Professor's Title IX Claim Against Northwestern Dismissed

A federal court in Illinois recently gave two reasons for dismissing Professor Peter Ludlow's Title IX claims against Northwestern University, arising from its decision to investigate charges by a graduate student that Ludlow had had nonconsensual sex with her during a period of time in which they were dating (the court's characterization).

First, the court determined that Ludlow was actually challenging an adverse employment action, and, as such, his Title IX claim was preempted by Title VII, the federal employment discrimination statute. The issue of Title VII preemption is not handled consistently by the courts, but there is precedent in the Seventh Circuit -- binding on the federal courts in Illinois -- that withholds Title IX remedies in cases where employees allege sex discrimination by their employer, reasoning that Congress intended the mechanisms of Title VII enforcement (which include first seeking relief from the EEOC) to apply instead.

Second, the court reasoned that even if the Title IX claims were not preempted, Ludlow had not alleged facts that suggest that the university's response in investigating the graduate student's claim had anything to do with his male sex, but instead, because the charge against him was rape. As the court put it, "That Ludlow is male is a conclusion without any link to the investigation itself and his statement that Northwestern 'needed to believe the victim' does not sustain the inference that Northwestern took the genders of the victim and accused into account."  Nor could Ludlow sustain a sex discrimination claim by arguing that men are more often burdened rather than helped by victim-friendly procedures, since there is no private right of action for disparate impact claims under Title IX.  In this way the court's decision is very similar to the majority of Title IX decisions in disciplined-student cases, such as the case against Columbia which is cited a number of times in the opinion.

After dismissing Ludlow's Title IX claim, the federal court determined that it had no basis for exercising supplemental jurisdiction over his state law claims, and subsequently dismissed those as well.

Ludlow v. Northwestern Univ., 2015 WL 5116867 (N.D. Ill. Aug. 28, 2015).

Michigan State's Grievance Procedure Violated Title IX

Today the Department of Education's Office for Civil Rights released the findings and conclusions of its investigation into two students' complaints that Michigan State University mishandled their complaints of sexual assault and related harassment and retaliation.  OCR determined that deficiencies in Michigan State's grievance procedure violated Title IX, as did its failure to notify students of the identity and role its Title IX Coordinator. Specifically, OCR found that even though it had notice of the alleged assault on the first student, Michigan State waited weeks before commencing an investigation because its policies at the time did not permit the university to go forward until the alleged victim filed a formal complaint. OCR determined that once the University initiated the investigation, it provided a thorough, impartial and equitable response. In the second student's case, it took the University a year from the time of report to resolve the matter, a time frame that OCR determined did not satisfy the requirement for a "prompt" resolution. 

In addition to reviewing the two complainant's cases, OCR also review three years worth of files documenting the university's response to sexual harassment and assault.  There it found more instances of delayed resolution, as well as possible failure on the university's part to notify the complainants of the final outcomes in their cases and their rights to appeal.  In one file, OCR made the "troubling" finding that the University waited until multiple sexual harassment complaints were filed to take action against a counselor who was reported to have harassed students who were seeking support for having been sexually assaulted.  In another case, the University wrongly dismissed a claim of co-worker sexual harassment because it was not sufficiently severe, despite having found credible the complaining employee's description of how the harassment had negatively affected the work environment.  There were other, similar examples of the University's inadequate handling of employee harassment. 

In response to OCR's findings, Michigan State has agreed to a number of corrective measures, including revising inadequate policies, improving notice of the Title IX Coordinator, improving staff training as well as training for students and student-athletes in particular, developing a Memorandum of Understanding with local law enforcement, and offering to address any harm students who reported sexual harassment or assault incurred as a result of the university's delay in processing their complaints.

Court Will Not Dismiss Disciplined Students' Title IX Claim Against Salisbury University

Two male students who were suspended from Salisbury University in Maryland can continue to litigate their claim that the university's flawed disciplinary process was the product of gender bias.  A federal court denied the university's motion to dismiss this claim, which means the plaintiffs' allegations would be sufficient to constitution a violation of Title IX in the event they are eventually proven true.  In "erroneous outcome" cases like this one, that means the plaintiff must first allege procedural flaws that call the disciplinary outcome into question.  Second, the plaintiff must allege  specific examples of gender bias that could plausibly have provided the motivation for the flawed proceeding.

The plaintiffs' complaint in this case alleged a number of procedural flaws including:

• that they were denied the opportunity to ask "critical questions" of the witnesses
• that the university withheld from them the witness statements, witness lists, and other evidence that they had the right to review before the hearing
• that they were denied the right to have their attorney present even though university policy affords them this right
• and that the investigators improperly influenced the disciplinary board in the way their presented their findings and conclusions

The court found these allegations sufficient of the first requirement.  The court also found that the plaintiffs' complaint contained the requisite allegations of gender bias, though it was a "close call."   Some of the plaintiffs' bias allegation was based on the university's effort to raise awareness about the problem of sexual assault on campus.  The court dismissed the idea that such bias could be inferred from program announcements presented in a "gender-neutral tone, addressed to all students, and published to improve campus safety for both men and women."  Similarly, funding a sexual assault prevention program with a grant from the Avon Fund for Women did not evidence bias, because the program was advertised "for all students."  However, the plaintiffs also alleged that "on information and belief" the university possesses communication evidencing its intent to impress the Department of Education by railroading male students accused of sexual assault. I was surprised that the court accepted this vague of allegation of bias as sufficient, but it did.  The court admitted that a general allegation of bias would not have been sufficient.  Allowing plaintiffs to proceed on an allegation like "we believe you have evidence of bias in writing" seems like a pleading tactic that would work any time a plaintiff does not have anything on which to base a specific allegation of bias, and thus operate as an end run around the requirement that allegations be specific in the first place.


In sum, the court rejected the claim that the university's sexual assault awareness programs supported the inference sex discrimination (which is probably reassuring for universities running similar programs). But it did permit plaintiffs to seek to "uncover discoverable and admissible evidence that Plaintiffs' gender was a motivating factor behind SU's allegedly flawed disciplinary procedures and wrongful conclusions." As a practical matter, Salisbury University will have to respond to the plaintiffs' requests for information, records, and depositions. If no evidence to support bias turns up, the university can later move for summary judgment.

Doe v. Salisbury Univ., 2015 WL 5005811 (D. Md. Aug. 21, 2015).

Back to school, back to reality

The new school year often brings some Title IX news. Stories that address what a girl versus a boy is allowed to wear for yearbook photos or whether the women's cross-country roster is being padded with runners from winter/spring track have made the back-to-school news in the past. This summer has not exactly been slow in the Title IX world. Court cases against various schools being brought by those who feel schools did not do enough and those who felt schools went too far continue to move through legal proceedings. (See Erin's post from last week.)

This is one the first back-to-school smh-es I have seen. And it is very bad. This morning it was local news; this afternoon national media picked it up.

An off-campus house at Old Dominion University where some members of the Sigma Nu fraternity live, had banners hanging from the windows this weekend "welcoming" female first years--and their parents--with threats of sexual assault. Rivaling a Yale fraternity's chants of "no means yes, yes means anal" from several years back, the banners, only slightly more subtle, read: "Rowdy and fun. Hope your baby girl is ready for a good time"; "Freshman daughter drop off (with an arrow pointing to the front door)"; and "Go ahead and drop off mom too..."

The outrage and condemnation was swift with the president and other university officials speaking out over the weekend against the now-removed banners. But it was not until today that Sigma Nu was suspended the university, a move that was supported by the fraternity's national organization, who said that it does indeed appear that members of the fraternity participated in the banner making and that those men will be dealt with by the organization.

This incident certainly adds to recent discussions about the role and current manifestations of sororities and fraternities on campuses. More narrowly, and more to what we think about here, it speaks to the culture that exists on campus. ODU is NOT on the list of schools being investigated by OCR and there is no Title IX lawsuit against them. This does not mean that is all is well at the university.

