Lawsuit Seeks Injunction of Campus SaVE Act

A lawsuit filed last week in the federal district court in Washington, D.C., seeks to enjoin the Campus Sexual Violence Elimination Act ("Campus SaVE") from taking effect as scheduled on Friday, March 7.  Campus SaVE (see sec. 304), passed last year as part of the reauthorization of the Violence Against Women Act, amends the Clery Act to require universities to report information about a broader category of sexual violence, as well as their processes for preventing sexual violence and addressing instances when they occur.  Campus SaVE requires those process be "prompt, fair and impartial" but stops short of requiring universities to evaluate cases using a preponderance of evidence standard.  The lawsuit argues that this omission violates students' rights by allowing universities to use a higher burden of proof that is less likely to find a student responsible for assault.  Since a preponderance standard is used in other types of disciplinary proceedings, including those involving animus based on race or disability, the plaintiff argues SaVE violates the Constitution's Equal Protection clause by failing to protect sex discrimination as strongly as other types of discrimination. 

The lawsuit also targets Campus SaVE for requiring universities to define consent according to state law.  Depending on the state, this could incorporate a definition of consent that turns on whether the assault that was forcible, rather than just unwelcome.  Since other types of harassment are defined by unwelcomeness, the plaintiff makes a similar Equal Protection argument here as well. 

The plaintiff is a University of Virginia student who claims that the university mishandled her report of having been drugged and raped by another student.  The Department of Education along with the Department of Health and Human Services are presently investigating the university.  She is seeking an injunction to ensure that the agencies do not apply Campus SaVE's "watered down standards" to her case.

Investigation Reveals UConn's Inadequate Response to Professor's Misconduct

The University of Connecticut was the subject of an independent investigation that concluded this week with the release of a report that detailed findings of sexual misconduct by a professor and the university's mishandling of the situation. 

The report, commissioned by the state attorney general and compiled by a private law firm, set forth "strong, credible evidence" that Robert F. Miller, a faculty member who used to chair the music department, engaged in numerous incidents of misconduct.  In addition to generally having poor boundaries with students (taking them on trips, drinking with them, being naked with one of them in a hot tub, and giving massages to them), there were also incidents involving inappropriate touching of other young boys, such as a colleague's then-13-year-old son, campers at a camp where he had volunteered, and students at a Virginia middle school were Miller worked in the 1960s.  

The report also describes how university officials, in particular, the former Dean of the School of Fine Arts, ignored rumors that have persisted since as early as 2003 about Miller's misconduct with campers and his inappropriate relationship with students.  In 2006, that same Dean also received an email from one of the former middle school students accusing Miller of sexual abuse.  Yet, according to the report, "no one took appropriate action to ensure the safety of minors on campus or University students."  Later, in 2007, University officials discussed some allegations of Miller's misconduct, but did not follow up with any action to protect students and ensure their safety.  It wasn't until last February that Miller's Dean reported concerns about Miller to the university's Title IX Coordinator, triggering a process that resulted in Miller's suspension and ban from campus. 

It does not appear that UConn is facing any legal action arising from this matter, and no students have come forward as victims.  However, in another matter, the university's policies for protecting students from sexual assault are the subject of an OCR investigation and a Title IX lawsuit.

Complaint filed by Cal students

Yesterday, a group of former and current students filed two separate federal complaints related to the ways in which the University of California Berkeley has handled and reported sexual assault cases. Thirty-one students/alumni joined together to formally protest the university's response to sexual assault at the Berkeley campus.
The first is a Title IX complaint focusing on how the university has dealt with sexual assault. The second alleges Clery Act violations and is based on allegations that staff discouraged students from reporting sexual assaults (which would lower the number of incidents of sexual assault the university would have to publicly report). This is the second Clery Act complaint in less than a year. A complaint from May 2013 which triggered an audit (as yet to be complete) states that the university is underreporting sexual assault.
Media coverage of the filings include stories from named complainants who have recounted their own stories of sexual assault--some as long ago as the 1970s--and dealing with inadequate policies and inadequately trained staff in the wake of their assaults. The stories are all disheartening (at best), but unfortunately nothing we have not heard from other victims. 
One major issue seems to be the amount of time investigations take including delays in investigations and the lack of communication to victims about the state of the investigation.
A second issue is the way various staff members are handling these reports, the suggestions they are providing to victims, and the remedies--or lack thereof--being provided. A multiple-time assailant who seemed to be targeting women in the same student organization was allowed to stay in the organization so he could have the support of other members who would tell him it was wrong if he did it again. 
Finally, the university is also not taking measures, based on reported incidents, to protect students who report sexual assault. Several complainants said they were continually harassed by their assailant and/or friends of the assailant. Class schedules were not changed to prevent the victim and assailant from being in close proximity. Reports by victims also seem to suggest that the school's judicial process lacks some consistency. 
The filings at Berkeley are one of 60 that OCR has seen in the last three years, according to HuffPo, which has mapped all of the complaints and provides summaries of the cases and their current state (active, pending, closed).

Indianapolis Public Schools Agree to Remedy Violations of Title IX

Indianapolis Public Schools have entered into an agreement with the Department of Education to improve athletic opportunities for girls across the district.  The Department's Office for Civil Rights had investigated IPS and found the district to be in violation of Title IX for failing to offer adequate number of athletic opportunities to female students.   OCR's investigation revealed that girls are significantly underrepresented in athletics, allocating only 35% of athletic opportunities to female students, despite a gender breakdown that is 50/50.   OCR also faulted the district for not providing equal treatment to girls' teams in terms of scheduling, facilities and equipment.

The district will now have to assess the unmet interests and abilities among female students, and  increase opportunities in response to those interests.  The district will also have to create a more accessible procedure for students or others to request new sports.  It must "promptly" address the disparity in facilities, uniforms, and access to "prime" competition time slots.  And it must regulate its booster clubs to ensure that private donations do not create disparities.

University of Michigan, Michigan State Both Face Title IX Investigation

Investigators from the Department of Education's Office for Civil Rights will visit Michigan State this week as part of an investigation into the university's policies and practices for handling reports of sexual assault on campus.  Details about this matter are sparse and it is unclear at least to me whether this investigation is responsive to complaint received by OCR, or initiated by the agency itself. 

The University of Michigan is also under investigation for its handling of student's 2009 report that she had been raped by a football player, Brendan Gibbons. Gibbons was expelled in December for violating the university's sexual misconduct policy.  My guess is that the timing of this result is what gave rise to the complaint, as Title IX requires schools to conduct disciplinary proceedings in a prompt and equitable manner.

Department of Education Releases Draft Clery Act Regulations

The Department of Education released draft proposed regulations implementing the changes Congress made to the Clery Act as part of the Violence Against Women's Act reauthorization last year.  The draft was compiled with input from a negotiated rulemaking committee, which is in theory supposed to produce a consensus-based regulation that is less likely to be challenged and hung up in judicial review.  True to form, much of the proposed regulation seems unlikely to garner controversy.  The proposal provides details to the new Clery Act provisions that govern colleges' and universities' obligation to compile and report crime statistics, including sexual violence defined broadly to include domestic violence, dating violence, and stalking. The regulations also detail institutions' obligation to disclose "primary prevention" and awareness-raising efforts, as well as the disciplinary procedures the institution uses for addressing instances of sexual violence that are reported to campus officials.  According to the proposed regulations, such procedures must, "at a minimum comply with guidance issued by the U.S. Department of Education’s Office for Civil Rights."

