What reversion to 2020 means

This administration's Department of Education issued a memo last week stating that the 2020 guidelines are now back in effect. My institution sent an email to that effect recently as I suspect many others did. But the specifics of what the change meant were not provided (not surprising given how opaque the process remains nationwide). 

The Biden rules were only recently implemented so perhaps the old rules are not so foreign, but given that this administration called Biden's DOE take on the law "an egregious slight to women and girls" it is worth (re)examining what the DeVos era rules require. 

The 2020 rules were a more subtle version of countering ideologies that conservatives saw as part of a DEI agenda, including supposed discrimination against men during the adjudication processes college and universities were using to respond to accusation of sexual assault. 

So we are back to:

• the often times traumatizing mandate for live hearings in which the accused can question the accuser
• a narrower definition of sexual assault and harassment that required it be "so severe, pervasive, and objectively offensive" that it effectively denies a person equal educational access.
• I insert here my plug for the 2024 book On the Wrong Side: How Universities Protect Perpetrators and Betray Survivors of Sexual Violence by Nicole Bedera, which I am making my way through now. Bedera talks about the book, whose research occurred during the Trump admin part I but before finalization of the DeVos rules, here. (Spoiler: she doesn't think that any administration's rules went far enough.) A main theme is how many victims leave school after encountering barriers during the reporting process. 

• a narrower scope for what kind of cases schools can pursue in terms of location of alleged incidents (on campus or at school-sponsored events)
• reduced liability for schools who must show "deliberate indifference" to an accuser's report of sexual or domestic violence; deliberate indifference is difficult to prove

Biden's DOE rules notably expanded protections based on gender identity and are arguably the reason they were legally impeded and eventually overturned, which happened before the inauguration, even though the current DOE seems to be taking the credit. 

Now we have an even more difficult reporting process for sexual assault and harassment and fewer protections for all victims of gender-based* assault, discrimination, and harassment.  

So time for another reminder: women's issues are trans issues are race issues are poverty issues. This reversion to 2020 rules were certainly part of the effort to appeal to conservative values by vilifying trans people, the larger LGBTQ community and their allies and they will not protect women and girls, an action this version of the administration has no interest in. 

* not sex because I don't hear a lot of discourse about how that XY chromosome was dressed or the amount of alcohol the human with less than 5 nanomoles/L of testosterone had to drink

Federal Funding to Chicago Public Schools is Suspended

The Chicago Tribune reported last week that the Department of Education is suspending some funding to the Chicago Public Schools because of a record of "serious and pervasive violations under Title IX" and its "slow and incomplete responses to federal investigators who are looking into two student complaints filed in recent year."

This is notable departure from the Department's standard practice of using federal funding as leverage to get school districts and other educational institutions to correct their Title IX problems on a going-forward basis, without ever having to actually make good on the threat to terminate funding. 

Title IX generally contemplates an all-or-nothing approach to federal funding; recipients that violate the law are subject to termination, not just to some funding but all of it. For this reason, I've sometimes described this penalty as a hammer that is too big to use. Yet, that does not seem to be what is happening in the CPS case. If one of the country's largest school districts had lost all of its federal funding over Title IX violations, we'd have expected more (a) process -- since the Title IX regulations provide for a series of procedural steps, including a hearing and possibly appeal before that can happen -- and (b) fanfare, because the drastic step of terminating all federal funding over violations of Title IX has never occurred in the past.

Here, it seems that the agency has creatively isolated only federal funding from a particular grant program to qualified magnet schools (presumably on the grounds, detailed in the regulations of the Magnet Schools Assistant Program, that the school districts applying for the grant attest that they not engage in sex and other forms of discrimination) to open up some more options for enforcement besides all and nothing.  By focusing on only one grant program, the agency was (apparently) able to suspend millions of dollars by simply sending a letter -- sidestepping the hearing and other procedural steps necessary to terminate all funding. This has both an upside and a downside, so far as I can see.  The upside is that because of the consequences meted out to CPS, CPS and other school districts might do a better job in the future addressing Title IX issues proactively rather that waiting for the Department of Education's OCR to show up and investigate. On the other hand, this administration is not a fan of public schools, so I would be curious about what procedural safeguards CPS had to ensure that the decision to suspend this funding was fair. It is also unclear what opportunity CPS might have to restore the funding that was lost. (That the article used the words "withheld" and "suspended" rather than "terminated" suggesting the possibility that this is a temporary or conditional decision.)  

Vast Majority of Public Comments Supported 2011 DCL, Research Shows

Interesting and helpful research by a Title IX expert and law professor Nancy Chi Cantalupo and colleagues, posted recently on SSRN, documents overwhelming public support for the Obama Administration's 2011 Dear Colleague Letter, which the current administration has repealed and is in the process of replacing.  The researchers examining public comments the Department of Education received in 2017 in response to a call for public comments on Executive Order 13777 (establishing a federal policy to “alleviate unnecessary regulatory burdens”).  Of the comments received, 12,000 specifically addressed Title IX. The researchers' review and coding of those comments generated findings like these:

● 99 percent (n: 11,893) of the commenters filed a comment in support of Title IX, with 97 percent of Title IX supporters (n: 11,528) specifically urging ED to uphold the 2011 Dear Colleague Letter: Sexual Violence (2011 DCL). Only one percent (n: 137) filed comments opposing Title IX, of which 90 percent (n: 123) specifically urged that ED rescind the 2011 DCL.

● Even accounting for the fact that many pro-DCL commenters used the same core language, the vast majority of *unique* comments (92%) still supported Title IX.

● Nearly all of the commenters who wrote in support of the DCL and Title IX identified themselves by name. In contrast, of the 137 comments that opposed Title IX, 44.5 percent (n: 61) were posted anonymously.