Last spring, a local news station spent considerable effort investigating the case of an ODU student who was raped on campus (not by an enrolled student). She contends, and evidence confirms, that the university was slow to respond to her requests--like to change housing, which they did after a month though they charged her more for her new housing--and offered very little support. Her scholarship was yanked when her grades fell in the aftermath of the rape, when she was suffering from PTSD. She did not file a complaint, as I noted, but if she had...well, things like fraternity members making public assertions about the role they think female students should play might make it into the report. In other words, though ODU may have dealt with that rape and this current situation, they need to treat these not as isolated incidents but as part of a culture marked by misogyny. 

Campus Sexual Harassment, Sexual Assault Litigation Roundup

In two recent judicial decisions, courts refused to grant university's motions to dismiss Title IX cases in which the plaintiff alleged that the university did not adequately respond to his or her report of sexual harassment or assault.

• In the first case, a federal court in Illinois allowed a male medical student to continue to litigate his case against Northwestern University, in which he alleges that the university did not adequately respond to his report of sexual harassment by a male professor.  The professor, the plaintiff alleges, made suggestive comments and retaliated against the plaintiff in various ways for refusing his sexual advances. The court agreed that the allegations in the plaintiff's complaint satisfy the legal standard for liability under Title IX, and thus cannot be dismissed without continued litigation.  The plaintiff alleges a sexist double standard in Northwestern's policy of not investigating reports of incidents that were two years old, the time frame that lapsed between the professor's misconduct and the plaintiff's report to the university's sexual harassment office. Because the plaintiff's complaint included an example of a female complainant's case that was investigated even though the harassment was similarly out of date,  it could, if proven, subject Northwestern to liability under Title IX. The court also denied the university's motion to dismiss the plaintiff's retaliation claim, in which he alleged that the university continued to take adverse action against him after and because of his reporting of the professor's harassment.  Yap v. Northwestern Univ., 2015 WL 4692492 (N.D. Ill. Aug. 6, 2015).

• Similarly, a federal court in Florida denied Florida State's motion to dismiss the Title IX case filed by  Erica Kinsman, who alleges that the university did not adequately respond to knowledge of her report that quarterback Jameis Winston raped her in 2012.  Though FSU disputes the allegations in the complaint, the judge ruled that it is possible that a jury could find truth in Kinsman's claims that appropriate university officials had actual notice of Kinsman's report by January of 2013, and that they did not initiate an investigation for eleven months, which would satisfy the standard of institutional liability under Title IX.  The judge set a trial date for July of 2016, though it is possible of course that the case could settle before then, or that FSU could file and prevail on a motion for summary judgment after the discovery phase which allows the parties to gather evidence. 

Also, there were developments in three disciplined-student cases worth noting.

• A federal court in Virginia denied Washington and Lee University's motion to dismiss a male student's claim that the university violated Title IX when it expelled him for sexual assault.  The court agreed that the plaintiff's complaint contained sufficient allegations that would, if proven, constitute a violation of Title IX under the "erroneous outcome" framework.  At this early stage of litigation, a plaintiff in an erroneous outcome case must (1) cast doubt on the accuracy of the university's finding against him; and (2) allege specific facts that can establish gender bias as a motive. Here, the plaintiff alleged numerous procedural violations that resulted in evidence favorable to him being excluded from the disciplinary panel's consideration. He also alleged that gender bias could be attributed to the Title IX officer who presented the case against him, as evidenced by her public endorsement of the idea that "sexual assault occurs whenever a woman has consensual sex with a man and regrets it because she had internal reservations that she did not outwardly express."  Because the plaintiff's case "parallels of the situation it describes and the circumstances under which Plaintiff was found responsible for sexual misconduct" and because the Title IX officer wielded "considerable influence" in the proceedings, it is possible, the judge reasoned, for a jury to find evidence of gender bias.  This is a rare outcome in that disciplined-students' Title IX claims do not usually survive the university's motion to dismiss -- usually because of insufficient allegations of gender bias. Doe v. Washington and Lee Univ., 2015 WL 4647996 (W.D. Va. Aug. 5, 2015).

• And, a state court judge in Tennessee reversed a decision by the University of Tennessee at Chattanooga to expel a male student and wrestler Corey Mock for sexual assault.  In that case, a female student reported to the university that Mock had had sex with her while she was unconscious.  A disciplinary panel initially determined that there was not enough evidence to find Mock responsible, but this decision was overturned on an appeal within the university.  The court took issue with the university's ultimate decision, which it interpreted as requiring Mock to prove he had obtained consent rather than requiring the complainant to prove he hadn't. Though the court's decision was based on state administrative law, not Title IX, the outcome is consistent with what is required of universities under Title IX.  Even though a complainant does not have to have overwhelming evidence (only a preponderance) that consent did not occur, it is still the complainant's burden to prove that consent did not occur.  

• A superior court judge in Los Angeles reinstated plaintiff Bryce Dixon to the University of Southern California while his case against the university is pending.  Dixon, a football player, is challenging the university's decision to expel him for sexual assault stemming from a sexual encounter with a female trainer that he claims was preceded by implied consent, though a university disciplinary panel found otherwise.

11th Circuit Reverses Summary Judgment in "Rape Bait" Case

In 2013, we blogged about a district court decision that a school district in Alabama could not be liable under Title IX for its participation in a teacher's aid's plan to use an eighth grade girl as, essentially, bait to catch a habitually-offending male student "in the act" of soliciting female classmates for sex. The plan called for the female student to agree to the male student's proposal to meet in the bathroom, where officials would intervene before any sexual assault occurred. However, no timely intervention occurred and the female student was raped.  We noted with alarm the district court's exceedingly narrow application of the deliberate indifference standard, since there was a genuine factual dispute that the assistant principle was aware that a female student was under a serious threat of sexual assault and did nothing to stop it.

Thankfully, this decision has been reversed on appeal.  Last week, the Eleventh Circuit Court of Appeals ruled that there was enough evidence to warrant a trial on the crucial elements for institutional liability, i.e., actual notice and deliberate indifference.  There were enough facts in evidence that a jury could potentially find that shool district officials had actual notice of the threat posed by male student.  Namely, the school board admitted that officials knew of reports that the male student had harassed and assaulted other female students in past, and while it was disputed whether the Assistant Principle knew about the sting operation in progress, a jury could potentially find that this was so.

The court also thought there was enough evidence that a reasonable jury could find that school officials were deliberately indifferent -- both to the threat of rape and in their response to the rape after it occurred.  Not only was deliberate indifference suggested by officials' failure to intervene in the sting operation, but also, the court noted, its inadequate teacher training on sexual harassment, its ineffective disciplinary policies and record keeping practices, and the fact that the rapist himself was sometimes unsupervised during his in-school suspension, and the principal's failure to revise any policies after the rape had occurred. 

The plaintiff's Title IX claim will be allowed to proceed to trial.

The court also reinstated the plaintiff's constitutional claims against the principal, assistant principal, and teacher's aid as individuals.

For some other commentary about the case see here. 
For a copy of the decision, see here, or:

Hill v. Cundiff, 2015 WL 4747047 (11th Cir. Aug. 12, 2015)

Settlement in Oregon case

The woman who filed a Title IX lawsuit against the University of Oregon, including basketball coach Dana Altman, has dropped the lawsuit as part of an $800,000 settlement. The student, who will also receive a waiver of her tuition and fees to finish her education at the university, believed that the coach knew that at least one of the players who allegedly assaulted her had been kicked off the basketball team at Providence College for participation in a gang rape.

We have written about the Oregon case, especially in light of the larger issue of a school's responsibility for and awareness of past incidents when accepting transfer student athletes. Brandon Austin--the player from Providence--is now playing for a junior college in Florida. We were very interested to see what would happen in this case, whether some kind of precedent would be sent or warning issued about accepting student athletes with records of violent and criminal behavior. The settlement has less ability to do so because all parties are expected to appear with pseudo smiles on their faces and some words about respect for the system, or--at worst--say nothing at all. There is a similar case in Oklahoma where a University of Tulsa student has filed a Title IX lawsuit against the school after alleging she was raped by a basketball player who should have never been allowed on campus, she states, due to his charges of sexual assault at a previous institution; so perhaps we will see something different happen there.