It is this last point that is proving to be controversial, as noted in this article. Some see the reference to "guidance" as signalling a back-door requirement that institutions adopt the preponderance of evidence standard for student disciplinary proceedings.  That is the standard explicitly mentioned in the Department's Dear Colleague Letter issued April 4, 2011, which spells out universities' responsibilities under Title IX to provide a fair disciplinary hearing that takes the rights of victims and potential future victims into account.  Congress did not specify a preponderance standard or any standard when it passed the Clery amendments last year.  This kind of legislative silence is typically resolved by regulation, as the Department of Education is doing now.  Yet rather than name the preponderance standard directly, the Department seems to be incorporating it by reference to the current guidance.  This itself could reflect a negotiated or compromise solution, as it only gives regulatory force to the preponderance standard for as long as the guidance stays in effect. If the Department changes or repeals the 2011 Dear Colleague Letter in the future, the regulatory requirement under Clery would change with it as well.

Temple Restores Crew and Rowing

Reversing course on an announcement made last December, Temple University will not eliminate the sports of men's crew and women's rowing, after it was announced that necessary improvements to the teams' boathouse would not incur cost to the university.  Instead, the $5 million renovation will be fronted by the City of Philadelphia and a generous trustee.

The other five sports that were named for elimination -- baseball, softball, men's gymnastics, and men's indoor and outdoor track and field -- will not be restored, according to Temple's president.  In refraining to revisit the elimination of these sports, the university appears to disregard efforts that proponents of gymnastics, softball and baseball have also made to secure donated facilities and other pledges of financial support to defray the cost to the university of supporting these teams.  This appears to underscore Temple's explanation that the cuts derived from multiple factors, including cost, facilities, Title IX, and student-athlete welfare.  The Title IX explanation only goes so far. Coupled with the fact that Temple had offered proportionately more athletic opportunities to men than to women, Title IX explains only why it was necessary to eliminate more men's opportunities than women's, but Title IX does not explain why cuts were necessary in the first place, or why seven (now five) teams had to go.  It's also been suggested that Temple is slimming down its athletic department in order to fit in with its new, more competitive athletic conference.  In the long run, the university seems to want fewer, more competitive programs than a variety of programs that compete for less prestige.  That's apparently what they mean by "student-athlete welfare."

OCR Investigates Complaint Against Stephenville, Texas School District

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

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

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

Class Action Against Yeshiva University High School Dismissed as Untimely

34 adults who attended Yeshiva University High School for Boys between 1968 and 1992 allege in a recent lawsuit that they were abused by one or more individuals associated with YUHS during that time, including a former administrator and principal named Finkelstein, a faculty member named Gordon, and a former student named Andron who was not employed by the school, but as a friend of Finkelstein was allegedly "permitted to roam the hallways of the boys dormitory and enter student rooms as he pleased."  The plaintiffs allege that despite multiple reports of abuse to school administrators, the threat presented by any of them was never disclosed to the students or their parents.  Furthermore, Finkelstein was allowed to keep his job and no disciplinary action was taken against him.  While Gordon was fired, the school did not disclose that it was because of sexual abuse; a fact further obscured by the school's later conduct in honoring him at a school dinner and set up a scholarship in his name. Plaintiffs also allege that school officials were dismissive of their reports of abuse.

A federal court in New York recently dismissed this claims as barred by the statute of limitations.  In so doing, the court rejected the plaintiff's argument that under New York's "discovery rule," the applicable three-year statute of limitations did not begin to run until the plaintiff "discovers or reasonably should have discovered the injury."  Here, the plaintiffs allege that this did not happen until a Yeshiva University official named Lamm admitted in an interview with the Jewish Daily Forward in December 2012 that he and other administrators had been aware of the risk of sexual abuse at YUHS when it was occurring.  But the court reasoned that this argument "confuses knowledge of the existence of a legal right with knowledge of injury."  The plaintiffs were aware of their abuse at the time it occurred, and should have worked from that point to develop their case, the judge reasoned.

I disagree with the court's reasoning here for the simple reason that the injury the plaintiffs allege in this case is not the injury caused by the abusers, but the injury caused by the school's own misconduct in covering up the abuse.  The abuse and the coverup are two separate wrongs.  The plaintiffs are not seeking to hold the school vicariously liable for the acts of the abusers, but for their own misconduct, misconduct they did not learn about until 2012. This later discovery is what ought to have started the plaintiffs' statute of limitation to run, and render their later-filed lawsuit timely.   

Decision: Twersky v. Yeshiva Univ., 2014 WL 314728 (S.D.N.Y. Jan. 29, 2014).

Student Expelled for Assault Files Lawsuit Against Swarthmore

A Swarthmore student expelled for sexual assault has sued the college over the manner that it handled charges that he committed sexual assault on a fellow student.  The student, called "John Doe" in his complaint, alleges that he was falsely accused and then initially cleared of the accuser's claim that he had coerced her to have sex.  Later, however, his case was re-opened for additional investigation and subsequent hearing, which resulted in Doe's expulsion. Doe alleges that this decision was motivated by negative publicity Swarthmore received as a result of its previous mishandling of sexual assault cases, which served as motivation to use Doe's case as a scapegoat.  The complaint alleges that the subsequent hearing involved a number of procedural violations that produced its biased outcome, and he argues that the sanction imposed was excessively severe in light of alleged anomalies in the complaining student's account of what happened and the lack of corroborating evidence.   He charges the college with violations of its own policies, as well as Title IX and due process.

This case joins a handful of others we've blogged about in recent months, in which an accused student argues that a university's disciplinary proceeding in a case involving sexual assault is discriminatory on the basis of sex. If Title IX enforcement did in fact motivate Swarthmore to violate John Doe's rights, then of course he ought to be able to use the law for vindication.  But even if that outcome occurs, his and the other cases like it do not serve as evidence that Title IX has tipped the balance too far in the favor of female students at the expense of men.  Prior to the April 2011 Dear Colleague Letter, which resulted in increased enforcement and public attention to university sexual assault policies, accused students could use the threat of litigation to motivate universities to dismiss their cases, and victims had no similar opportunity. Maybe that former bias in accused students' favor explains why it seems like such cases were fewer in number than the "trend" we've seen lately. The DCL leveled the playing field by giving a tool to the victims that the accused students already had--the leverage of litigation and complaint.

Lawsuit Against Texas School District Allowed to Proceed

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

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

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

Winston/FSU case not over

As predicted, the sexual assault allegations surrounding Florida State quarterback and Heisman winner Jameis Winston as well as the allegations that the case, brought by an FSU undergrad in December 2012, was mishandled by the university and the Tallahassee police have not gone away. Despite the findings last fall that there was not enough evidence to pursue criminal charges against Winston, the woman's lawyer, Patrica Carroll, has brought in two lawyers with experience in Title IX and sexual assault cases. Both Blaine Kerr and John Clune of Colorado have worked on high-profile sexual assault cases.
The new team will look at all aspects of the case and the liability of different entities.

Temple University Under Investigation for Athletic Department Inequalities

Temple University's athletic program is reportedly under investigation by the Department of Education's Office for Civil Rights for alleged unequal treatment of female athletes with regard to the condition of locker rooms, practice and competitive facilities, housing and dining services, and athletic financial assistance.  It does not appear to have been reported whether disparities against any particular women's teams are alleged, and the identity of the complaint is unknown. 

Last December, Temple's athletic department announced plans to cut seven varsity teams--both men's and women's.  This investigation does not address those cuts.  But it could, I think, reveal information to potentially underscore the charges of Temple's critics that the university is "betting big on football."  If football is benefiting from higher quality facilities, locker rooms and housing and dining serves than any other team, that would come across in an investigation of gender inequality.

Public data about Temple athletics does confirm a disparity in scholarship dollars.  42% of athletic financial aid is distributed to members of women's teams, compared to 58% to men's.  Title IX regulations require scholarship data to flow proportionately to ratio of student-athletes of each sex, and Temple's student-athletes are 48% female.  