● Besides comments from individuals, the agency also received comments from two non-profit organizations that had 38,713 and 10,190 signatories respectively, which bring the total expressions of support for Title IX and the DCL to 60,796, in marked contrast to the 137 comments in opposition.

To be sure, comment periods are not a pubic referendum. Agencies are not required to tally the number of comments and adopt the position of the majority.  But agencies are required to express a cogent rationale for their policy choices. If an agency states that it is reversing an existing policy because that policy is unworkable and unpopular, as Secretary DeVos has said, and that statement is defied by an overwhelming record of evidence to the contrary, that agency might not be able to successfully defend that reversal in court if it is challenged.

Baylor is irredeemable

This week we learned that Baylor planted a mole inside student groups comprised of sexual assault survivors in order to both shape the PR/recovery efforts and to encourage the women to shift their paradigms and language about what happened to them when the school failed (a word they were encouraged to abandon) to investigate and address their claims of sexual assault.

Also this week, Dr. Roxanne Gay published a piece of commentary in The New York Times about the return to the public sphere of celebrity men who had been accused of sexual misconduct.

And, finally, as Erin wrote about, there are the Department of Education's proposed rule changes to the sexual assault guidelines for schools.

It was a tough week. These three events, on their own, are each frustrating, maddening, demoralizing. I will focus mostly on Baylor in this post, but what I took from this week, from these things--in the aggregate--is that they are a clear demonstration of how little we care about victims and how little attention is given to prevention.

As I write this post, Gay's latest book, an anthology of stories about rape and sexual assault called Not That Bad: Dispatches from Rape Culture sits on my end table where it has been for weeks. I have not had the emotional fortitude to pick it up. I certainly do not have it this week. But I know I must begin to read these stories--as everyone who has the ability to should. Because as the Baylor news and the surprise appearance of Louis C.K. at the Comedy Store in NYC this week, and the rumors of Matt Lauer's return to public life reveal--victims' stories are being erased, manipulated, and conveniently forgotten.

Baylor engaged in manipulation--horribly offensive and immoral behavior. (Is it even necessary to say "especially for a religiously affiliated school that implicitly claims a moral high ground"?)
Baylor, of course, denies the characterization of the Director of Student Activities, Matt Burchett as a mole saying that students were free to turn down his suggestions and that he was just keeping administration apprised of what was happening among the student body; in other words--this is his job. There was no respect for confidentiality, and there were no good intentions in regard to helping these students.

The utter violation of trust--at multiple turns--is one of the things I found so astounding in this story. These students already did not feel supported. They went to administrators to share their stories and nothing was done. Some were told that the person they reported as their assailant already had reports against him. There are so many accounts, from victims across the country, that include stories about being re-traumatized. Some victims have shared that the greatest trauma. the greatest violation, was what happened after their assaults.

It is time to shift the thinking about what constitutes "action" when we are talking about and reporting on sexual assault complaints on college campuses. Let's stop saying that schools did nothing in response to reports of sexual assault and harassment on their campuses. Because ignoring a complaint is doing something. Because telling a student that her reported rapist has other complaints against him and yet he is still on the football team, is doing something. It is denying a student action, a version of safety, access to education. It is breaking the law. It is doing harm. There is nothing passive about these actions. The deliberateness of Baylor's response not to the actual assaults but to the negative publicity the school and administrators received when the culture and patterns of sexual violence were revealed reflect this.

One issue with the proposed new regulations is that schools' active inactions, what Erin referred to as the "insufficient response," will not necessarily result in liability. (It was pretty clear that Baylor responded with deliberate indifference, so the proposals would not necessarily leave them unaccountable.)

I want to point out that we are not even talking about stopping or curbing rape, assault, and harassment--not really. We are talking about how effectively schools are responding to these incidents. The discussions about climates of sexual violence are side conversations at this point. The focus of activism and certainly of lawsuits and complaints is about how schools address reported rapes--not about how to stop them from happening in the first place. And while these things might, in some ways, be related, those connections are not explicit.

What is a sufficient/an effective/a just response, is at issue in the Baylor case and also a topic in Gay's column.  She writes about the #metoo movement and men in the public sphere, but her work is applicable to what is happening on college campuses and what could/will happen if the proposed regulations are put into effect (after the public comment period). I excerpted the following from Gay's piece that I found particularly relevant:

And this is what is so difficult about justice and sexual violence — the repercussions of the crime can last a lifetime. Satisfying justice may not be possible, but we can certainly do better given that all too often, victims of sexual harassment and violence receive no justice at all. 

We spend so little energy thinking about justice for victims and so much energy thinking about the men who perpetrate sexual harassment and violence. We worry about what will become of them in the wake of their mistakes. We don’t worry as much about those who have suffered at their hands. It is easier, for far too many people, to empathize with predators than it is to empathize with prey.

We see this empathy in the support for the backlash movement in which the accused are suing their institutions, claiming versions of reverse discrimination and sexism. We see it in the proposed rule changes and the Secretary of Education's public comments about campus sexual assault and a "fair" process for everyone. We see it in the support for fired football coach Art Briles.

Less publicized is the vitriol aimed at the women who file reports and complaints. We do not keep statistics about how many of them leave their institutions. How many vile things are tweeted or posted on Facebook and other social media platforms about them.

And while there are numbers about how many schools are facing complaints, the majority of the stories behind these complaints are far less public than the ones at Baylor, which--like Louis C.K.--continues to press on largely unscathed and offering little in the way of apologies.

Proposed New Sexual Misconduct Rule Imports Deliberate Indifference Standard

The New York Times is reporting that it has obtained a copy of its proposed rule addressing educational institutions obligations under Title IX to respond to sexual misconduct, which the Department of Education is planning to release for public comment.

