure that the percent of athletic scholarships for women is within 5 percentage points of the percent of women in the student body.

Incidentally, Fresno State actually already complies with the first goal, but if this proposal went into effect, they would have to increase scholarship dollars and operating expenses for the women's athletics. The campus is 58% female and women receive only 46% of athletic scholarship dollars and 31% of the operating expenses.

Another of Senator Florez's proposals would create a new Gender Equity Office that would be responsible for compliance and would report directly to the CSU Trustees. Currently, each institution's general counsel doubles as the Title IX compliance officer. Because the university counsel answers to the president, this change would ensure that the person responsible for compliance could go above the president's head and prevent the president from stonewalling investigations or other compliance-seeking measures.

This change would also help the general counsel avoid what is sometimes a conflicting interest between enforcement and compliance. When compliance is measured internally, the institution will often factor in whether a particular compliance measure is cost effective. If the risk of getting penalized for noncompliance is low and the cost of the compliance measure is high, the general counsel may exploit the "gray areas" of a legal requirement, as a university counsel explained in a recent column in the Chronicle. Therefore, external enforcement is a necessary supplement (or substitute) for internal compliance.

But does Florez's proposal do enough to externalize gender equity enforcement? The Gender Equity Office may be external to each university, but still operates internally within university system and answers to the Trustees, who are also concerned about compliance costs, and as such, might be as just as likely as presidents and general counsels to invoke lenient interpretations of regulatory requirements. I wonder if the policymakers in Sacramento have considered implementing enforcement at the state level?

PA proposes mandatory reporting

The Pennsylvania state legislature has introduced a bill that would require secondary schools (both middle and high schools) in that state to report their athletic department expenditures and rosters. Not too long ago the state asked nicely for this data but few school districts replied.

The reporting is similar to that done by colleges and universities. As we wrote about some time ago, two different congresswomen (Senator Snowe and Representative Slaughter) proposed two similar federal bills that would require secondary schools to report such data.

The PA bill is, obviously, a state initiative and one that the state would fund to the extent that it is offering to foot the $250,000 bill for the software required for reporting. Several other states, California, Georgia, Florida, and Washington, already have such legislation.

House of Representatives Passes Resolution Honoring Title IX

Congresswoman Mazie Hirono (D-Haw.) introduced a resolution to honor Title IX and to acknowledge the need to continue working toward gender equity in education.

The official title of H.Res. 406 is: "Celebrating the accomplishments of title IX of the Education Amendments of 1972, also known as the Patsy Takemoto Mink Equal Opportunity in Education Act, and recognizing the need to continue pursuing the goal of educational opportunities for women and girls."

Here is the text of H.R. 406, which was adopted on Monday, June 18:

RESOLUTION
Celebrating the accomplishments of title IX of the Education Amendments of 1972, also known as the Patsy Takemoto Mink Equal Opportunity in Education Act, and recognizing the need to continue pursuing the goal of educational opportunities for women and girls.

Whereas 35 years ago, on June 23, 1972, the Education Amendments of 1972 containing title IX was signed into law by the President;

Whereas Representatives Patsy T. Mink and Edith Green led the successful fight in Congress to pass this legislation;

Whereas title IX prohibits discrimination on the basis of sex in the administration of any education program receiving Federal financial assistance;

Whereas remarkable gains have been made to ensure equal opportunity for women and girls under the inspiration and mandate of title IX;

Whereas title IX serves as the nondiscrimination principle in education;

Whereas title IX has moved this Nation closer to the fulfillment of access and opportunities for women and girls in all aspects of life;

Whereas title IX has increased educational opportunities for women and girls, resulting in improved graduation rates, increased access to professional schools and nontraditional fields of study, and improved employment opportunities;

Whereas title IX has increased opportunities for women and girls in sports, leading to greater access to competitive sports, and building strong values such as teamwork, leadership, discipline, work ethic, self-sacrifice, pride in accomplishment, and strength of character;

Whereas on October 29, 2002, title IX was named the `Patsy Takemoto Mink Equal Opportunity in Education Act' in recognition of Representative Mink's heroic, visionary, and tireless leadership in developing and winning passage of title IX; and

Whereas 35 years of progress under title IX is widely acknowledged, but because women continue to earn less for work than men with the same educational background; sexual harassment remains pervasive in schools and on college campuses; women and girls face substantial barriers in pursuing high-wage fields such as science, technology, engineering, and math; and women and girls' sports teams do not receive an equal share of resources, including fewer recruiting and scholarship dollars at the college level; and athletic participation opportunities still lag behind those provided for men, there is still much work to be done if the promise of title IX is to be fulfilled: Now, therefore, be it

Resolved, That the House of Representatives celebrates--

(1) the accomplishments of title IX of the Education Amendments of 1972, also known as the Patsy Takemoto Mink Equal Opportunity in Education Act, in increasing opportunities for women and girls in all facets of education; and

(2) the magnificent accomplishments of women and girls in sports.