Title IX Lawsuit Filed Against Northwestern

A female student at Northwestern University alleges in a lawsuit filed this week that the university violated Title IX by failing to adequately respond to her reports that she was sexually assaulted by a male philosophy professor in 2012. According to her complaint, the student accompanied the professor to an art show, where he bought her alcohol and then refused her requests to take her home.  Instead, she alleges, he brought her to his apartment where she lost consciousness and awoke the next morning in his bed.  She reported the case to a faculty member, who in turn reported to a university official responsible for sexual harassment prevention.  This official conducted an investigation and apparently made a finding that the professor had  “engaged in unwelcome and inappropriate sexual advances,” including “sleeping with his arms on and around (the student) on the night of February 10-11.”  But the university ignored a disciplinary committee's recommendation that the professor be terminated, and he continues to hold his job.  Meanwhile, the student has attempted suicide and suffers from post-traumatic stress that has required hospitalization.

The lawsuit argues that the university's failure to discipline the professor is "deliberate indifference" that subjects the university to liability under Title IX for the student's damages, including medical and educational expenses and compensation for emotional distress.  The professor is not a defendant to this lawsuit, though he may have to contend with criminal charges.  He, meanwhile, denies the student's allegations, and has sued local papers for defamation, alleging that they falsely characterized the allegations against him as rape in their reports about the case. 

Single complaint triggers larger investigation at University of Chicago

The complaint to OCR by one University of Chicago student about the way the university handled the disciplinary procedures resulting from a sexual assault by a (now) former partner has resulted in a broader examination of campus culture and the university's procedures for reporting and adjudicating sexual assault cases. The student filed her complaint in March 2013 for the events which occurred in AY2011-12. But the findings from that investigation prompted OCR to inform the university last month that it would be returning to conduct additional interviews and reviews of policies and procedures. According the student newspaper which ran a series about sexual assault on campus that was partly responsible for triggering the current investigation, investigators are now meeting with students.
The university has responded by forming a faculty committee to address (presumably) current and ongoing issues related to Title IX, sexual assault, and sexual climate on campus. University  representatives have also said that a new discipline policy will be issued this summer.
The original complaint by the one student is ongoing but involves the alleged downgrading of the student's report of a sexual assault to a more benign student dispute for which administrators encouraged informal mediation during which the two students involved would come together to talk it out basically. The complainant contends, among other things, that the downgrading and the suggested conflict resolution would have meant that the university would not have had to report the incident as a sexual assault. This, she said, made her wonder if the university was underreporting sexual assaults. This might be another reason why OCR has broadened its investigation in Chicago, though no one has said this is a Clery Act investigation.

Study Finds No Benefit to Single-Sex Education

Even as single-sex education continues to be touted as the solution for everything that ails public education, new research findings reported this week suggest that it provides no advantages over coed classrooms.  Psychologists conducted a meta-analysis of 184 studies from all over the world and going back several decades that examined the benefits of single-sex- versus co-education. Their conclusion derived from these studies are that differences in educational outcomes are "trivial, or in many cases, nonexistent." The subset of studies conducted in the U.S. produced a similar conclusion.

This analysis could potentially influence courts' and regulators' determinations of whether the ever-increasing number of schools purporting to experiment with single sex education are lawful under Title IX.  Title IX regulations require single-sex programs to be "substantially related to achieving" the school's objectives.  Evidence that single-sex programs do nothing would undermine claims that they "achieve" anything. 

"Failing" Girls' Charter School in Delaware Sues State for Nonrewal

A charter school for girls, along with several of its students, has sued the Delaware Department of Education, alleging that the state's failure to renew the school's charter violates Title IX and the Equal Protection Clause.  The state concluded that the plaintiff, Reach Academy for Girls, is a failing school based on the low standardized test scores posted by its students, and did not renew its charter on those grounds.  But Reach and its students argue that unless it is renewed for another five-year term, the state will violate Title IX and Equal Protection by supporting a charter school for boys but none for girls.   They seek an injunction against the state that would allow the charter to continue for another five years.

The federal district court in Delaware recently dismissed the claims filed by the school itself, which does not have individual rights under either Title IX or the Constitution.  But the court did grant a preliminary injunction based on the claims against the state filed by the students.  As a result, Reach's charter remains in effect for the time being, until the court determines after further analysis (and possibly a trial) whether a permanent injunction is warranted.

The court concluded that the student plaintiffs satisfied their burden of showing a likelihood of success on the merits, one of the key requirements for obtaining a preliminary injunction.  The court's analysis is sparse at this early stage of litigation; it simply noted that the plaintiffs do not have to prove that the state had discriminatory intent, only that its decision resulted in a discriminatory impact on students of one sex. The court reasoned that the plaintiffs will likely prevail, notwithstanding the fact that it reads the Department of Education's Title IX regulations governing charter schools (see 34 C.F.R. 106.34(c)) to not require parity in the number of schools authorized for each sex.

I would expect the court to examine Title IX's application to charter schools more closely in its forthcoming decisions related to the permanent injunction.  It certainly seems like a more complicated issue than the court's preliminary decision made it seem.  After all, if the state of Delaware were enjoined from revoking the charter of a failing school for girls, that too would arguably constitute a violation of Title IX since the state's only charter school opportunities for boys are of higher quality than the charter school opportunities available for girls. In the athletic context, to borrow an analogy, funding recipients have already learned that you can't outsource away your obligation to comply with Title IX. Just as a high school can't say, "it's not our fault that the municipal field that the city lets us use for softball is of lesser quality than the baseball field we have on campus," the state of Delaware should not get away with saying "it's not our fault that the private schools we've chartered are providing inferior education to girls."  Therefore, the court's granting of a permanent injunction would, I think, put the state in a genuine dilemma.  I don't know how the court will resolve it, but I will point out that the dilemma itself underscores my skepticism of single-sex education in the first place: "separate but equal" is hard to ensure. 

Decision: Reach Academy for Boys and Girls d/b/a Reach Academy for Girls v. Delaware Department of Education, 2014 WL 229473 (D. Del. Jan. 3, 2014).

Mapping sexual assault complaints

This is a brief postscript to Erin's post about greater transparency at OCR about complaints against schools accused of mishandling sexual assault complaints. HuffPo writer Tyler Kinkade has created an interactive map that readers can click on to read a brief synopsis of the issue at hand. The blurb also includes a link to a longer article. The map is coded to differentiate between federal complaints that are pending, completed investigations, and schools where controversies over handling have arisen but no formal action has yet been taken.
Though we try to write about all the cases and controversies, we sometimes miss them. So we're appreciative of such a resource. I hope HuffPo keeps it updated.

Sexual Assault Roundup

There's been lots of news about individual colleges' policies and practices regarding sexual assault.   Here is a brief roundup.
 
In (albeit anecdotal) evidence of colleges taking sexual assault grievances seriously, the University of Michigan expelled a football player for sexual assault. 

Amherst College expelled a student as well.

At the University of Connecticut, OCR is confirmed to have opened an investigation in response to complaints of its mishandling of sexual assault.  A private lawsuit is also underway. 

Swarthmore announced changes to its sexual assault and harassment policies, in response internal investigations prompted by a federal complaint filed last year. 

University of North Carolina reports a stronger partnership between its department of public safety and other parts of campus in support of a more effective sexual assault response. 

Iowa State students are now required to take an online training on violence prevention, as part of its universities efforts to comply with requirements of Title IX.  

The University of Colorado announced the positive results of an external review of its Title IX policies, while setting goals to exceed the minimum requirements of compliance. Separately, the university made news by removing the chair of its department of philosophy, amid allegations of sexual harassment.

Title IX and Proposals for a College Football Players' Union

A column in Forbes points out that if the football players at Northwestern are successful in forming a players' union, their likely demands for compensation beyond the full cost of attendance would make it difficult for universities of to comply with Title IX.  A few universities make money on football, and those schools use some of these proceeds to defray general athletic department costs and to partially support women's programs.  If this money is redistributed to the players, it will no longer be available to this end.  A university would have to find other sources of revenue to fill that gap, or else it would risk violating Title IX's requirement for equal treatment of men's and women's programs.  (Cutting those women's teams for lack of funding would also probably violate the law.)  Not to mention (and the column doesn't) the fact that paying some members of a men's sport, but no members of a women's sport, would also violate the equal treatment requirement.