Though the proposed rule contains many departures from the guidelines presented by the previous administration, right off the bat it is worth noting that at least it appears to retain the basic idea that sexual misconduct, even when it is a crime, is still a legitimate basis for investigation and discipline by colleges and universities. There are no wild proposals to outsource all campus investigations to police and prohibit universities from being involved.

Reportedly, however, the proposed rule makes it easier for institutions to avoid Title IX liability for insufficient response to sexual misconduct by essentially importing to the context of government enforcement the very narrow that the courts use for finding institutions liable for money damages. There are three components of that judicial standard that are reflected in the proposed rule: (1) it uses a narrow definition of sexual harassment*, and it only imposes liability when (2) a campus official with authority to address the misconduct have actual notice of the harassment, and (3) that the campus responds to that notice with deliberate indifference.

This proposed adoption of the judicial standard is misguided because the reasons that standard is so narrow absolutely do not apply to government enforcement of Title IX.  When the Supreme Court developed the standard for cases in which students sought money damages against an institution for its violations of Title IX, it explained that it had to be a narrow one because Title IX is primarily a contract between an institution and the government: the institution gets federal funding, but agrees to follow the government's rules about sex discrimination in exchange. Students are, essentially, third party beneficiaries to this contract. It would be unfair, said the Supreme Court, to blindside institutions with the possibility of paying large damages awards to their students, as a consequence of accepting these obligations owed to the government. As such, the Court said, we are only going to impose that kind of liability in a narrow set of circumstances: limited examples of sexual harassment, that the university essentially intended to ignore through its deliberate indifference to known instances or threats of such harassment.

Unlike judicial enforcement of plaintiff's claims for money damages, government enforcement does not risk blindsiding a university. It is always prospective in nature. The enforcement process, sometimes frustratingly so, gives universities ample opportunity to conform their policies and practices to OCR's requirements before they are ever faced with a financial consequence (loss of federal funding). In fact, no university has ever been subjected to that penalty. Universities always have an opportunity to decide, if they don't like the way the government is enforcing the law, to opt out of the contract in the first place, and suffer no penalty.  Consequently, as long as the agency's interpretation stays within the outer limits of Title IX, it can impose more specific requirements about what an institution needs to do to address sexual misconduct, and what misconduct triggers that response. There is no need to have an overly narrow definition of harassment, or the high burden of proving actual notice and deliberate indifference.

The proposed rule is maddening because it imports the narrow standard of judicial liability into a context that it was not designed to apply. And the result is that it would let universities get away with doing far too little to address a problem that impairs the civil rights of its students. The deliberate indifference standard as it applies in the courts lets institutions off the hook for doing almost nothing in response to incidents and threats of sexual harassment (and sometimes courts applying the deliberate indifference standard absolved institutions for doing *exactly* nothing!).

There are other specific provisions of the proposed rule that also deserve attention. It would permit institutions to use the clear and convincing standard. It would permit them to use informal mediation in serious cases like rape. It would permit them to ignore sexual misconduct that takes place in off-campus student housing. At the same time, it subjects them to liability for ignoring the rights of accused students, which, given that complainants are only protected by the requirement to avoid deliberate indifference, seriously tips the scales in accused students' favor.

When the proposal is official released, there will be an opportunity for public comment, which theoretically could persuade the agency to modify the rule before it becomes final. So it's not a done deal. Major changes, however, would be unlikely.

*Specifically, the proposed would require that sexual harassment be "so severe, pervasive and objectively offensive that it denies a person access to the school’s education program or activity." In contrast, the previous administration's broader definition was "unwelcome conduct of a sexual nature," that includes "unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature."

OCR Finds Title IX Violations at UNC Chapel Hill

On the heels of investigative reporting into OCR's lower rate of enforcement of civil rights laws compared to the previous Administration comes news that OCR has found UNC-Chapel Hill violated Title IX by mishandling complaints of sexual harassment, concluding a five year investigation.

OCR found that the university's policies governing its response to sexual misconduct failed to ensure that the response was "prompt and equitable" as the regulations require. Specifically, OCR noted that UNC's policy involving complaints against students failed to provide adequate notice of certain appeal opportunities, and its policy involving complaints against employees failed to provide notice of complaint procedures, notice to both parties of the outcome of the hearing, and a right to appeal to both parties. The inclusion of that final finding directly contracts the interim policy with which OCR replaced the 2011 Dear Colleague Letter, which expressly withdrew the DCL's requirement to provide equitable appellate rights to complainants and respondents, though some reporting is calling this contradiction a "department error." 

OCR also review over 300 sexual harassment complaints that the university received since 2011. It found instances where the university employees involved in the process were inadequately trained, and noted that the university's failure to keep good records, especially in the 2011-2013 time period, prevented OCR from determining whether the outcomes and procedures were appropriate. It also found examples of unreasonably delayed proceedings, including one that took 213 days, and noted that it couldn't always tell if the university properly weighed the complainant's request for confidentiality against its obligation to provide a safe and nondiscriminatory environment.

UNC has entered into a resolution agreement in which it agrees to revise its policies for compliance and improve its response -- which OCR noted UNC has already begun to do. The resolution agreement also commits UNC to improve its training for students and employees on reporting and addressing sexual harassment.

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).

Decision Roundup: Displined Student Edition

Here are some examples of recent judicial decisions involving Title IX's application to student discipline:

The Ninth Circuit Court of Appeals ruled that a male student's Title IX claim against University of California at Santa Barbara should be dismissed because the plaintiff did not exhaust the administrative remedies available to him as a matter of state administrative law. The plaintiff should have first challenged the university's decision by filing a petition for administrative mandamus before challenging the decision in federal court without any other .  Doe v. Regents of the University of California, No. 17-56110, 2018 WL 2709728 (9th Cir. June 6, 2018).