What to take from this settlement? My initial thoughts center around the following: that's a lot of money, but it is unlikely that significant change will be effected.

As I said in a previous post (linked above) whether the woman's legal team would have been able to prove that Oregon and/or Altman knew of Austin's past allegations is something only a trial would have shown. I know that trials can be difficult in these cases, but a trial may have increased the discourse about the transfer process for student athletes that focuses not on when they can play (i.e., eligibility) but on whether they should play or be granted admission to the school. A trial had the potential to raise awareness of this issue. The question, of course, is at what cost to the alleged victim. Maybe it would have put pressure on the Pac-12 to pass a policy similar to the SEC's which bans the acceptance of transfer athletes with past incidents of domestic violence and assault. (Yes, I have noted that these policies will only work when there is greater transparency in the transfer process itself. Still, it signals an acknowledgement of the issue.)

Good news to take from this case: according to the woman's own statement (which admittedly is influenced by the settlement and the fact that this is over and the agreement that the parties not "disparage" each other), she received support from the university community--in addition to outside groups and individuals. This is very different from the situation at Florida State where Jameis Winston's alleged victim was targeted and driven off campus when her allegations against the now NFL quarterback became known. It is arguably a low bar we have set when praise goes out to a university community for not further harming a victim by ostracizing and doubting her. Still, she clearly feels comfortable remaining at UO and that is a good thing.

The not-so-good: The feeling that the $800,000 settlement is pay off. Insurance, according to one source, will pay for the settlement, which again is quite large which again suggests that someone knew something but what that is, we will never know. The settlement is not technically confidential, but details of the case do not appear to be forthcoming.

Also, the reforms the university have agreed to are quite frankly weak. They have made a very concerted effort to demonstrate Title IX compliance by hiring many new staff members with more hires on the way. The proposed reforms to the student-athlete transfer process, though, are a little concerning. The university plans to ask students if they have a "disciplinary record" at their former schools. Anyone who says yes must agree to sign a waiver giving UO access to those records if the student wants to be considered for admission. It is unclear what would prevent a student from lying given that student records are subject to pretty strict privacy laws. Also, given that most coaches do not want to know these things, I do not see this as being at all effective. (Happy to be proven wrong, though.) Will there be some kind of I-have-to-ask-but-please-don't-tell-me culture established? Would this provide coaches and the school some kind of immunity? "Well I asked and he told me there was nothing, so what was I supposed to do?" I do not see this kind of standard holding up in court. The school has a much greater responsibility to vet student athletes. They do it when it comes to stats and successes and skills, so it's time to extend that research and really prove, as the current president said in relation to this case that "the important thing is we’re not a school of athletes and students. We’re a school of students. Everybody needs to be part of this effort."

Going back to student privacy, another unresolved issue from this case is the gathering of the victim's counseling center records by university-hired lawyers. It is possible that that privacy violation was part of the reason for the large settlement. This is something else the university will need to address as it continues to revise its policies and procedures in cases of sexual assault and harassment.

Eyes will probably be off Oregon now that this case has settled, unless additional details that explain the settlement are revealed. The case in Tulsa, as I mentioned, has the same potential to contribute to a larger discussion of student-athlete behavior and the terms and conditions of the transfer process. 

LAS-ELC "Fair Play" Video

In the spirit of sharing helpful resources, this new video created by the gender equity team at Legal Aid Society-Employment Law Center is aimed at students and helps them understand Title IX's application to K-12 athletic programs. It also helps them understand their rights under California's Fair Play in Community Sports Act, which applies to municipal athletic programs that are outside the scope of Title IX.

For more on LAS-ELC's "Fair Play" initiative, see here.

Title IX Claim Dismissed in (Yet Another) Disciplined Student Case

A federal court in North Carolina is open to the possibility that Appalachian State University denied a male student procedural and substantive fairness by suspending him for 20 days for sexual assault before the hearing panel ultimately exonerating him on appeal. However, this does not constitute a violation of Title IX, the court ruled, because there is no allegation to support the claim that the university was biased against him because of sex.  In granting the university's motion to dismiss the plaintiff's Title IX claim, the court rejected the plaintiff's reliance on Yusef v. Vassar College, a 1994 decision and one of the only examples of a disciplined-student's Title IX claim surviving a motion to dismiss.  In that case, the plaintiff alleged that male students were "historically and systematically" found guilty when accused of rape, and the court found this allegation of bias sufficient.  But the court ruled that similar allegations do not satisfy today's higher standard for more specific pleading, which was imposed by two Supreme Court cases, Twombly and Iqbal, in 2007 and 2009, respectively.  In so doing, this court joins a long list of other courts who have rejected Title IX's applicability to disciplined-student cases.

That said, the court was open to the plaintiff's arguments about procedural and substantive fairness as protected by the Constitution's due process clause.  Namely, the court acknowledged that the university's decision to hold a second hearing in the sexual harassment matter after the first hearing panel found him not responsible violated his right to procedural due process, as did the fact that he was provided less than 24 hours notice that a sexual harassment charge had been added to the hearing as well.  The plaintiff will be allowed to continue to litigate these claims, as well as his claim that the "arbitrary" decision of a university official to overturn an initial hearing panel's decision in his favor without any basis for doing so, was substantively unfair. 

(For the record, many of the plaintiff's other arguments about procedural fairness were in fact dismissed, including: the fact that he had a graduate student represent him while the complainant had a lawyer, the fact that the university did not tell him about potential witnesses that could have helped his case, the fact that the university excluded a potential witness who would have testified about the complainant's sexual history, the fact that the hearing panel included a member who had found against his co-respondent in a prior matter, and the fact that no one informed him of his right to have a separate hearing from that of his co-respondent.)

Decision: Tanyi v. Appalachian State University, 2015 WL 4478853 (W.D.N.C. July 22, 2015).   

Judge Dismisses Title IX Claim in Bathroom Case.

At a hearing in federal court yesterday, Judge Robert Doumar dismissed the Title IX claim filed by a transgender student against the public schools in Gloucester, Virginia. The student had alleged that the school district's policy of excluding him from the male restroom and facilities violated Title IX, arguing with the Department of Justice's support that sex discrimination has been broadly interpreted to encompass gender-related considerations as well, and thus ought to cover discrimination targeting a student because his gender does not match the sex he was assigned at birth.

From the sound of it, the judge did not give the Title IX argument much of a chance.  According to this article describing yesterday's hearing, the judge announced his decision to dismiss the Title IX claim in the middle of the ACLU attorney's argument on behalf of the student, stating "your Title IX case is gone by the way....I decided that before we started."  He made this announcement without even giving the attorney from the Department of Justice, who had intervened on the student's behalf, an opportunity to present his arguments.

The judge went on to make some other confounding statements, including repeatedly characterizing transgender as a mental disorder -- which is not only insensitive and inaccurate, it completely misses the point about sex discrimination. He also took the opportunity of the DOJ attorney's eventual presentation (which was, by that point, futile) to grind an ax about the agency's agenda in unrelated matters. “Where the U.S is going scares me....It really scares me.” the judge reportedly said, bringing up the agency's policy of not strictly enforcing marijuana as another example of something his opposes. "Maybe I am just old fashioned,” he admitted before reportedly turning his contempt to Congress -- too quick to pass new laws, in his opinion -- and finally closing the hearing with the statement, "Oh well, things are changing."

It certainly sounds to me like a bizarre day in court.  But will the judge's odd behavior effect the outcome of the case?  It is rare that judicial decisions are overturned because of the judge's bias or impartiality, since courts require evidence of some specific connection between the judge and one of the parties, witnesses, or subject matter of the case. It is unlikely that a judge's insensitivity, breach of protocol, irrelevant tangents, and admission of being "old fashioned" will meet that standard. But if the judge's irrelevant considerations and failure to engage with the arguments presented are reflected in the order dismissing the claim, as his hearing demeanor might suggest, then his decision is certainly vulnerable to appeal on the merits. An appellate court does not have to defer to a lower court's interpretation of the law, and is less likely to agree with a decision that is not well-reasoned.