This column ends by calling Title IX the "elephant in the room" that would need to be addressed if players were compensated.  I think that, more than that, the fact this elephant exists highlights the very problem with big-time college sports.  A hybrid of both for-profit business and non-profit, federally-funded education, the former makes the argument for a union seem compelling, and the latter justifies the application of a civil rights law that requires equal treatment on the basis of sex.  The incompatibility of these two ideas illustrates that universities really can't have it both ways.  There are only two solutions: make college sports compatible with education, thus mooting the players' arguments for compensation, or take college sports out of universities, thus mooting the role of Title IX.  Both would drastically change big-time college sports as we know them.  But that just underscores how deeply inconsistent the business of sport and the business of education actually are.

Members of Congress Seek Disclosure from OCR About Title IX Enforcement

Just the other day, a reader emailed me to ask if I knew how many Title IX complaints OCR handled last year -- a question I get from time to time.  You'd think this would be an easy one to answer, but it's not.  OCR provides an annual report to Congress, but it's always retrospective and it doesn't provide a detailed breakdown of the nature of various complaints.  There's no database of complaints, investigations, findings and resolutions.  As a result, it's difficult to get a handle on the big picture of public enforcement of Title IX.

Turns out I'm not alone in thinking this.  Members of Congress have reportedly asked the Department of Education to provide more transparency about which colleges and universities are under investigation, have been the subject of complaints, or have entered into resolution agreements as a result of failures (or alleged failures) to adequately respond to sexual harassment and sexual assault.  

While I would extend this request for disclosure to other applications of Title IX -- like athletics -- I understand why Congress would be particularly interested in disclosure of OCR's enforcement of Title IX violations that threaten students' personal safety.  As one legislator explained, "American families have a right to know when [a] history [of sexual violence] is present" at an institution, and what the government is doing to try to address the problem. 

While it remains to be seen how OCR will respond to this request, there are theoretical reasons to believe that such a request will be effective.  Congress could, if it wishes, pass legislation requiring the agency to disclose this information, so the agency may be motivated to proactively respond to the legislators' informal request in order to avoid such a mandate. Moreover, like all agencies, the Department of Education receives its funding from Congress and is subject to the oversight of congressional committees.  Keeping members of Congress happy helps ensure that the agency's appropriations aren't targeted and that agency officials don't have to testify at uncomfortable committee hearings. The timing of this request also adds to its potential to be effective.  The President has just announced a task force seeking to improve enforcement and compliance in this area.  Having made this public commitment, there is certainly a risk of political fallout if the administration turns down a request to provide more information about how it is handling the problem on its end.

University of Missouri Will Investigate Sexual Assault Related to a Student Athlete's 2011 Suicide

Over the weekend, ESPN's program Outside the Lines reported on the story of Sasha Menu Courey, a swimmer at the University of Missouri who committed suicide in 2011. OTL reported that Menu Courey had been raped (or believed she had been raped) the year before by one or more members of the football team, and that this incident is believed to have triggered an existing mental illness that lead to her suicide.  The report raised questions about the University of Missouri's failure to investigate the underlying sexual assault, despite the possibility of having known about it prior to the swimmer's death, and the certainty that it found out about soon afterwards.  Until recently, the university claimed that it was not investigating or involving the police based on a decision to honor what they perceive to be Menu Courey's wishes.  The university also says that it solicited inputs from the student's parents, but got no indication from them that they desired an investigation to occur. 

Now, the university is going forward with an independent investigation of how the university handled the matter, and the local police is also now involved. Yet questions remain about whether did enough prior to this point to satisfy its obligations under Title IX.  According to the 2011 Dear Colleague Letter, a university is required to respond immediately when it has reason to believe that a sexual assault has occurred.  So attention at this point will focus on what university officials knew and when.

Initially, Menu Courey did not report the rape to anyone other than to health care providers who are bound to confidentiality.  But she may have also told an athletic department official named Meghan Anderson, who went to see Menu Courey while she was being hospitalized for an earlier suicide attempt to obtain Menu Courey's signature on a form withdrawing her from the university.  Menu Courey wrote in her journal that some time after the visit, she called Anderson and told her about the assault, though Anderson denies that this was said. Subsequently, Menu Courey committed suicide.  If Anderson had in fact been told about the sexual assault, she might have had a legal obligation to report it.  Under the Clery Act, university officials who have significant responsibility for students are under a duty to report crime.  The duty to report would thus depend on Anderson's job at the time, and whether she was considered someone with significant responsibility for students.  The fact that she was the one deployed to the hospital to obtain Menu Courey's signature on the withdrawal form suggests that she likely had this responsibility.  However, it sounds like we will never know for sure whether she knew about the assaults, since Anderson's account of their conversation differs from what Menu Courey wrote in her journal.  

Anderson aside, the university still had arguable reason to know about the assault from a news story about Menu Courey published in the wake of her death.  Apparently, Menu Courey's grieving parents learned about the sexual assault from their daughter's journal, and shared this information with a reporter from the Columbia Daily Tribune, who include it in a story about Menu Courey's life that ran on Feb. 21, 2011.  Details about the assault were not included in the article; for example, the university defends that it didn't even specify whether it occurred on campus or while Menu Courey was home in Canada.  Still, OCR does not require a university to have actual notice in order to trigger a response (though that is the standard courts use to determine liability for money damages).  According to the Dear Colleague Letter, if school officials know or "reasonably should know" about an act of sexual assault, they are required to "take immediate action to eliminate the harassment, prevent its recurrence, and address its effects." The duty to "prevent its recurrence" would seem to at least warrant making a reasonable effort to find out more.

The university's defense of its delay seems to be that they are honoring what they perceive to be Menu Courey's wishes and those of her parents, since Menu Courey did not report the sexual assault while she was alive, and her parents have not requested that the university do so after.  Yet the Dear Colleague Letter makes clear that a university's obligation to respond is not contingent on the victim's wishes.  This is because a university's obligation is as much to the campus as a whole as it is to the victim in a particular case.  We know that most campus assault is committed by serial offenders.  It is possible that the university's failure to investigate earlier put other students at unnecessary risk.  For all we know, Menu Courey's apparent assailants may have later raped other students as well.  Regardless of whether legal action is taken against the University of Missouri, the story is still a sad, cautionary tale to university officials elsewhere about the importance of being proactive and involved in matters of sexual assault.

OCR Investigates Increase in Sexual Assault Reported at Penn State

The Department of Education's Office for Civil Rights announced that it has initiated a compliance review of Penn State's handling of sexual assault complaints, "to determine if the University has responded immediately and appropriately."  An OCR official reportedly confirmed that the agency was motivated to investigate based on an initial review of the university's sexual harassment policy, along with a "dramatic increase in the number of reported forcible sex offenses."  According to the university's Clery Act reports, forcible sex offenses rose from 4 in 2010, to 24 in 2011, to 56 in 2012. At other schools of Penn State's size, that number "peaks in the teens and twenties," according to a campus safety advocate interviewed by the Pittsburgh Post-Gazette. So with 56, Penn State really stands out as a target for inquiry.  


A compliance review is different from other investigations conducted by OCR in that it is driven by the agency's own decision to investigate, and not a response to a particular compliant it has received. Yet, OCR was careful to spell out in its letter that it has "reached no conclusions" as to whether the university has violated any federal law.  Moreover, Penn State was the subject of a uniquely-high profile sexual abuse case involving its athletic department during the time period. This could have influenced reporting raising awareness about victim's rights and reducing the sense of isolation that often deters reporting of sexual assault.  For context in this regard, coach Sandusky was indicted in November of 2011.  So the case could plausibly explain, at least in part, the surge in both 2011 and 2012. 