A student at a performing arts high school who was suspended for sexual harassment could not proceed on a Title IX claim containing "conclusory" allegations that the school's decision to initiate the disciplinary proceeding was motivated by the student's gender as opposed to the allegations of sexual harassment made by his peers. Nor were his claims that the school treated other female students more favorably sufficient to support a claim of disparate treatment due to sex. In re the matter of John Doe, v. Saint Paul Conservatory for the Performing Arts, No. CV 17-5032 (DWF/FLN), 2018 WL 2431849 (D. Minn. May 30, 2018).

A student suing the New School over having been suspended for sexual assault did not sufficiently plead a Title IX claim because the complaint lacked particular facts sufficient to cast some "articulable doubt on the accuracy of the outcome of the disciplinary proceeding." Moreover, the plaintiff supported his allegation that the proceeding was tainted by gender bias by pointing to the panel's finding that he "lacked empathy." The court rejected the contention that this statement indicated the panel was relying on gender stereotypes, noting that the empathy finding lacked a "bona fide connection to gender." B.B. v. The New School, No. 17 CIV. 8347 (AT), 2018 WL 2316342 (S.D.N.Y. Apr. 30, 2018).

A court refused to enjoin the plaintiff's suspension from George Washington University on grounds that his Title IX claim was not sufficiently "likely to succeed on the merits." The student alleged in his complaint that the university was biased against males because it was under investigation from OCR, as well as under pressure from student protestors, over its alleged failure to discipline perpetrators of sexual misconduct.  The court conceded that this allegation could be sufficient to withstand dismissal, but did not rise to the level of likely success required for a preliminary injunction to issue. Doe v. Geo. Wash. U., 2018 WL1972461 (Apr. 25, 2018).

Eighth Circuit Rejects University's Sovereign Immunity Defense

A student sued the University of Arkansas, alleging that its response to her report of sexual assault on campus was deliberately indifferent in violation of Title IX.  The university sought dismissal on the grounds of sovereign immunity. Sovereign immunity is the constitutional doctrine that protects states -- including arms of the state, like state universities -- from being sued in federal courts. The exception, however, is when states consent to be sued or waive their sovereign immunity.  Traditionally, courts have agreed that accepting federal money amounted to a waiver of sovereign immunity.  Predictably, the federal district court in Arkansas denied the university's motion to dismiss on sovereign immunity grounds.

But the university fought this decision by appealing to the appellate court for the Eighth Circuit. It solicited support from five other states, who submitted an amicus brief asserting the same theory, that sovereign immunity protects a state university from being sued, at least for damages, under Title IX.  The states argued that a 2011 Supreme Court decision called Sossamon v. Texas changed the test for evaluating whether a state waived its sovereign immunity by requiring "clear declaration" by the state of its intent to so waive. Applied to cases arising under spending-clause statutes like Title IX, that means, the statute itself must contain "unequivocal" language that accepting federal money constitutes waiver.

Here, the relevant statute is the Remedies Equalization Act of 1986, which expressly provide that "a State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court" for a violation of Title IX and other enumerated federal civil rights laws.  The University of Arkansas's argument is that this statute, despite its clear language, does not clearly declare whether a state waives sovereign immunity for damages claims. In ruling against the university's appeal, the Eighth Circuit pointed out that the Remedies Equalization Act clearly stated that states shall be liable for "remedies at law and equity."  Remedies in equity are things like injunctions and declaratory judgments. Remedies are law, the court explained, are damages. The court also found evidence that Congress intended the waiver to apply to claims for damages.  Thus, the court of appeals concluded:

The Remedies Equalization amendment clearly and unambiguously expresses the University’s consent to Title IX suits for damages. By accepting federal funds, the University in fact consented to suits for compensatory damages for violations of Title IX.

Though the university's argument was a long shot, it generated a lot of attention and concern over its potential to seriously curtail the effectiveness of Title IX as a remedy for state university students whose reports of sexual assault generated the institution's indifferent response. These cases are usually driven by a damages claim (as opposed to, say, Title IX athletics cases where the plaintiff is trying to get more resources, or to reinstate a discontinued team).  A university's indifference to sexual assault causes emotional distress, creates expenses (if it causes the student to transfer or otherwise interrupts their education), and may even subject the student to subsequent sexual harassment or misconduct, with its own resulting damages.  If the court had somehow ruled in favor of the university on this matter and prevented state university students from seeking this relief, those students in the Eighth Circuit would have experienced a serious curtailment of their civil rights. The court's rejection of this argument, however, preserves the federal courts as a forum where Title IX claims arising from sexual misconduct can be addressed and where compensation, if warranted, be awarded.

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).

Is #metoo for colleges and sports?

The recent, daily, and ongoing revelations about sexual assault and harassment in Hollywood, the media, and government may be disheartening, heartbreaking, maddening but likely not surprising.

If there was ever any question that sexual assault and harassment is an epidemic, that question should now be answered. The past several years, however, in which we saw more and more activism around and attention given to campus sexual assault should have been an indication--in the form of a giant, blinking neon sign--that this is a problem.

I have been thinking a lot about the recent accusations, confessions, and the general discourse and how it relates to what we already know, steps already taken, and what comes next. The rest of this post includes my initial thoughts about how what has happened on college campuses is related to the current moment.

As someone who has written and spoken about campus sexual assault for a very long time now, I am somewhat dismayed at the cultural shock over the idea that some men behave very badly. College women have been telling us for decades about sexual violence in higher education. To think that incidences of rape, assault, and harassment decrease after college is naive--at best; as if men grow out of the behavior or women become less susceptible. So I find it curious that no one (that I have seen) has made any connection between the movement to hold colleges and universities (and K-12 as well) accountable for investigating and ultimately decreasing sexual violence and the recent news about the assaults committed by powerful men in influential industries.