UPDATE 9/29/15: the district court's opinion dismissing the case was recently published.  It is  G.G. ex rel. Grimm v. Gloucester County Sch. Bd., 2015 WL 5561090 (E.D. Va. Sept. 17, 2015).

EEOC Ruling on Sexual Orientation Discrimination Could Influence Title IX Cases

Last week, the Equal Employment Opportunity Commission issued a ruling that asserted its jurisdiction under Title VII over an employee's case in which he alleged he was denied a promotion because of his sexual orientation. The Commission acknowledged that Title VII contains no express prohibition on sexual orientation-based discrimination. But it ruled that a complaint about discrimination because of one's sexual orientation is "necessarily" a complaint that the employer took sex into account, as is thus proper to consider under Title VII. Here is some of its reasoning:

Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms. “Sexual orientation” as a concept cannot be defined or understood without reference to sex. A man is referred to as “gay” if he is physically and/or emotionally attracted to other men. A woman is referred to as “lesbian” if she is physically and/or emotionally attracted to other women.  Someone is referred to as “heterosexual” or “straight” if he or she is physically and/or emotionally attracted to someone of the opposite-sex.  It follows, then, that sexual orientation is inseparable from and inescapably linked to sex and, therefore, that allegations of sexual orientation discrimination involve sex-based considerations.

The Commission continued to explain that if an employer fires a man for being in a relationship with another man, but would not fire a woman for being in a relationship with a man, that is treating the male employee differently because of his sex.  It's also a natural extension of the "sex stereotyping" theory because heterosexuality is a sex stereotype.

The EEOC's conceptualization of sexual orientation discrimination as entirely within the ambit of sex discrimination is a broader definition of sex discrimination than has been applied by most courts.  Courts are generally willing to accept that sex discrimination covers discrimination on the basis of an employee's gender-nonconforming appearance and behavior in the workplace, which may include (for example) claims by gay male employee targeted for feminine mannerisms, or a lesbian employee discriminated against for masculine appearance.  But the EEOC's recent interpretation goes beyond this and confirms that discrimination targeting the employee's sexual orientation per se  is actionable.


This decision is directly binding only on future enforcement decisions by the EEOC in the context of cases involving the federal government. But, the EEOC's interpretations are often influential on the courts that consider the meaning of sex discrimination under Title VII's application to the private sector, as well what it means as used in other statutes, like Title IX. Thus, even though it doesn't govern the education context, the EEOC's decision helps strengthen arguments by students or school employees who may have been excluded from participation, or fired, or denied admission, or harassed because of their sexual orientation, by giving courts and attorneys a roadmap of persuasive reasoning to follow.

FSU: Treating symptoms not changing cultures

They say that the first step to solving a problem is admitting you have a problem. So how does Florida State go about solving violent behavior among its student athletes? The football players are now banned from bars. The bars have not banned them--the coach has.

Jimbo Fisher, reports say, has told his players no more bars.

This is neither admitting to a problem nor solving one.

The directive was issued after a second FSU player was punished for assaulting a woman. Dalvin Cook was suspended from the team after he hit a woman outside of a bar. The first (?) incident resulted in quarterback De'Andre Johnson being kicked off the team after he hit a woman in a bar.

Bars are not the problem here. The problem is the culture at FSU and the precedent that has been set by the mishandling and outright denial of problems within athletics. I would suggest that the bar ban is simply treating the symptoms, but I don't even think bars are the symptom. As others have already noted, plenty of people go to bars--athletes, non-athletes, students, and others--without ever hitting women or anyone.

Counselors are also coming in, according to a statement by Fisher. This appears to be a treating of the symptoms, though arguably I do not know what the counselors will address or their methods and if there will some digging into the roots of these issues. Because as Fisher himself as already noted, student-athletes go to a lot of sessions about things like assault and drinking. Some of my male student-athletes (not at FSU) have reported being in workshops where they are taught how to interact with women. So is FSU not doing these things? Are they not doing them well enough? Or are they sending contradictory messages? Don't do this! (but if you do we may be able to get you off by ignoring the problem, keeping it out of the press, withholding evidence, questioning the reputation of your accuser in such a way that leads to her harassment, and assorted other methods.)

I think the counselors should be brought in for the staff, too.

Another matter: what will happen to De'Andre Johnson? Will he transfer--and when? (is he even still enrolled at the school?) Under the new SEC rule preventing transfers of student-athletes who have been punished for violence against women, he will not be headed to cross-state rival University of Florida or perennial powerhouses such as Alabama and Auburn. Johnson said he was provoked by the woman, alleging that she shouted racial epithets at him, but regrets his actions. This might be the opening to another spot at a non-SEC school. The second chance discourse. He had many offers from top football schools. Will one of them come back for him?

Will Cook be kicked off the team? He was a more highly touted recruit than Johnson. What is going to happen to this indefinite suspension? Do we have to wait for video evidence like the kind that caught Johnson hitting his victim? Not kicking him off the team for doing what appears to be the same thing might send a mixed message. Apparently President Thrasher addressed the football team and told them that playing for FSU is not a right but a privilege. Will some players receive more privileges than others?

OCR and Fayetteville State Enter Resolution Agreement over Athletics Complaint

The Department of Education's Office for Civil Rights has reportedly entered into a resolution agreement with Fayetteville State University in North Carolina, resolving a Title IX complaint that alleged inequitable treatment of women's sports.  The complaint was filed by the parent of a former softball player whose chief concern was a disparity in access to the trainer and other medical care. The resolution agreement requires FSU to assess compliance with Title IX's requirement for equal treatment regarding equipment and supplies, scheduling for games and practices, travel and per diem allowance,opportunities for coaching and academic tutoring, assignment and compensation of coaches and tutors, provision of locker rooms, practice and competitive facilities, provision of medical and training facilities and services, provision of housing and dining facilities, and publicity. The university has a 2018 deadline to correct disparities revealed by the assessment. 

   
The complainant was pleased about the agreement but was also quoted as questioning why university officials "weren't making decisions [about compliance] all along?"  It seems she shares my frustration for this weak, generic version of Title IX enforcement that lets universities get away with avoiding compliance until a resolution agreement occurs.  Title IX regulations about equal treatment have been on the books since 1975. The time to "start" the process of compliance was forty years ago.

Also, the resolution agreement apparently does not address the disparity in the number of athletic opportunities for male and female students, at least, no mention of that appears in the article linked above.  This omission is noteworthy because according to public data, FSU's student body is 67% female, but women receive only 69 out of the university's 179 athletic opportunities -- under 39%.

Racial implications of the Chicago Public School District agreement

On Monday, I wrote about the agreement between the Chicago Public School District and OCR that will hopefully move to immediately increase the number of sport opportunities for girls in the district. The 10% gap between opportunities by sex and proportion of enrolled female students is equal to just over 6,000 spots.

What none of the coverage of the agreement mentioned was the huge (potential) racial impact of this agreement. This spring, The Boston Globe published an article about the discrepancy in sport involvement between white girls and girls of color focusing on Massachusetts were 27 percent of heavily minority schools (I did not see a definition of this categorization) had large gaps (also not definition) in athletic participation between boys and girls versus 6 percent of heavily white schools.Scholars have been talking about these gaps and disproportionate racial effect of Title IX for many years. Recent survey data show that across the country 40 percent of heavily minority schools have large participation gaps.

Chicago is clearly part of that statistic. Recent demographic information shows that African-American students comprise nearly 40 percent of the district and Hispanic students 45 percent. So when opportunities to play sports are being created for girls it should follow that these spots will be filled by minority girls. This is a positive given, of course, the known health and social benefits of sports.