Another way to look at Penn State's 56 sexual assaults in 2012 is to consider the likelihood that it comes closer to reality than the lower numbers reported by other schools; it doesn't necessarily mean that Penn State has a worse sexual assault problem.  And while it's not good that there were (at least) 56 victims of sexual assault at Penn State that year, it is better that those 56 victims reported than not. It may reflect that students are increasing perceiving the university as a place where reporting sexual assault that it is both safe and worthwhile. It's important that OCR's review not only identify any aspects of Penn State's response to sexual assault that is lacking, but also give an honest account of what those numbers actually reflect.  I'm sure the last thing OCR wants is to send the message to other schools that honest reporting only brings trouble. 

Add Columbia to the list...

...of schools where students are speaking up about their experiences when reporting incidents of sexual assault and bringing light to inadequate and illegal systems of reporting at their institutions.
At the end of last year, several women came forward to say that they all had been assaulted by a Columbia University athlete, but that the university had not adequately investigated their respective complaints and that the student was still on campus having faced minimal disciplinary actions (for groping, a verdict that came down after the accuser graduated).
It does not appear that the university is in violation of the Clery Act. But simply reporting incidents does not feel like enough to many Columbia students who have called for greater accountability and transparency. A group calling themselves the Title IX Team are asking for the release of additional information such as the nature of complaints, how they are resolved, and what kind of punishments are given to alleged perpetrators.
Last week, the school newspaper released the first article in a two-part series about the experiences of some students who have tried to use the university's disciplinary system to address sexual assault. It has already garnered some internet attention and I predict that the details of individuals' assaults and experiences will strengthen students' claims against the university and compel a response.The students want one. There have been at least two open letters to the university president asking for him to address their concerns. The latest, from members of the Title IX Team, can be found here.

Wisconsin Middle School's Single-Sex Classes Targeted for Complaint

The ACLU has filed a complaint with the Department of Education's Office for Civil Right, alleging that Somerset (Wisconsin) Middle School's single-sex education program for fifth-graders violates Title IX.  Students in Somerset's single-sex program are separated by sex for all core subjects, as well as extracurricular activities and non-academic periods like lunch and recess.

The ACLU's complaint alleges that this program violates Title IX because administrators have provided inadequate justification for the program.  They claim to be using single-sex education to introduce "academic rigor" that will help close the gender gap on certain standardized tests, as well as to quell behavioral problems, but cite no data to substantiate either problem.  The ACLU also chides officials for citing no "valid" evidence suggesting that separating students by sex is an effective means for solving either problem.  Though they have been separating some fifth graders by sex since 2008, the school puts forward no evidence that it has made any difference on test scores or disciplinary rates so far.  Instead, the complaint alleges, school officials justify sex-separation by relying on "debunked" pseudoscience on the different hardwiring of boys and girls brains, and the related "controversial" work of single-sex education proponents Leonard Sax and Michael Gurian, who advocate for teaching boys and girls in drastically different manners based on sweeping and questionable generalizations. The complaint cites some of Sax and Gurian's recommendations on which Somerset officials purport to rely:

• Teachers should smile at girls and look them in the eye. However, teachers must not look boys directly in the eye or smile at them. 
• Boys do well under stress, and girls do badly, so girls should not be given time limits on tests. 
• Girls should be allowed to take their shoes off in class because this helps them relax and think better. 
• Literature teachers should not ask boys about characters’ emotions, and should only focus on what the characters actually did. But teachers should focus on characters’ emotions in teaching literature to girls. 
• Boys should receive strict discipline based on asserting power over them. Young boys can be spanked. Girls should never be spanked, but instead should be disciplined by appealing to their empathy. 
• A boy who likes to read, who does not enjoy contact sports, and who does not have a lot of close male friends has a problem, even if he thinks he is happy. He should be firmly disciplined, required to spend time with “normal males,”and made to play sports.

The ACLU argues that, although Title IX regulations do allow schools to engage in single-sex education in certain conditions, Somerset's program falls outside of what is permitted and thus constitutes sex discrimination under the law.  Single-sex programs may only be used to address a particular, identified need, and moreover must be substantially related to that need. If the ACLU's factual allegations prove true, the school does not appear to have met this standard, as it provides only a vague justification for separating students and no evidence that separation is benefiting the students in any way.  Additionally, the Title IX regulations prohibit schools from relying on "overly broad generalizations about the different talents, capacities, or preferences of either sex."  Somerset's fifth-grade curriculum seems to do exactly that.

The complaint requests that OCR conduct an investigation and ensure that school district correct any violations found by "reverting to a coeducational structure."  The ACLU has attained that result in filing similar complaints against other school districts (e.g. here and here)  We'll see if the Somerset case follows the same course.

Obama Task Force to Focus on Campus Sexual Assault

Yesterday, President Obama announced the creation of a Task Force to Protect Students from Sexual Assault, a group of senior administration officials charged with coordinating the government's efforts to combat sexual assault on college and university campuses.  This announcement came on the heels of the release of a report by the White House Council on Women and Girls Leadership, that describes the prevalence of rape and sexual assault and the impacts of this problem on society.  The report, titled Rape and Sexual Assault: A Renewed Call to Action, identifies college campuses as environments that pose particular risks and challenges, resulting in the alarming statistic that 1 in 5 women has been sexually assaulted while in college.  One aspect of of the problem of campus assault is the high rate of serial offenses (63% of college offenders admit to committing an average of 6 rapes each), underscoring the importance of institutional intervention. 

The report also outlines the Task Force's objectives, which largely relate to enforcement of Title IX, the Clery Act, and Campus SaVE, including:

• Provide educational institutions with best practices for preventing and responding to rape and sexual assault. 
• Build on the federal government’s enforcement efforts to ensure that educational institutions comply fully with their legal obligations. 
• Improve transparency of the government’s enforcement activities. 
• Increase the public’s awareness of an institution’s track record in addressing rape and sexual assault. Enhance coordination among federal agencies to hold schools accountable if they do not confront sexual violence on their campuses.

Members of the Task Force include Education Secretary Arne Duncan, Health and Human Services Secretary Kathleen Sebelius and Attorney General Eric Holder.

Triathlon Is NCAA's Newest Emerging Sport for Women

At the annual NCAA convention taking place this week in San Diego, the Division I Legislative Council voted to add triathlon to the NCAA's list of emerging sports for women.  95% of the votes cast were in favor of the proposal.  The Division II and Division II councils will also vote on triathlon's status later at the convention.

The NCAA created the "emerging sports" designation in 1994 as a way to promote new opportunities in women's sports and help universities close the gender gap in athletic opportunities available to students.  A university that adds an emerging sport may count it towards the NCAA's minimum sport sponsorship requirements, and in Division I, towards the minimum financial aid requirements.  The NCAA's Committee on Women's Athletics proposes emerging sports based on evidence of interest and potential interest at the varsity level.  Once a sport is added to the list, it has 10 years to meet the requirements for championship status.  In Division I, that means 40 institutions will have to add the sport.  Rowing, ice hockey, bowling, and water polo are all current NCAA championship sports that came out of the emerging sports program.   

USA Triathlon, the sport's governing body, predicts that triathlon will be an attractive sport for athletic departments to add, because of its potential to generate revenue and community relations by allowing members of the public to register and compete in the same race alongside college participants.  This is a valid selling point, but it is important for Title IX compliance that universities do not allow such public participation to overshadow or dilute the collegiate varsity competition.

Division I schools that have reportedly committed to adding a women's triathlon team include Stanford University, the U.S. Air Force Academy, Denver, Drake, Monmouth, North Carolina-Asheville and University of Northern Iowa. Division I schools that add triathlon can offer up to 10 scholarships for athletes on the team. 