Perhaps it is because the recently accused men are famous and most of the college males accused are not. (The exceptions, of course, are the athletes in big-time athletics programs--more on this in a moment.) All these famous men were once anonymous young men, too. Power is certainly a factor--but is it a factor in who commits these crimes or in how it enables some to get away with them for so long?

One reason for the campus sexual assault epidemic being ignored in the current discourse about sexual violence is because it happens in the context of college. It has been very difficult to overcome the popular image of college men and women drinking too much and making "bad choices." The siloing of sexual violence committed by college students continues to perpetuate these stereotypes about how college men and women act and thus normalize sexual violence on college campuses. This is evident in how both the accused and the accusers in the recent stories are being treated.

I see far fewer people supporting the accused. In cases of college sexual assault there is still a very active backlash movement in which accused men are suing their schools--sometimes using Title IX--accusing administrations of gender discrimination during the student judicial process. There is not a lot of complaining about the actions (firings, suspensions) being taken against the recently accused famous men of Hollywood and mainstream media. And only a few--Roy Moore, most notably--have fought the accusations against them. Just like the student conduct processes many accused go through, the actions against these famous men are occurring outside the criminal justice system; again with very little questioning of this version of "justice."

Related to the above: far fewer people are questioning the accusers. While I am pleased to see this, I am shocked given what I have seen and read about in cases of campus sexual assault. How much did she drink? What was she wearing? Did she not know about that fraternity's reputation? Maybe she just changed her mind. How many other people did she kiss that night? Did she have a boyfriend? Most people seem to be believing the women who have come forward with accusations--even the ones who have done so anonymously. Campaigns to #believewomen are great, but I do not see them being extended, with the same force, to college women.

I do not know if we will begin to connect the dots--that sexual assault and harassment is product of (mostly) capitalist institutions imbued with patriarchy and misogyny whether that is a college or Congress. But we need to if we want college women's accusations against their male peers to be taken as seriously as actresses' charges against studio bosses.

Maybe we will. I have seen more and more accusations by current or former students--especially graduate students--against professors. There is a similar power dynamic in these relationships: someone controls another's future, success, career. How will these accusations be treated in light of those against the growing list of powerful men? While I will not guess at that, I do predict these accusations will grow. More former students, emboldened by those who have come forward, will speak out about the harassment and assault by men in academia.

What I remain uncertain about is whether the cultural moment will create a space for the women who have experienced sexual violence within sports cultures. If Jameis Winston had been accused last week of rape would Florida State have reacted differently than it did three years ago when it did nothing (except protect Winston and let his accuser be run out of Tallahassee)? Is the so-called tipping point we have allegedly found in regards to sexual violence going to spill all over the hallowed football fields of American universities and colleges?

We must also look at professional sports culture and sports media. Regarding the latter, the women of the Burn it all Down podcast addressed the lack of accusations in sports media where misogyny and harassment of women are well known and sometimes even documented (see the case of Erin Andrews).  As for the former, I wonder what will happen when the next woman comes forward to accuse a famous professional male athlete of rape. Will we believe her like we believed those who have spoken of the abuse by Louis C.K.? Or will we accuse her of being a gold digger or someone looking for 15 minutes of fame?

We have not "tipped" as a culture toward addressing and taking seriously sexual violence and harassment unless we take college women's accusations seriously and our concern for these issues extends into the behaviors of the powerful men in collegiate and professional sports and sports media.

Members of Congress Introduce Bill to Restore Withdrawn Guidance

Members of Congress announced this week that they have proposed a bill that aims to codify aspects of the Obama administration's 2011 Dear Colleague Letter and related guidance that was withdrawn by the Department of Education last month. It would also codify some of language in the Title IX regulations and the 2001 Guidance that the Department of Education is endorsing for now, but which could in the absence of statutory law theoretically be amended by new regulations or policy interpretations promulgated in the future.

The bill, authored by Representative Jackie Speier (D-CA) is called the Title IX Protection Act (H.R. 4030), and it would require that institutions:

• to designate a Title IX coordinator, and to disseminate a notice of nondiscrimination based on sex.
• to adopt and publish grievance procedures providing for prompt and equitable resolution of sex discrimination complaints. Grievance procedures may include voluntary informal mechanisms (e.g., mediation) -- but not for sexual violence cases.
• to address sexual harassment, including sexual violence, about which a responsible school employee knew or should have known. 
• to take "immediate action" to address a hostile environment created by sexual harassment, designed to "eliminate the harassment, prevent its recurrence, and address its effects". An actionable hostile environment is one "sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program," including an isolated incident of sexual harassment if the incident is sufficiently severe, such as rape.  This requirement to take action also includes interim measures to help the complainant deal with the effects harassment and avoid contact with the perpetrator.
• to process all complaints of sexual violence, regardless of where the conduct occurred, to determine whether the conduct occurred in the context of an education program or activity or had continuing effects on campus or in an off-campus education program or activity; this requirement applies even if law enforcement is already investigating. 
• to use the preponderance standard of evidence to adjudicate sexual misconduct matters --this had been a key requirement of the 2011 Dear Colleague Letter, but one that the current administration abandoned when it permitted institutions to substitute the higher clear and convincing evidence standard.
• to provide symmetrical procedural rights to both the respondent and complainant, including the right to attend the hearing, to present relevant witnesses and other evidence, to access to information that will be used at the hearing, to be accompanied by an advisor, and to appeal the initial decision. 
• to permit cross-examination by a third-party -- in order to minimize the potential trauma or intimidation to the complainant of being questioned by the person they have accused of sexual violence.
• in cases where the complainant requests confidentiality (thus limiting the school's ability to discipline the alleged harasser), to "pursue other steps to limit the effects of the alleged harassment and prevent its recurrence."
• to conclude investigations approximately 60 calendar days, with an exception for cases involving multiple incidents with multiple complainants or where there is a parallel criminal investigation.