My worry regarding Chicago, and potentially other similarly situated school districts, is that a reliance on prong three may have a disparate racial impact. It is true that the Chicago Public School District is seeking proportionality, but one of the provisions is that a certain number of schools must show compliance with only one of the prongs in the immediate future. The district will also be surveying students regarding their interests. But in heavily minority schools, there may be lots of unmet interests but also certain inabilities to participate based on situations which reflect the intersection of gender, class, and race. For example, cash-strapped schools across the country are instituting fees for sports. Students in poorer neighborhoods may not be able to afford such fees or a family may not be able to afford fees for both a son and daughter. (Yes, waivers based on income are sometimes available in pay to play situations, but they are not always taken advantage of due to the stigma of poverty and a host of other reasons.) In families where older children have care taking responsibilities for siblings and other family members, participation in sports may be desired but not possible. Girls in a family are more often called on in these situations.

In other words, Chicago, and really any school district interested in racial equity, must go beyond simply creating opportunities. There need to be structures in place to enure that girls with the desire to play are not facing additional impediments to participation.

Another Disciplined Student's Title IX Case Dismissed

I recently posted a round-up of disciplined-student cases in which courts rejected Title IX claims filed against universities by students accused and sanctioned for sexual assault.  Today there is another to add to that list. A male student sued the University of Massachusetts-Amherst challenging his expulsion for sexual assault.  He claims that the the sexual encounter he had with the complainant was consensual, but the Student Conduct Hearing Board determined that she was incapacitated by alcohol and did not consent, a finding -- along with the a sanction of suspension -- upheld on appeal.  The plaintiff alleges that the procedures employed by the university were unfair.  As the court put it,

Plaintiff points to difficulties getting information, deficiencies in the investigation, limits placed on his ability to cross-examine witnesses, the exclusion of some documentary evidence he wished to introduce, and the misuse of witness testimony by the hearing board. He also asserts the student member of the hearing board had a conflict due to an earlier internship within a criminal prosecutor's office. 

But, even though the court acknowledged that these allegation would be sufficient to raise questions about whether the outcome of his proceeding had been correct, the court found lacking any allegation that these procedural errors had occurred because of the plaintiff's sex.  Disparate treatment because of one's status as a student accused of assault is not the same thing as disparate treatment because of sex.  Nor did the plaintiff allege facts that could result in a Title IX violation based on selective enforcement, which occurs when a university sanctions members of one sex more harshly than the other for similar misconduct. 

The plaintiff had also attempted to bring state law claims (unspecified, but presumably breach of contract) but the court rejected them on grounds that the 11th Amendment protects states (including state universities) from being sued without their consent.

The plaintiff also apparently tried to argue in opposition to the university's motion to dismiss that his constitution right to due process had been violated.  But because the plaintiff had not included this claim in his original complaint, the court could not consider those arguments later in the case.  I was recently asked by a reporter why plaintiffs in disciplined-student cases continue to make Title IX arguments even when they are largely unsuccessful, and I said I suspect there is some attraction to that theory on a symbolic level.  It might be extra-satisfying for them to use the same weapon against the university that had resulted in their expulsion in the first place. But this attraction to Title IX seems to be harming disciplined-student plaintiffs who might have valid claims under other sources of law. If this plaintiff had not been so enamored of using a reverse discrimination argument, perhaps due process would not have been an afterthought?

Doe v. Univ. of Massachusetts-Amherst, 2015 WL 4306521 (D. Mass. July 14, 2015).

Court Rules UC San Diego Unfairly Sanctioned Student for Sexual Assault

A Superior Court judge in California recently invalidated the University of California at San Diego's decision to suspend a student for sexual assault after finding that the university denied the student a fair hearing and lacked the evidence to find him responsible. The student challenged the university's decision under a provision of California law that requires state agencies -- applicable as well to state universities -- to use fair procedures and reach evidence-based decisions. Because this is the Title IX Blog, I'm going to analyze the decision with particular attention to whether it creates a conflict between a university's obligation under Title IX to respond to sexual assault, and its other simultaneous obligation to protect the rights of a student who is accused.

Procedural errors. The judge found that the university unlawfully limited the plaintiff's right to cross-examine the primary witness against him, namely, the female student who had accused him of sexual assault.  According to the university's procedures, a student who is accused of sexual assault does not cross-examine the complainant directly, but rather, submits his questions to the chair of the disciplinary panel that is conducting the hearing, who asks the questions on behalf of the accused.  In this case, the accused student submitted 31 questions for possible cross-examination of the complainant, but the chair asked only 9 of them.

Notably, the court's ruling on this issue does not conflict with a university's responsibilities under Title IX to effectively respond to sexual assault complaints.  The Department of Education's guidance is agnostic on the question of whether to permit cross-examination of witnesses and parties, only that the rights of both parties be the same in that regard.  And while the Department endorses the practice of conducting cross-examination through an intermediary like a hearing administrator, that practice itself was not the problem in this case. In fact, the court didn't seem to have a problem in general with the practice of weeding out questions "to prevent additional trauma to potential victims of
sexual abuse." It was just that, in this case, the chair took that too far and redacted a whole series of questions about ostensibly exculpatory text messages exchanged by the parties after the alleged assault.  In so doing, the university denied the plaintiff a meaningful opportunity to be present a material aspect of his defense.

Next, the court found that the plaintiff should have had the opportunity to cross-examine the investigator who prepared a report that was introduced at the hearing.  Because the investigator was not a witness at the hearing, the plaintiff had no opportunity to challenge the content of the report or counter the report's conclusion that he was guilty.  Again, this ruling does not create any conflicts with Title IX, which nowhere endorses denying students the right to challenge an investigators' findings.

However, another problem the court had with the hearing was the fact that the committee allowed the complainant to testify against the plaintiff from behind a screen. This objection is less persuasive to me than the others, since the court's only rationale was that a screen was unnecessary because the plaintiff had not be hostile towards the complainant.  (The court also pointed out that a screen prevents the fact finder from evaluating facial expressions and non-verbal communication, which may be relevant to credibility.  However, there seemed to be some uncertainty, which the court did not resolve, about whether only the plaintiff could not see the complainant or whether the committee's view of her was blocked as well.)  In terms of Title IX, the Department of Education endorses (though it does not require) the practice of sequestering the complainant to spare her additional trauma of being in the same room as the person she is accusing of rape, and still having her participate "by using closed circuit television or other means." Schools, at least public schools in California, should be wary going forward of considering screens as such "other means."

Lack of evidence to support decision.  In addition to committing procedural errors, the university also failed to base its decision on "substantial evidence" as required by California law -- a standard of evidence which (despite word "substantial" in its name) only means "evidence that a reasonable mind might accept as adequate to support a conclusion."  If there is a difference between this standard and the preponderance standard required by the Department of Education's Title IX guidance, I believe it is a negligible one.  Yet, in this case, the court determined that such evidence was lacking.  Because the investigator's report was not subject to cross examination, it should have been excluded from consideration. Therefore, the complainant's hearing testimony was the only relevant evidence the committee should have considered, and the court viewed this testimony as ambivalent on the matter of consent.

Change of sanction with no explanation. The final error committed by the university was to respond to the plaintiff's appeal of the committee's decision to the Dean by increasing his sanction from one quarter to one year. There was no basis for this decision nor any explanation provided. It probably goes without saying, but of course a university is under no Title IX obligation to take a similar course of action.

In sum, I think this decision is important because it reminds institutions who are increasingly aware of their Title IX obligation to address sexual assault of their of their concomitant obligation to provide fair and meaningful hearings to students who are accused.  Not only for the sake of students who are accused, but victims and their advocates have a stake in the integrity of the process as well. It is possible to hold fair hearings and comply with Title IX and that is what colleges and universities should be striving to do. 

Louisiana Tech Removes Discriminatory Fee

Last week we posted about a challenge to Louisiana Tech practice of charging female students a fifty cent fee to fund the budget of the Association of Women Students.  By way of update, we now see that the fee has been discontinued.