OCR to Investigate Sexual Assault Complaints Against Emerson College

The Department of Education has confirmed that it will investigate three Title IX complaints filed against Emerson College in Boston, in which female students allege that the school failed to promptly respond to reported sexual violence.  The complaints, filed last October -- and one of which we blogged about then -- have been consolidated into a single investigation, the scope of which will reportedly include interviews with the complainants and with college staff and potentially a visit to the college. 

One of the students' complaints alleges that she was raped at an off-campus party by an Emerson College student and an MIT student, and was later dissuaded from reporting it to the police by Emerson college staff.  The college moreover failed to take any action against the accused Emerson student, allowing him to attack her a second time. The second student alleged that she was raped by a fellow student, and when she reported it a year later, the investigation was mishandled and insensitive.  The third student also alleged that the college failed to adequately investigate a reported sexual assault, as well as denied her academic accommodations that would have helped her get through a stressful time. 

OCR will investigate these claims to determine whether the college complied with its obligation under Title IX to end sexual violence, prevent its recurrence, and address its effects.

Bullied Student Sues Mississippi School District

The Southern Poverty Law Center has sued the Moss Point School District in Mississippi on behalf of a junior high school student, Destin Holmes, who was bullied by students and staff because of her failure to conform to gender stereotypes. The complaint alleges that Holmes was insulted as many as 20 times a day, as students and even staff called her things like “it,” “freak” and “he-she.” One teacher denied her access to the girls' restroom, while another did not allow her to participate in a classroom activity that divided the students by gender.  Though teachers and other school officials witnessed or received reports about this abuse, they took no action to stop it.  Not even when SPCL issued a demand letter earlier this year, calling on the school district to ensure Holmes's safety and protect her civil rights.

Title IX lawsuits have forced other schools to address the climate of anti-LGBT bullying, implement stronger measures against such harassment, and even to pay damages to students who were victims of abuse (see, e.g.).  If Holmes's testimony in her case is even half as compelling as in this video from SPLC's website, a similar outcome in her case seems inevitable.  

Title IX Complaint Contests Carnegie Mellon's Response to Sexual Assault

The ACLU has filed a Title IX complaint with the Department of Education on behalf of a student at Carnegie Mellon University in Pittsburgh, who alleges that the university did not adequately respond after she reported that she had been sexually assaulted by her abusive ex-girlfriend.  Allegations in the complaint, available here, suggest that the campus police did not take seriously the threat to the victim's safety when they disclosed to the the accused student the details of the victim's accusation without notifying the victim or protecting her from retaliation.  The complaint also charges that the university failed to adequately discipline the accused student, whom they found responsible for violating the university's policy on sexual assault.  Rather, the university's only response was to implement a "no-contact order" that created a mutual obligation on both parties to avoid the other.  Despite the order, however, the offending student was allowed to take classes with the victim and continue to live across the hall, which enabled her to harass and intimidate the victim.  Ultimately, the victim had to move out of her apartment and switch her classes.  The ACLU argues that such a response violates Title IX because it failed to protect the victim from ongoing harassment, and placed the burden on her to avoid future harm.

While this case may be unique among recent campus sexual assault cases in that the victim and the offending student are both female, this fact does not put this case on any different legal footing.  Sexual violence targets the victim because of sex, regardless of whether the offender is of the same or different sex.  The university therefore has the same obligation as those in other cases to "eliminate the harassment, prevent its recurrence, and address its effects," and that is the standard OCR will use to evaluate Carnegie Mellon's compliance with Title IX.

Where CSU's athletic dollars are going

In the wake of news that Colorado State was inequitable distributing its athletic scholarship dollars, the following is an interesting editorial about where CSU athletics is putting its money. The university cut women's water polo this year. They did add soccer but there are still fewer female athletes than male athletes while the percentage of female undergraduates exceeds that of male undergraduates (52 to 48). There might not have been a net loss in athletic opportunities given that the size of the soccer squad is roughly equivalent to the water polo team. But Deborah Schulman's piece points out other disparities beyond participation numbers and scholarship dollars.
Though Title IX does not mandate a 50/50 split in funding between men's and women's sports, the fact that women's sports receive 30% of athletic department dollars deserves some investigation. For example, the fact that out of  the entire coaching budget, only 21% goes to coaches of women's teams. And only two of those (head) coaches are women. (The Tucker Center at University of Minnesota released a "report card" about the state of women in intercollegiate coaching. CSU is not, unfortunately, unique in its lack of female head coaches.)
It is not as if the university is running a large men's athletic program--well at least in terms of number of sports. There are only 4 men's scholarship sports. The issue is that so much of the money and other types of resources go into football; 45% of the budget is devoted to football. And the university is about to embark on a huge football stadium project.
Numbers like these illustrate the reality behind the claims of devotion to gender equity and suggest just how skewed things would be without a federal law compelling schools to examine and execute it.

Duke adding women's sports

The women's athletic program is having a good run. Women's basketball is currently ranked second in the nation (though that was a disappointing result against UConn the other day).
But the university has decided to put more money and support into women's athletics. The result: the addition of a softball team and scholarships in swimming and diving, fencing, rowing, and track and field. All of these sports will now be offering the maximum number of scholarships.
This move was championed by the Women's Sports Foundation which was strongly encouraging  Duke to come into Title IX compliance.
Inequities in scholarship dollars have been in the Title IX news of late. Colorado State was recently cited for its scholarship disparities. Part of the settlement at Quinnipiac College, approved this past summer, also included stipulations for an increase in scholarships.
Interestingly, the addition of softball in 2018 will bring Duke to 27 varsity sports. That puts them close to the top of the ACC in terms of sports offered. (Numbers vary when considering non-conference sports such as fencing and gymnastics.)
We have seen a lot of schools with such high numbers falter, unable to effectively sustain the quality of the experience across so many teams, especially when the emphasis is on a few revenue-generating sports. But Duke maintains that these revenue dollars are what has enabled them to increase spending on women's sports. Whether that is a sustainable model remains to be seen.

Wisconsin Parents Claim Swim Team Facility Arrangements Were Retaliation for Earlier Complaint

In New Berlin, Wisconsin, student-athletes and parents are complaining that the school district's decision to relocate the Eisenhower High School girls' swim team practices and home meets to another high school's pool was retaliation for earlier complaints about gender equity in athletic facilities.

As we noted on this blog, the complaints by the swimmers and their parents alleged that the deteriorating condition of Eisenhower's pool amounted to sex discrimination when compared to the high school's recently-upgraded football facility. To the swimmers' disappointment, the school district responded to that complaint by upgrading its softball facility instead. To their further dismay, the school district then decided that the conditions of Eisenhower's pool were so bad that the team should no longer use it. For the season that just ended, the girls' swim team had to practice and compete at New Berlin West High School's pool.  (The two high schools field a combined boys' team, which also uses the West facility). However, the Eisenhower girls' diving team continues to use the Eisenhower pool for its competitions.

Parents say that this inconvenient arrangement is pay-back for the earlier complaints. According to the them, the team would have preferred using the Eisenhower pool for practices and holding its competitions at West.  And as evidenced by the fact that the pool still serves the diving team, it's not as if its condition foreclosed all use.  Yet, district officials deny the charge of retaliation, arguing that scheduling both meets and practices at the same higher-quality facility was advantageous for the girls. 

It does not appear that the parents have undertaken or are threatening any legal action against the school.  If they did, their biggest challenge would be proving that the district had a retaliatory motive when it decided to relocate a team's regular practice to the West facility, which would have to undermine the school district's non-discriminatory explanation for the decision. 