Unfortunately, it is difficult to imagine this bill getting much traction in Congress in this political climate. Nevertheless, I believe this bill is valuable because it can serve as a focal point for political activism. It may produce a legislative record that could influence the political debate ongoing in general and in particular in the Department of Education as it considers revising the existing regulations and policies. Finally, the bill serves as a general reminder of the role Congress has to play in challenging the president when it disagrees with the administration's policies. 

What has been happening at Auburn?

Well whatever has been happening, it has been happening for a few years. But news of problems within Auburn University's softball program only emerged a couple of weeks ago when a former player filed a Title IX complaint alleging that an associate coach was sexually harassing and having sexual relationships with players. But the investigation into associate head coach Corey Myers's actions by the school began in a year ago spurred by anonymous ethics complaints.

Yet Myers did not leave the program until March (he took a 2-week leave of absence when the investigation began*) when he resigned citing the need to be with his family. He is the son of head coach Clint Myers who, not coincidentally, announced his retirement right before news broke of the Title IX complaint and who also said it was due to the desire to spend time with his wife, children, and grandchildren. The elder Myers is a highly regarded figure in intercollegiate softball having coached the very successful (in terms of wins) Arizona State Sun Devils before going to Auburn in 2014. He has also worked with USA Softball.

What has been published about the harassment and conduct of the younger Myers and how it was handled by Auburn suggests a cover up. The timing of the elder Myers's retirement announcement supports that hypothesis. Also, the athletics director said in late April 2017 that he had no knowledge of an investigation. And when Clint Myers told the press in early April that he would welcome his son back to the program and a reporter asked about a Title IX investigation he seemed offended that such a thing was even brought up.

The player who filed the Title IX complaint (which included allegations of both the abuse and the cover up) was a redshirt player who was cut following the end of the 2017 season. This scenario often leads to a sour grapes defense. However, the complainant's story has been corroborated by others you played under Myers and Myers. One player, who transferred to another school, showed the media suggestive text messages sent by the younger Myers to another Auburn player (she took pics of the texts). When these texts were brought to the administration as evidence, a member of the athletic department told those seeking redress that they could be arrested for sharing those messages. So it seems the athletics department was engaging in intimidation and cover up based on this version of events. Other former players have also come forward with stories of illegal behavior and attempts to get the school to address it. 

It is clear that the situation created tension within the team. The player who was receiving the texts did not implicate Corey Meyers during the Fall 2016 investigation. This caused division among the team even into spring 2017. An incident involving an Auburn player in an altercation with University of Florida head coach Tim Walton during the post-game high-five line now has some context. She and other members did not want to ride the bus with the uncooperative player. In other words, this situation and the way the staff and the administration dealt with it caused problems within the team. To an outsider it looked like a fairly successful season with a loss to a good team.

No word on whether or when OCR will investigate.



* according to one player, team members were encouraged to go to the administration during this time and advocated for Corey Myers's return.

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).

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.

And Princeton makes...

...three. As in the third Ivy League university to suspend a sports team this semester over racist, misogynist, and generally offensive messages among members. It is the fourth team when counting non-Ivy Amherst.

Princeton's swimming and diving team has been banned from competition pending an investigation which will inform administrators' decision over whether to cancel the rest of the season.

Like at Harvard, the comments were about members of the women's team. But other than that we do not know much. Unlike at Amherst, where the comments were revealed via a student publication, the issue came to the attention to the administrators via an anonymous complaint.

It is possible some comments will be leaked. I don't think we really need to know exactly what was said to see that the genie is out of the bottle. These are not going to be isolated incidents.

So while some people wait to see if Princeton officials will cancel the swim team's season, I am waiting to see how these events and the ones that will follow will be framed. Will people make a connection between the athlete culture that produces the athletes who write and disseminate these message and the sexual assault epidemic on college campuses? Will we start to look at "locker room culture" and think about sports beyond football and basketball? All the teams reprimanded/suspended/cancelled have been non-major teams--and at schools that are not considered "big-time college sports" schools. (I am not saying that athletes at these schools do not work as hard or as not as dedicated or that their sports are not important. I am speaking to the larger culture and categorizations of intercollegiate sports.) Will Title IX be used as a remedy or a consideration in these cases? Will we be able to talk about not just gender but race and sexuality and class as we engage in discussions?

So many questions. I suspect more cases will emerge before we start to get at answers.

Throwback Thursday, aka Updates

UCLA settled a lawsuit last month with two graduate students who alleged that administrators discouraged them from filing a formal complaint against a professor who sexually harassed and assaulted them. The settlement includes a financial settlement, part cash as well as a year-long dissertation fellowship to one of the plaintiffs. The situation for the history professor they accused of unwanted sexual advances has been in flux since the women initiated their complaint in 2013. He was suspended without pay for a quarter and resigned his position as director of the Center for Near Eastern Studies. He resumed teaching, but is not teaching this fall. He is scheduled to teach in the spring. He is not allowed to use his history department office during the week. His office hours are being held in a library on campus and he is being required to keep the door open while meeting with students. He is not allowed to have contact with one of the plaintiffs. (It seems the other has graduated.) He has to pay the UCLA Board of Regents $3,000.