A student senator filed a complaint with the Departments of Education and Justice, having taken on the fight on behalf of female constituents who objected to the fee.  The discriminatory nature of the fee was particularly galling because the university also pressured the AWS to spend its budget on improvement projects to benefit the campus as a whole, like campus lighting and golf-cart transit projects.

Chicago Public Schools making changes

In 2010, the National Women's Law Center named the Chicago Public School District as one of the worst offenders of Title IX (along with 11 other districts nationwide).

Last week, the district entered into an agreement with OCR that will add more opportunities in girls' sports. The district must now add opportunities in the majority of its 92 schools. The goal is to achieve proportionality by the 2018-19 academic year.

Some schools have further to go than others. The overall numbers from 2014 show an approximate 10% gap between enrollment and opportunities for girls. The numbers that truly paint the picture, however, are how many opportunities this gap encompasses. Twenty-five schools will need to add approximately 100 opportunities (per school!) to achieve proportionality. Lane Technical High School must add over 400. In total, though, the gap is equal to over 6,000 opportunities.

The district had tried to prove that they were meeting the interests and abilities of female students based on interest survey results of all students, but OCR determined that the low rate of response from girls was not proof of met interests. This decision reinforces to schools that to prove met interest, a serious and thoughtful process must occur.

Another positive message from the agreement: OCR refused to recognize the competitive dance and cheer teams that some schools attempted to count. Though this issue seems to have been well-documented, there are many schools--especially high schools--that continue to place their female-dominated dance and cheer teams in their Title IX numbers, despite OCR's statement in 2008 that activities which promote and support other sports cannot be counted.

OCR has placed various deadlines on the district. Though the ultimate goal is prong one compliance by 2019, 12 high schools must prove compliance with one of the prongs by August 1. Schools that do not have proportionality by the end of September must engage in a "comprehensive assessment" of student interests and use the results to create new teams or add opportunities to existing teams.

In short, OCR is demanding to see movement towards equity and to see it now. There are other requirements including a district Title IX coordinator specifically for athletics, information about Title IX and athletic opportunities for girls on the district web page, and the creation of a database to monitor progress.

Title IX Complaint Challenges Student Fee for Women's Association

A student at Louisiana Tech University has filed a complaint with the Departments of Education and Justice over a student fee used to fund an organization called the Association for Women Students.  Louisiana Tech reportedly assesses a fifty-cent fee only on women students. 

It is unclear to me whether the complainant, who is male, is objecting on behalf of women to the fact that they have to pay more in fees than their male counterparts, or if his concern is that the fee is used to fund an association that promotes women's interests. Fee issues aside, I do not think it violates Title IX for the university to support the Association for Women Students.  From what I could tell on its website, the AWS does not limit membership based on sex.  If I'm wrong, and it does, then that would be the Title IX problem right there. But the association appears to be open to all students, regardless of sex, who have an interest in promoting leadership and networking for women and celebrating multiculturalism among women. Moreover, the list of projects that the AWS has taken on all seem to benefit the student body as a whole rather than exclusively women.  For example, the AWS has sponsored safety phones on campus and golf carts to help transport students at night, as well as microwave ovens and vacuum cleaners in the dorm. While I am slightly concerned that these items are not already supported out of the university budget, I do not see anything discriminatory in the university sponsoring an organization that promotes projects such as these.

However, I do agree that singling out women to pay an additional fee, even one as low as fifty cents, is in a technical sense discrimination because of sex. Instead, Louisiana Tech should do what many other universities and colleges do, and charge all students a general student activity fee that supports various student groups that do different things and appeal to different constituencies. As long the fund uses sex-neutral criteria for determining what groups get supported, and as long it doesn't fund groups that restricting membership based on sex, I don't think there is anything discriminatory about using funds from a general student activity fee to support a group that exists to promote women's leadership and networking and does projects that benefit the campus as a whole.

Round-up of Decisions in Disciplined-Student Cases

In the last half-year, federal district courts around the country have issued decisions in cases against universities filed by students disciplined for sexual assault.  We blogged about two such decisions when they occurred; courts in separate cases dismissed Title IX and other claims against both Columbia University and Vassar.  Besides these two, several more courts have issued rulings in disciplined-student cases in 2015, warranting an overdue "roundup" from me. The details of these cases are presented below, but by way of summary, in all of these cases, the plaintiff's Title IX claims were dismissed early in the litigation. As for claims under other sources of law, one decision (Sterrett) allowed a plaintiff to continue to litigate a procedural due process claim, though in a considerably narrowed form, and others (Peloe and Doe) foreclosed due process claims entirely because the student did not exhaust other remedies first by appealing within the university. Another decision (Marshall) summarily dismissed a student's First Amendment claim. State law claims were not generally represented among these decisions, except in one case (Knox) where the court remanded state law claims because it was without jurisdiction to consider them once the federal claims had been dismissed.

• A male student at Knox College was disciplined for sexual assault of two female students.  In his lawsuit against the college, he argued that there were procedural deficiencies in the grievance proceeding that resulted in his discipline, such as not being able to present all exculpatory evidence or cross-examine one of his accusers who did not attend the hearing.  Without deciding whether the alleged procedural deficiencies constituted violations of state law (claims over which the court had no jurisdiction), the court dismissed the plaintiff’s Title IX claim due to the plaintiff’s failure to allege specific facts that support a conclusion that the university intentionally deprived the plaintiff of procedural rights because of his sex.  Blank v. Knox College, 2015 WL 328602 (C.D. Ill. Jan. 23, 2015). 

• A male student at the University of Michigan sued university officials involved in the process by which he was suspended for raping a female student, which he denied having done. His lawsuit challenged various alleged procedural inadequacies as violations of both Title IX and the Constitution's due process clause. The court dismissed the plaintiff’s Title IX claim because he did not include any specific allegations to support his claim that procedural inadequacies were motivated by gender bias.  But his due process claim was only partially dismissed. He successfully alleged--and will thus be allowed to continue to litigate--his claim that the university failed to provide him adequate notice of the claims against him prior to his initial meeting with the investigator who prepared a report in which she concluded he was responsible for rape (though it did dismiss his claim that notice was inadequate as to the hearing that occurred later).  The court dismissed his claim that the university violated his right to due process by failing to provide him an opportunity to present his side of the matter.  However, this opportunity occurred after the investigator prepared her report, so the court found "plausible" his claim that he should have had greater opportunity to participate in the process prior to that time. Sterrett v. Cowan, 2015 WL 470601 (E.D. Mich. Feb. 4, 2015).

• After a disciplinary hearing, the University of Cincinnati found the plaintiff, a male student, responsible for sexual assault and imposed sanctions.  The plaintiff sued, challenging the fact that university officials limited the evidence he was able to present at the hearing and did not allow him to record it. Because he sued in federal court before taking advantage of the opportunity to appeal the outcome of his disciplinary hearing to various university officials, the court dismissed his due process claim as premature. Similarly, the court dismissed his Title IX claim, which alleged that the university reached an “erroneous outcome” in his case due to gender bias. Even if the plaintiff was correct about the role of bias, the court refused to hold the university responsible for procedural errors that the plaintiff did not seek to correct through the appeal process that is in place for exactly that reason. Peloe v. University of Cincinnati, 2015 WL 728309 (S.D. Ohio Feb. 19, 2015).