Childbirth Discrimination Case Settled

In August we blogged about the Title IX complaint Brandi Kostl filed with the Department of Education after she failed two classes because her college, Logan College of Chiropractic, refused to allow her to make up the 11 days of schoolwork she missed because of an emergency Cesarean delivery.  This week, Inside Higher Ed reports a settlement in the case, under which the college will remove Kostl's failing grades from her record and allow her to re-take the classes at no cost.  She will also receive a tuition refund for the semester affected by Logan's discrimination.  

Logan has also agreed to update its policy to ensure that faculty do not penalize students who must miss classes due to pregnancy or childbirth. Faculty must either allow students to make up missed work, or to provide the opportunity to withdraw from the course with no financial penalty.

Pregnancy discrimination in colleges and universities is a common problem, according to lawyers and scholars interviewed by Insider Higher Ed.  Earlier this year, a complaint similar to Kostl's against the Borough of Manhattan Community College also resulted in a student-friendly settlement.  The National Women's Law Center represented the plaintiffs in both cases.

Female Baseball Player Challenges Exclusion from Junior High Team

In Mesa, Arizona, after an eighth-grade girl named Jasmine Miles was excluded from her public school's baseball team, her grandfather filed a complaint with the school district. But the school district is still refusing to let her play, arguing that reserving baseball for boys is "in compliance with Title IX, as an equivalent team [i.e., softball] is offered for girls." 

I contend that the "softball defense" is a misinterpretation of the Title IX regulations about cross-over participation:

"...[W]here a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try-out for the team offered unless the sport involved is a contact sport."  34 C.F.R. 106.41(b).

According to this provision, a school can offer separate teams for girls and boys "in a particular sport" as long as there is a team for members of each sex.  (The exception to this rule for contact sports does not apply, since baseball is correctly omitted from enumerated list of contact sports that appear later in this regulation.)  The regulation says nothing about "equivalent" sports or "similar" sports.  The idea that baseball and softball are interchangeable for Title IX purposes, while convenient for athletic directors, does not derive from this regulation, but from tradition rooted in stereotypes that sought to preserve the sport of baseball as an exclusive male preserve.  I agree with Miles's grandfather, quoted in the article, that baseball and softball are different sports.  They use different facilities, they have different rules, and different equipment.  Just as a school can't hold up its girls' volleyball team as a reason to exclude girls from the boys' golf team, it should not be able to rely on softball as a justification to exclude girls from baseball.    


I hope that Miles and her grandfather continue to fight the school district on this.  Perhaps they can do for Arizona what another baseball-playing girl, Logan Young, did for Indiana.  She too challenged her school's policy of excluding girls from baseball on the grounds that softball was an equivalent sport.  The lawsuit she filed eventually pressured the high school athletic association in that state to change the rules.

Occidental College Conceals Sexual Assaults

Occidental College in Los Angeles has been publically associated with campus sexual assault since April, when it was the subject of a high-profile Title IX complaint with the Department of Education that challenged the way it handles reports of sexual violence.  This fall, the college admitted to underreporting instances of reported sexual assault as required by the Clery Act, but the extent of that underreporting was recently exposed by investigative reporters at the L.A. Times, who found 27 additional assaults that the college did not disclose in 2012, beyond the two dozen that the college originally acknowledged had been omitted from their reports. The Times article further reports that "dozens more" may have also been ignored by the Dean of Students because they were filed anonymously.

The Times reporters also reviewed the initial complaint, and report that it accuses Occidental's President, Dean of Students, and General Counsel of deterring students from reporting sexual violence and retaliating against those that do. For example, an official in the Dean of Students office allegedly tried to talk a victim out of reporting, saying "Are you sure you really want to go through with this? It is a really long and hard process, and it may cause you more pain and suffering."

Occidental's continued response to the issues of sexual assault since last spring's complaint has also drawn criticism. A professor told the Times that the campus safety logs, while now include anonymous complaints, regularly "downgrade" sexual assault to sexual battery.  In an even more bizarre example of obstructionism, the General Counsel, who has since resigned, reportedly organized a group of male student-athletes to stand up for themselves against anti-rape "activists."

While Occidental paid a financial settlement to the initial complainants in order to prevent them from filing a lawsuit, the Department of Education's investigation is still underway.  An enforcement action by the agency could subject the College to fines and other requirements to remedy violations of Title IX and the Clery Act. 

No discrimination found in Jackson State case

Former Jackson State basketball coach Denise Taylor won part of her lawsuit against the university last week. The jury found that there was breach of contract in Taylor's case but did not find evidence of discrimination or retaliation. Taylor, in her claim against her former employer, stated that she was fired after threatening to file a Title IX complaint.
Taylor will received $182,000; the amount left on her contact at the time she was fired. 
None of the published reports discussed the evidence provided at the trial by either side, only that both called former JSU players to testify. the university contended that Taylor had misappropriated funds and engaged in "sexual gender stereotyping."

Temple University Cuts Seven Teams

On Friday, officials at Temple University announced that they were cutting seven athletic teams, reducing their varsity sport programs from 24 to 17.  The board of trustees made the decision recently at an emergency meeting, though it is also reported that it followed a "seven month detailed analysis."  According to a spokesperson, the motivation for cutting teams was the institution's inability to provide "the quality of student athlete care that we would like to have for a Division 1 athletic program with this amount of sports being sponsored" and that they also considered finances, facilities, and Title IX compliance.

I looked at Temple's reported athletics data in order to evaluate the likely role Title IX played in the decision.  Presently, the school's student body is 51.3% female, and it offers 49.2% of athletic opportunities to women.  These numbers are close enough that Temple could make a strong case for compliance with the proportionality prong.  So there's no basis to believe that Title IX played a strong role in the decision to make cuts in the first place.  In fact, the university's stated rationale of having too many teams, more than it can afford to maintain at a high level of quality, rings true given that 24 varsity programs is above average (20) for a Division I school in the Football Bowl Subdivision. 

Moreover, Temple's cuts affect both men's and women's teams: baseball, softball, men's and women's rowing, men's gymnastics, men's indoor track and field and men's outdoor track and field, a total of 172 for men and 84 opportunities for women, producing a distribution of athletic opportunities that are 59% female, 41% male.  If Title IX was a dominant consideration, the cuts would have stopped at a ratio much closer to 51.3% female, 49.2% male. 

Given the minor role that Title IX seems to have played, the cuts seem more likely to belie the speculation that Temple's new athletic administration is "betting big on football," which would explain the elimination of teams as way to redistribute financial support to it biggest team, which is losing both games (2-10) and money right now. 

Breaking news: Former OU grad student loses case

The 5-year case of a former doctoral student who sued the University of Oregon under Title IX is now over. In her lawsuit, the student claimed the College of Education retaliated against her after she complained about the lack of female faculty in the department. At that point, she claimed, faculty members refused to work with her thus preventing her from completing her degree.
There is very little news about the case right now. The brief report I read said the judge concluded that sex discrimination and retaliation were not successfully proven.
(It also continues to perpetuate the myth that this is the first case where Title IX has been used to address an issue outside of athletics. Hopefully the local news outlets in Eugene will remedy this in future stories.)

No charges for Winston; for FSU?

Just when my conspiracy theories were starting to foment, the Florida State Attorney's office announced that it will not bring charges against Florida State quarterback Jameis Winston. So although the investigation by this office took a long time given that the incident was reported just under a year ago, investigators did not wait until FSU was safely through football season to release the report. Of course the findings, as presented, were good for Winston and, by extension, the FSU football community. (One student fan, a sport management major, said the last few weeks have been quite stressful.)

The investigative process itself was problematic (length of time to complete/act), the way the accuser is being treated is more discouraging. Unconfirmed reports that she and her family were encouraged not to make an issue of this in a football town in combination with the reports that she has memory lapses in regards to the events of that night and was drinking at a bar all create a disconcerting feeling about this case. Given the stories we are hearing from college women across the country regarding how they are treated by officials when they report sexual assault, it is not hard to imagine that the accuser was either not taken seriously or ignored. (She has since left the university.)
And though Winston has been cleared, the university is not free and clear. A lawsuit or complaint could put the spotlight on the university's policies around and procedures for handling reports of sexual assault.