And here is the speech given by Rep. Hirono in support of the resolution:

Ms. HIRONO. Madam Speaker, I rise today to introduce a resolution celebrating the 35th anniversary of Title IX of the Education Act Amendments of 1972. Thirty-five years ago, a college applicant could be denied admission simply because she was a woman.

Title IX of the Education Amendments of 1972 changed that. Led by the late Representatives Patsy T. Mink and Edith Green, Congress established a principle we often take for granted today--the prohibition of sex discrimination in any federally funded educational program. The results are astounding.

In 1972, only 9 percent of JDs were earned by women. Today women earn almost half of all law degrees. In fact, I am one of the many women able to go to law school because of Title IX. The story is similar for MDs and PhDs.

There are also, of course, the athletic opportunities. Here too, the change from 1972 to 2007 is astounding. Today, college athletic opportunities abound for young women. And the recent surge in women's professional sports teams could not have happened without the dramatic increase in women playing college sports.

These successes--both academic and athletic--are worth celebrating, as are the women who came before us here on the House floor as leaders of the Title IX movement. In 2002, after Representative Patsy T. Mink passed away, Chairman MILLER introduced a bill that named Title IX the ``Patsy Takemoto Mink Equal Opportunity in Education Act.'' I have a picture of Patsy hanging in my office. She is an inspiration to me. And I know that if she were here today she would remind us that our work is not finished.

There are many problems still to be addressed. Women continue to face substantial barriers, especially in high wage fields such as science, technology, engineering and math. Sexual harassment remains pervasive in schools and on college campuses. Women and girls' sports teams still do not receive an equal share of resources.

Title IX is as necessary today as it was in 1972.

I am pleased to have over 100 original cosponsors on this bill, including Speaker PELOSI. I urge the rest of my colleagues to join me in celebrating Title IX's successes and in recognizing the work still to be done in our march toward equal educational opportunities.

***

Many thanks to Rep. Hirono for so eloquently stating why Title IX continues to be so important today.

Title IX Resolution Soon to be Introduced in Congress

According to the American Association of University Women, Representative Mazie Hirono (D-HI) will soon be introducing a resolution celebrating Title IX's success and recognizing the need for its continued enforcement.

AAUW's website makes it extremely easy to email your congressional representatives to encourage them to cosponsor this resolution along with Representative Hirono.

Legislative Updates in California, Iowa

California's legislature is considering legislation that would protect GLBT students from bullying, similar to legislation that passed in Iowa earlier this year. According to Equality California, the group that is spearheading the lobby effort:

Nearly 8 percent of California students report being harassed because of their actual or perceived sexual orientation, according to the 2004 Safe Place to Learn report issued by the California Safe Schools Coalition and the 4-H Center for Youth Development at UC-Davis. In addition, more than 91 percent of all youth report hearing students make negative comments based on sexual orientation

Meanwhile, Iowa legislators seem to have decided that protecting gay students was such a good idea that they might as well protect all gay Iowan from discrimination. The state senate recently voted to add sexual orientation to the statewide nondiscrimination bill that covers employment and public accommodations.

Proposed Legislation Would Increase HS Title IX Compliance

Last week Senator Olympia Snowe of Maine introduced the High School Sports Information Collection Act (S. 518), a bill that would require the government to keep statistics on secondary school athletic programs, including the gender and racial breakdown of participants and teams' respective budgets.

At the same time, a similar bill called the High School Athletics Accountability Act (H.R. 901) was introduced in the House of Representatives by Rep. Louise Slaughter of New York. This bill would amend Title IX to require schools to disclose information regarding the number and gender of their athletic participants and the budgets for girls and boys teams.

In 1996 Congress passed a similar measure for colleges and universities. The Equity in Athletics Disclosure Act requires postsecondary schools subject to Title IX to disclose statistics on athletic participation, including gender breakdown of participants and budgetary inforamtion. The reported data, which are publically available on the Department of Education's website, greatly enhance the public's awareness of Title IX violations and compliance.

The AAUW's website has a handy form that anyone can use to urge members of Congress to support this pending legislation that would extend such disclosure requirements to high schools.