• A male student was suspended for one semester for sexually harassing a female student, conduct that largely consisted of him pestering her to go out with him or have sex with him.  In seeking a preliminary injunction against the suspension, the plaintiff alleged that the university violated his First Amendment rights to free speech, but the court rejected this argument based on precedent that allows the regulation of sexually harassing speech. The court also rejected his Title IX argument was because he failed to allege any facts that could support a conclusion that gender bias played a role in the university's decision to sanction him. For example, there were no alleged comments by university officials conveying such bias, nor allegations that the university had a motive (such as impressing OCR) to impose unwarranted discipline on a male student. Marshall v. Ohio University, 2015 WL 1179955 (S.D. Ohio Mar. 19, 2015)

• A federal court in Ohio granted Miami University's motion to dismiss Title IX claims filed by a male student expelled for sexual assault because he did not sufficiently allege that the university's disciplinary proceedings were biased against him because of sex.  One aspect of his complaint alleged that a campus safety officer encouraged a (presumably exculpatory) witness not to testify, an allegation that the court admitted was "troubling" but still void of gender bias ("These facts pleaded against [the officer] do not suggest a gender bias against males so much as against students accused of sexual assault."). The court also refused to interpret allegations that the University had been publically criticized for failing to address sexual assault as an allegation that the University was biased against the plaintiff on the basis of sex. Sahm v. Miami University, 2015 WL 2406065 (S.D. Ohio May 20, 2015)

• The University of South Florida had sent notice via email (twice and with “high importance”) to a student who had been accused of sexual assault and requested his participation in the investigation and disciplinary process. The student deleted the emails without reading them because he did not recognize the name of the sender, resulting in his summary expulsion. The student then brought a due process and a Title IX claim against USF, both of which were dismissed. The court rejected his due process claim on the grounds that it was premature to sue the university for lack of due process without first going through all of the appeal procedures the university provides. The court also dismissed the student’s Title IX claim because he did not allege any intentional discrimination on the university’s part, only that its procedure for handing sexual assault has a disparate impact on male students, a claim not recognized under Title IX’s private right of action.  Though the court gave the plaintiff permission to amend his complaint to include allegations of intentional sex discrimination, it predicted that such efforts would be "futile." Doe v. University of South Florida Board of Trustees, 2015 WL 3453753 (M.D. Fla. May 29, 2015).

Rider College Softball Coach Files Lawsuit Challenging Dismissal

Patricia Carroll, head softball coach at Rider College since 1994, filed a lawsuit last week in the federal court in New Jersey, arguing that her employment contract was slated for non-renewal in retaliation for her complaints that Rider's women's programs received fewer resources than the men's. In particular, she alleges that her complaints targeted inequities in scholarship money and booster funding, as well as the size of coaching staff and quality of facilities like locker rooms.

Though Carroll has won three championships in the past, her record over the past three seasons is reportedly 26-127.  So it's possible that the college will claim that its decision was motivated by performance rather than retaliation. To win her case, Carroll will have to undermine this rationale and prove that it is pretext for retaliation, such as by proving that other coaches with similar records (and who have not spoken out about Title IX violations) are retained. 

Because the college's decision not to renew Carroll does not take effect until next summer, Carroll is in the unique position of challenging her termination while she is still employed. She is suing to keep her job, as well for unspecified compensatory and punitive damages.

Title IX Lawsuit Challenges Berkeley's Response to Sexual Assault

Three female plaintiffs, all former students, have sued the University of California at Berkeley alleging that in each of their cases, the University failed to respond adequately to their reports of having been sexually assaulted. 

The first plaintiff alleged that the the university's failure to communicate reporting procedures caused several months to go by before she was able to report that she had woken up to a man touching her after a university event.  Then, she says, the university shut her out of investigation and disciplined the offender with only probation.

The second plaintiff alleged that when she reported sexual misconduct of a visiting lecturer, the Title IX Coordinator admonished her for not clearly withholding consent, instead of investigating and disciplining the lecturer for groping her even though she had not actively granted consent.

The third plaintiff also alleges that she was shut out of the investigation the university conducted into her claim that she had been raped by a fellow-student acquaintance. Moreover, she challenges the fact that his suspension was only temporary (a year and a half) and that he will be allowed to return to campus -- notwithstanding the fact that rape kit evidence indicated that trauma had ensued.

The plaintiffs all claim that the university violated Title IX. in each of their cases.  Because their lawsuit seeks to hold Berkeley accountable for money damages, they must satisfy the "deliberate indifference" standard used by courts in such cases.  This standard can often be difficult to satisfy and not necessarily satisfied by allegations of inadequacies that would constitute violations of  the Department of Education's Dear Colleague Letter. 

Fifth Circuit Decision Flags Area of Uncertainty in Future Title IX Retaliation Cases

On Monday the Fifth Circuit Court of Appeals rejected the appeal of Anthony Minnis, the former women's tennis coach at Louisiana State, who had sued the university challenging his dismissal and other employment practices as racially discriminatory as well as retaliation for Title IX advocacy on behalf of his team.

Regarding the Title IX claim, Minnis's legal argument was that the appellate court should address his  retaliation claim in order to resolve a question of legal uncertainty regarding the application of Title VII standards to Title IX cases. Typically, when courts apply Title IX in the employment context, they are influenced by cases applying Title VII, the federal employment discrimination statute, which also prohibits discrimination on the basis of sex. Recently, in 2013, the Supreme Court ruled that Title VII retaliation plaintiffs must prove that retaliation was the "but for" cause of their termination or other adverse action.  In other words, they must show that the employer was solely motivated by retaliation, rather than by a "mixed motive" that includes retaliation among other reasons. Because employers' motives are frequently complicated and plausibly involve multiple factors, the Supreme Court's decision considerably narrowed the scope of Title VII's application to retaliation claim.

Minnis's lawsuit used Title IX, rather than Title VII, to advance his retaliation claim.  If his case had not been dismissed on summary judgment grounds, the lower court might have had to consider the question of whether Title IX continues to allow retaliation plaintiffs to prevail in mixed-motive cases, or whether the Supreme Court's rejection of mixed motive cases under Title VII extends to Title IX as well.  Minnis argued that the appellate court should have taken his appeal so that they could address that issue and provide clarity to lower court in its jurisdiction.  However, the lower court's dismissal of Minnis's retaliation claim did not turn on whether the university had a single or mixed motive.  Rather, the lower court ruled that Minnis failed to establish a prima facie case by demonstrating that he engaged in protected conduct. (Because both the men's and women's tennis coaches had advocated for an indoor facility, this could not even plausibly be a Title IX retaliation claim, according to the lower court.)  Since his case would not fall under Title IX to begin with, the court does not reach the legal question over whether mixed-motive arguments are still available to Title IX retaliation plaintiffs.

But the decision reminds us that this is an area of legal uncertainty that will eventually have to be addressed in future cases.    

Decision: Minnis v. Bd. of Supervisors of Louisiana State Univ., 2015 WL 3941846 (5th Cir. June 29, 2015).

Department of Justice Supports Transgender Student in Lawsuit Over Bathroom Use

Today the Department of Justice filed an brief on behalf of a transgender boy who sued his school district in Virginia after he was denied access to the boys' restroom.  The brief sets for the Department's position that Title IX requires schools to allow transgender individuals to use the restroom consistent with their gender identities.  A key section of the brief sets forth the agency's rationale:

“Under Title IX, discrimination based on a person's gender identity, a person's transgender status, or a person's nonconformity to sex stereotypes constitutes discrimination based on sex. The term 'sex' as it is used in Title IX is broad and encompasses gender identity, including transgender status. ...

“Prohibiting a student from accessing the restrooms that match his gender identity is prohibited sex discrimination under Title IX. There is a public interest in ensuring that all students, including transgender students, have the opportunity to learn in an environment free of sex discrimination."

This is not the first time the Department of Justice has taken up the cause of discrimination against transgender individuals.  Additionally, the Department of Education has signaled its interpretation of Title IX is similar as well.  Yet, courts have been reluctant to take this view, see, e.g.  Hopefully the push from DOJ in this case will help turn that tide.

Recent Law Review Articles Examine Title IX's Application to Sexual Assault, Transgender Rights

Today I read two recent law review articles that warrant mention on this blog.  The first article, by Lambda Legal attorney M. Dru Levasseur, examines a variety of legal contexts in which transgender rights are undermined by courts and other decisionmakers' tendency to distinguish "biological sex" from gender identity instead of viewing the latter as a constituent of the former.  In contrast, he notes recent examples in which the Department of Education has taken the position that sex discrimination encompasses discrimination on the basis of gender identity, such as in the enforcement of Title IX, a sex discrimination statute, to allow transgender students to use bathrooms according to their gender identities.  Levasseur challenges courts to follow suit.  By updating their thinking on the nature of etiology of sex and recognizing gender identity as a component of sex, they can properly interpret sex discrimination statutes (and other legal contexts that require a definition of "sex") to validate and protect trans identities.