Was FSU delinquent in investigation?

When we hear about charges of sexual assault against a male athlete, we usually get details about how police investigations are proceeding or when charges may or may not be brought, potential penalties, etc.
Some of this is happening in regards to the accusations of sexual assault against Florida State quarterback Jameis Winston. For example, prosecutors investigating the claims (almost a year after they were brought to the Tallahassee police which encouraged the alleged victim to not pursue the issue) say that they will  not let the football schedule (or the fact that Winston is a Heisman contender) influence the pace of the investigation which seems to be moving slowly. Though, I would think this would be beneficial to Winston and FSU generally. Nothing formal happening while FSU could contend for the national championship would seem like a good thing him and the team and the school.
Alas, the school itself is under scrutiny because the victim reported the incident, which Winston states was consensual after it was leaked that his DNA was found on the accuser's underwear, when it happened--a year ago. The school was supposed to, under Title IX, investigate within a 60-day window. It is unclear whether that happened, but concern is certainly raised by a school investigation that would be still be ongoing a year later. School officials seemed to suggest that investigations and their pace are a case-by-case consideration, which is actually not the case. And given, well the law, and the visibility of so many instances of institutional indifference and mishandling of sexual assault cases, no school can claim that they just didn't know.
So whatever happens with the criminal investigation, the accuser might have a case against FSU.

Harassment cases roundup

Here are summaries of November decisions in Title IX sexual harassment cases: 

A federal judge in Massachusetts refused to dismiss a Title IX case against Stoughton Public Schools, stemming from an incident in which students circulated nude photographs of the female student plaintiff, precipitating name-calling like "slut" and "whore."  The judge agreed that the plaintiff's allegations, if proven to a jury, could satisfy both the requirement of hostile environment, given that many students were involved and that the hostility was prolonged over many months, as well as deliberate indifference, since the plaintiff claims that the school did not impose any discipline on the students involved, or even call their parents.  Doe v. Town of Stoughton, 2013 WL 6195794 (D. Mass. Nov. 25, 2013).

A federal judge in Arizona determined that a graduate student plaintiff's entire Title IX claim against the Arizona Board of Regents was timely, even though some of the instances of harassment and retaliation she experienced after breaking off a relationship with a faculty member were outside the two-year statute of limitations.  Hostile environment harassment claims constitute a "continuing violation."  Under this designation, since some components of her hostile environment claim took place within two years before she filed suit, the court will consider the entire timeline of harassing events.   Kunzi v. Arizona Board of Regents, 2013 WL 6178210 (D. Ariz. Nov. 25, 2013).  

Similarly, a case against the University of Michigan was allowed to proceed despite a motion for the university that argued that the case was untimely.  There, the plaintiff, a female engineering graduate student, alleged that she was subjected to severe and pervasive sexual harassment and discrimination by her male peers, as well as retaliation by university faculty and employees. The court denied the university's motion to dismiss because even though the harassment began earlier than the statute of limitations period, the plaintiff alleged some instances of harassment, deliberate indifference, and retaliation that occurred within the limitations period.  Dibbern v. University of Michigan, 2013 WL 6068808 (E.D. Mich. Nov. 18, 2013).
 
A student's Title IX case against the Board of Education in Prince George's County, Maryland, was dismissed after a court ruled that a reasonably juror could not find evidence of deliberate indifference on the part of school officials.  In this case, the plaintiff was sexually assaulted by another boy after experiencing (and reporting) several earlier instances of sexualized misconduct by that same boy.  Yet school officials responded to each earlier instance in a reasonable manner, addressing them by such means as talking to the offending student, assigning the offending student to separate classes, requiring that he serve a five-day in-school suspension.  According to the court, imposing liability on the school on these facts would discourage schools from imposing any punishment other than expulsion for any instance of sexual harassment regardless of its nature. Doe v. Bd. of Educ. of Prince George's County, 2013 WL 6065269 (D. Md. Nov. 18, 2013).  

A female wrestler's Title IX claim against her school district can go forward, after a court determined that her complaint adequately alleged that she had put proper school officials on notice of sexualized and gender-biased harassing comments by the wrestling team's two assistant coaches.  Moeck v. Pleasant Valley Sch. Dist., 2013 WL 6048131 (M.D. Pa. Nov. 14, 2013).  

Colorado State University's Athletic Scholarships Found to Violate Title IX

The Department of Education's Office for Civil Rights recently confirmed that it had found Colorado State University in violation of Title IX by offering too few athletic scholarships to its female student-athletes.  The law requires scholarship dollars to be proportionate to the gender ratio of athletes.  48.5% of CSU's student athletes are female, but women receive 42.73% of the university's athletic scholarship dollars. 

The school has reportedly decided to correct this inequity by replacing its women's water polo team with a women's soccer team, because the NCAA allows up to 14 scholarships in women's soccer, while only 8 in women's water polo.  University officials explained that they lacked the financial resources to keep water polo and add another women's sport to which it could allocate more scholarship money.

There's no mention of CSU having considered scaling back scholarship dollars available for men's sports. This would be permissible under NCAA rules, which only cap scholarships and do not require them.   

Title IX Violations Alleged at Amherst and Vanderbilt

Last week, Amherst College in Massachusetts and Vanderbilt University in Tennessee were each alleged to have violated Title IX in they way they handled students' reports of campus sexual assault.

On Thursday, six Vanderbilt students filed a complaint with the Department of Education's Office for Civil Rights.  As an example of Vanderbilt's alleged violation, one of the complainants states that the university did not take any action against the student's alleged stalker once they had pressured her into letting the school handle it rather than going to the police. That same day, two Amherst students filed a similar complaint. One of the allegations it contained is that the school responded to a report of rape by admitting the victim to a hospital psych ward while letting the accused student go unpunished. 

While Vanderbilt is a new name on the list of institutions with apparently problematic sexual assault policies and practices, Amherst has been the poster-college for this issue since last fall, when a student editorial accused the college of suppressing reporting by victims and treating accused students with leniency.  Since then, the college has been responding by revising its policies and by hiring a fill time Title IX Coordinator.  I think that OCR will look favorably on these efforts in any investigation and compliance action that might be forthcoming in response to the complaint. At the same time, the agency's involvement will likely help ensure that the changes promised by the college are both substantive and lasting. 

Montana HS Football Program Mishandled Funds to Avoid Title IX

The Manhattan (Montana) School District is reportedly under fire from the state's interscholastic athletic association after officials there received a tip that the high school football coach was hiding the proceeds of a team fundraiser to avoid having to comply with Title IX. 

Over the last three years, head coach Dale McQueary has withheld $8400 from a team fundraiser (selling gift cards) in order to spend that money without authorization.  His subterfuge included getting students to falsify the number of cards they had ostensibly sold.  This financial mismanagement violates state athletic association rules that requires fundraising proceeds to be reported, so that the school district can ensure that athletic spending overall is equitable on the basis of gender. The coach purchased equipment and meals for his team from this secret stash, ensuring that his team received benefits that necessarily would have been on top of whatever the school had determined was football's fair share. 

Now that the coach's action has been exposed, the state athletic association has asked the school superintendent to present a "corrective plan" for the association's approval.  The association could also impose any number of penalties ranging from a public reprimand to suspension and forfeiture of games.  Meanwhile, however, the school district's reaction to McQueary has come under fire.  Parents successfully challenged the school's decision to suspend McQueary from his coaching position for the remainder of the season, so that he would be available to coach the team's final game.  (Really parents!?)  And McQueary is reportedly challenging the school's decision not to reinstate him as coach next year.