The saga at Baylor continues, probably because they keep doing ALL THE WRONG THINGS. Granted they cannot control the behaviors of the people they have fired who continue to talk to the media. Though I am curious as to why Art Briles sat down with ESPN whose reporters have not been kind to the school if the many, many segments on Outside the Lines are any indication. The way Briles and former President Ken Starr have proceeded since their release is an interesting study in voice and silence. Sexual assault is a very silencing experience and only a few of the women who have joined the lawsuit against Baylor have spoken about their experiences. Some have asked to speak personally with Briles who said he has been prevented from doing so under terms of his release (his very lucrative release). So he cannot speak to them but he can speak publicly--about some things--the things he wants to talk about; the things he thinks will rehab his image and get him another coaching job next year.

Starr seems to be trying to help his friend, Briles, on this quest. He said in a room full of reporters in Texas that Briles was "honorable" and "unfairly criticized." He also said, in reference to the sexual assaults (apparently there is no gag order on him) that it was not a problem with the culture of Baylor or Baylor football. He was called out by a reporter who thought it hypocritical that Starr could address a culture of alcohol abuse on his campus but not sexual assault. And still these men get public platforms. The good(ish) news? Well all the talking is not helping public image. I have seen stories from sports journalists warning schools that might in the market for a new football coach to avoid Briles.

And now the Title IX coordinator has resigned. Patty Crawford, at Baylor since late 2014, said she was being prevented from implementing the changes outlined in the Pepper Hamilton report--the one Baylor itself commissioned when news of the sexual assaults became public. Crawford's resignation, her filing of a Title IX complaint with OCR, and her stories about how Baylor continues to violate the law suggest what many of us suspected: that report was a PR move. Who are they going to get to do that job? How are they going to explain themselves when OCR heads to Waco? Oh never mind. They promoted from within--of course:
               On Monday, Baylor said it had filled Crawford's post by promoting senior deputy                 coordinator Kristan Tucker, whom interim president David Garland called "a capable and experienced Title IX professional." (from ESPN article linked above)

It also appears that a Title IX investigator, one of two employees charged with investigating Title IX violations on campus, is no longer at the school. Whether she resigned or was fired is unknown.

On the same day that Crawford resigned, two more women joined the lawsuit against Baylor. That brings the total to eight. Only one of the eight women was raped by an athlete. The culture of sexual assault--that does not exist, according to Starr--is not confined to athletics.

The watered down California bill about LGBT discrimination at private colleges has passed. Governor Jerry Brown signed the bill which requires private schools to publicly post their gender and sexuality policies and to note any Title IX exemptions they receive from the Department of Education. The bill was originally written to prevent these schools from discriminating against LGBT students, but the outcry from religious schools and groups resulted in the compromise bill signed last week.

Not IX but...

Two stories this week that were tangentially related to Title IX or have Title IX implications.

First, the story everyone is talking about: Texas A&M's Chalk Talk for Women. Let's leave aside for now how these football for women camps/events are becoming a money-maker for intercollegiate football programs and what they exploit. The gist: offensive slides describing football tactics using sexual innuendo and re-writing the school fight song

Outside the Lines interviewed an attendee, a woman who is head of the Aggie Mother's Club. She defended the coaches and the event calling it satire and noting that no one she encountered during the event (there were 700 women registered) complained and that they enjoyed the presentations. She said she laughed it off and attributed it to the coach's sense of humor and time in the military. She did not feel it sent a negative message to people about anything because there was--in her opinion--no message being sent. She said the coaches were being attacked with negative messages. She is going back next year.

Others have noted that at a time when football programs especially are trying to teach young men to respect women, this was hugely inappropriate and a step backwards. It is inappropriate at any time, of course. But there factors that speak to the culture of the A&M program that could, if a Title IX issue arises, come to the forefront.

First, one of the coaches who made the presentation and was subsequently suspended without pay for two weeks was a former coach for the Miami Dolphins. An offensive line coach who was fired in the wake of the Jonathan Martin/Richie Incognito bullying scandal. This is an example of toxic masculinity and misogyny and how it travels from one institution to another.

[Side note: Jessica Luther's book about sexual violence and intercollegiate football is coming out soon and I am very interested in reading it. Here is an interview with Luther.]

Second, the Aggie female fan who found nothing wrong with the talk also is indicative of the culture of A&M football. It is possible that there was no visible reaction because 1) women did not feel comfortable speaking out or even walking out in that space which was marked by fervent fandom and sexism and.or 2) female fans expect and accept that behavior as the price of fandom. One must accept the culture as it is--just as that fan in attendance accepted the coach's sense of humor and attributed his demeanor to his military service.

This is especially troubling because when something happens and female student comes forward and says she was sexually assaulted by a player, those fans will turn on her. We have seen it everywhere. These victims get run out of town--almost literally--because of the backlash. The culture of football includes the culture of fandom and if programs are running events for fans that makes them responsible for this as well.

On a sightly more positive note, the two-week, no-pay suspension of the two coaches who ran the chalk talk, the condemnation of the head coach (who issued the suspension) and the school president is at least a demonstration that the program is not being indifferent to the issue. (I have a post planned about how Baylor keeps resisting this.)

The second story, which has received far less attention, is about racial discrimination in women's sports. Three Black female basketball players from Cottey College in Missouri are suing the school saying they were treated differently from white players. They spoke of segregated practices, less playing time, and eventually expulsion from the team for what the school is calling behavior problems.

Again, not Title IX, but a reminder that discrimination is intersectional and that Title IX does not address the issues that women of color face in sports. This story reminded me of Jennifer Harris's case against Penn State and Rene Portland as well as the one from earlier this spring from Iowa State. Head coach Bill Fennelly (along with the school) is facing charges from a former player that he discriminated against her because of her race. Nikki Moody said that the coach called her a thug and created a hostile environment. In sum, sexism is not the only type of discrimination female athletes face and racism happens regardless of how many people of color are on a team.

Teachers' Sexual Misconduct at Issue in Recent Cases

In the last month or so federal courts have made decisions in several cases in which sexual misconduct by teacher and coaches have given rise to Title IX litigation. Here is a summary.

A federal court in Pennsylvania refused to dismiss Title IX claims stemming from a music teacher's ongoing sexual assault of a student that began when she was in middle school and extended into high school. The male teacher had intercourse and engaged in other acts of sexual assault with the female student on multiple occasions and the student had gotten pregnant as a result. Twice the student reported the teacher's misconduct to another teacher.  School officials claimed they did not ever hear about the first report, but they did get the second.  Rather than investigating, however, they allegedly pressured the victim to rescind her claims against the music teacher. (Eventually the teacher plead guilty in a criminal proceeding.)  Especially when factoring in earlier complaints that this same teacher had harassed other female students, the court agreed that she had satisfactorily alleged notice and deliberate indifference, the key elements for institutional liability under Title IX. K.E. v. Dover Area Sch. Dist., 2016 WL 2897614 (M.D. Pa. May 18, 2016).

Also in Pennsylvania, a school district prevailed at summary judgment on claims that it violated Title IX by failing to protect a student from sexual abuse by her coach. In this case, school officials found out about the ongoing misconduct when the coach was arrested by police. There was no evidence suggesting that they knew about what was happening and failed to intervene. The coach had been dismissed from another school for sexual misconduct, but on inquiry from the defendant's athletic director, the coach's prior employer said that his dismissal was due to "excessive texting" of a student, which did not put the defendant on actual notice that the coach posed an imminent sexual threat to his players. Nace v. Pennridge Sch. Dist., 2016 WL 2609789 (E.D. Pa. May 6, 2016).

A female student on the predominantly-male wrestling team sued her Pennsylvania school district for failing to respond to her allegations of sexual harassment by the coach. The court disagreed with the plaintiff's characterization of the coach's behavior as sexual harassment and dismissed the claim. Specifically, the court acknowledged that the coach was "vulgar and inappropriate" -- he told the plaintiff and another female wrestler that they had to "be the boy" and ought to wear strap-ons. He teased other male wrestlers on the team that the plaintiff is the only girl he would ever touch or have on top of him. But, the court determined, this harassment was not sufficiently pervasive because the plaintiff alleged only about 10 sexually-tinged comments over 2-3 years.  Also, because the coach acted this way towards all the wrestlers on the team, he was not singling out the plaintiff because of sex.  Moeck v. Pleasant Valley Sch. Dist., 2016 WL 1553440 (M.D. Pa. Apr. 15, 2016).

Other states besides Pennsylvania contributed cases to this collection. A federal court in Georgia determined that the plaintiff had not sufficiently alleged that the school district was on notice of a teacher's sexual misconduct, and dismissed her case accordingly. The very day that the student's stepfather reported evidence of the teacher's misconduct to school officials, the district commenced an investigation. By the end of the day, the teacher had resigned and was facing criminal charges. Nothing in the plaintiff's complaint suggested that the school district had missed earlier opportunities to intervene, the court concluded. Specifically, the court rejected the plaintiff's argument that the school district was on notice because it knew that the teacher had been fired from an earlier job for sexual harassment. According to the court, this knowledge did not put officials on notice that the teacher posed an imminent threat to this particular student. Though the court did acknowledge past misconduct can in some cases provide notice of an imminent threat against a new victim, there must be a stronger pattern of past misconduct than what was alleged here. S.W. v. Clayton County Public Schools, 2016 WL 2755607 (M.D. Ga. May 12, 2016).

In this last case, the student did not claim that the school district was liable for the teacher's misconduct, but instead, for retaliating against him for having been involved in a sexual relationship with the teacher.  The court quickly dismissed this claim, noting that it failed to allege many required elements of retaliation. For one, the student himself did not engage in the requisite protected conduct by reporting the teacher's abuse; instead, school officials discovered it based on reports of other students. Additionally, there was no basis for concluding that the disciplinary action that the student later faced for chewing tobacco and other offenses were in any way related to his relationship to the teacher.  Gordon v. Traverse City Public Schools, 2016 WL 1566721 (W.D. Mich. Apr. 19, 2019).

More trouble at FSU

A "glitch" in the Florida State University student records system, controlled by a third party software company, has resulted in the release of 1600 emails detailing student conduct cases. Some of those are sexual harassment and assault cases which has raised concerns about whether those who complained are now in danger because an accused person could either find who his accuser was and/or the extent and details of an accusation.

The university has apologized but not taken steps beyond that to reassure those who have filed reports in the past that they are safe, according to some of those who have been affected.

If I was a conspiracy theorist, I would question this "glitch" in light of FSU's less-than-stellar record with Title IX issues. Why? Because if students are worried that their reports might not be secure--which clearly they are not--then they will not come forward to report harassment and assault. Lack of reporting is already a problem nationwide. This glitch has institutionalized it at FSU. Fewer reports means that the university does not have to deal with them and they do not have to report them to the federal government, which would make FSU look safer than it actually is. Even though the University took no responsibility for the Jameis Winston situation as they settled the lawsuit brought by Erica Kinsman, evidence about the number of unreported and uninvestigated sexual assaults occurring at FSU certainly raised concerns among potential students and parents who might send their children there.

But I am not conspiracy theorist. And I do not think that FSU administrators are happy about dealing with this situation. [Apparently the Title IX coordinator has been "up all night" addressing the information leak.]

Additionally, FSU is still under investigation by OCR. This situation is not going to help present a picture of an institution that has its Title IX house in order.

So it seems that this is just a really awful situation--for victims. Many of us have been waiting a long time for something to happen to FSU that will make it wake up and take notice of what is happening on that campus. But no one wants that moment to come at the expense of students.