In the second article, Boston University law professsor Katharine Silbaugh argues that in Title IX's application to campus sexual assault has been unnecessarily influenced by Title VII caselaw to adopt a "criminal justice model"-- one focused on punishment in individual cases -- rather than a "public health model" -- one focusing on community-wide prevention. She goes on to make the case that OCR's enforcement efforts should seek to motivate colleges to adopt robust preventive measures --  aimed at such targets as climate, relationships, and social norms -- rather than micromanage their post-assault response. This shift in focus, she argues, better utilizes the skills and talents of colleges and universities.  Moreover, a public health model is a better fit for Title IX's civil rights objective, since it aims to protect the ability of all students to partake fully in their educational experience without having that opportunity limited by sexual violence.

Articles cited:

M. Dru Levasseur, Gender Identity Defines Sex: Updating the Law to Reflect Modern Medical Science Is Key to Transgender Rights, 39 Vt. L. Rev. 943 (2015).

Katharine Silbaugh, Reactive to Proactive: Title IX's Unrealized Capacity to Prevent Sexual Assault, 95 B.U. L. Rev. 1049 (2015)

UCLA faces lawsuit for handling of graduate students' complaints

This week the internets were flooded with discussions and news and comments on Professor Tim Hunt's statements about women in labs. And though they certainly have their problems (which need addressing), the hard sciences alas are not the only fields in which women face a sexually hostile environment.

This week two history graduate students at UCLA filed a lawsuit against the school* and its trustees which states that the school did not properly address their respective complaints of sexual harassment and assault by one history faculty member. Both women were, in some way, discouraged from moving forward with the complaint and/or disciplinary hearings. There was an investigation of one of the women's complaints, but she alleges she was not apprised of how the situation was being handled. There was no investigation of the other.

We have seen more and more graduate students coming forward with experiences of harassment. These stories should be increasing the awareness that the situation of graduate students does not resemble that of either undergraduates or faculty members, though they have the duties/responsibilities of both. So when graduate students experience harassment and possible retaliation, administrators need to realize the unique position these students are in. One faculty member can have a huge influence on a graduate student's education and career. This does not mean that schools should take more seriously the complaints of sexual harassment and assault when they involve faculty and graduate students, but that there are different issues. This lawsuit may make that dynamic a little more clear.

* UCLA is already on the list of schools OCR is investigating.

Competition over ethics implies Saban

I wrote last week about the new SEC policy preventing the transfer of student athletes with serious misconduct issues to SEC schools. Though it passed with ease among SEC administrators, it is not without controversy.

One person raising some objections is Alabama football coach, Nick Saban. Saban is worried about the competitive advantage other conferences will receive because they do not have such policies. So athletes, again athletes who have been found responsible for sexual assault and domestic violence by their former schools, will get turned down because of their record of, again sexual assault and domestic violence, and then attend non-SEC schools. Remember, Saban is the recipient of such a player--Jonathan Taylor. Taylor was under investigation at Georgia for domestic violence when he transferred to Saban's squad. He has now been kicked off that team because of being arrested again for domestic violence.

Let's be clear--these are arrests. Public record arrests. We are not even talking about sketchy (Title IX violating) internal investigations within athletic departments. We are not even dealing with, in this situation, student conduct hearings and the privacy issues attached to those. The lack of compliance with Title IX regarding policies and procedures, as I said the other day, is part of the reason the SEC policy is only one step in addressing the problem of student athletes who commit sexual and domestic violence. But it's a step Saban does not want to make because he believes it might harm the SEC and its ability to compete with the other power five conferences.

In short, he is saying f&^* ethics and the safety of (mostly) women on campus--we need to win. He is upset that the SEC is hindering the way he operates his program, but framing it as just looking out for the best interest of the conference.

He is not the only concerned SEC coach. Also notable is that the coach who lost Taylor to Alabama, Georgia's Mark Richt, was also a little concerned about the new rule. He was slightly more tactful and used a paradigm of second chances rather than the "but what if we aren't as good without the rapist on our team" argument.

Why is this policy being passed now when campus sexual assault has always been a problem? Well because the general public is starting to realize that it's an epidemic. And while sports fans might  allow some questionable practices that result in perks to student-athletes and wins for our favorite teams, the ability to get away with rape and violence is not one of those, and it is increasingly difficult to ignore the issue.

If Nick Saban took a little more time to think about this he could have both gotten his concerns addressed (without looking like a privileged, ignorant jerk) and been a hero (well for reasons other than football). Because what he could have said was this: This rule exemplifies the ways in which the SEC is a leader both on and off the field and is addressing a serious issue facing college and university communities. But we should not be the only ones. I urge the other conferences and the NCAA to implement similar policies regarding transfer athletes so that we can guarantee the safety of our student body and maintain the integrity of our athletic programs.

But that's not what he said.

OCR Will Investigate Iowa Complaint

Last February we blogged about the complaint University of Iowa field hockey players filed against the university over the termination of their coach, Tracey Griesbaum. This week we learned that the Department of Education's Office for Civil Rights has decided to investigate the complaint and determine whether the university in fact discriminated against the players in violation of Title IX.

We believe this is the first time the government has ever considered a complaint about a coach's termination to be sex discrimination from the players' point of view. Title IX regulations require equal treatment between men's and women's programs in the aggregate, including the quality of coaching athletes receive as a component of that requirement. The players argue that when Iowa fired Griesbaum over complaints about her demanding coaching style, the university imparted a sexist double standard that deprived them of the opportunity to be challenged by a successful, demanding coach.  Importantly to the framing of this claim, male athletes at Iowa  are given that opportunity, as evidenced by the fact the university has never disciplined coaches of men's teams for being too hard on them. 

It will also be interesting to see whether OCR looks at the harmful message a university sends to female players who might be aspiring coaches when it fires a female coach over conduct that is tolerated and even encouraged from male coaches. Because female athletes could be discouraged from pursuing a lifelong relationship with college athletics in a way that male athletes are not, this is arguably another way in which firing a female coach is sex discrimination from the players' point of view.

Another female coach leaves Minnesota Duluth

The hits just keep on coming for University of Minnesota Duluth Athletics.

The women's basketball coach, Annette Wiles, who has compiled a winning record over seven seasons with the Bulldogs, has resigned her position citing the unhealthy work environment. She is the third female coach to leave this year. Hockey coach Shannon Miller was not brought back (her contract expired at the end of the academic year) allegedly because of financial reasons. She was told her salary was too high. The director of hockey operations--who is also the softball coach--was also let go. Though administrators say Jen Banford was only let go from her DOO position, not coaching, but this meant a renegotiated contract with a significant pay cut, so she resigned.

Wiles also left as she was attempting to negotiate a contract (an extension for the one set to expire this summer). A statement to the press from her lawyers, the same  ones who are representing Miller and Banford, states the athletic director Josh Berlo refused to discuss this with her.

The news of Wiles's departure was also accompanied by more information about the status of Miller's and Banford's legal actions against UMD. Complaints have been filed with the Equal Employment Commission and they are preparing for a lawsuit. It is not clear whether Wiles will join that lawsuit.

Considering the new SEC policy

The SEC announced a new policy this week that would prevent student-athletes with records of domestic violence and sexual assault from transferring to SEC schools (as athletes). It was a proposal made by Georgia and adopted fairly readily according to reports. Whether one particular incident (like Alabama's acceptance of a football player who was under investigation at Georgia for domestic violence at time of transfer and has allegedly re-offended) or just greater awareness of the issue of sexual assault and domestic violence inspired the new policy has not been made clear.

The exact wording of the policy is as follows: "a transfer student-athlete who has been subject to official university of athletics department disciplinary action at any time during enrollment at any previous collegiate institution (excluding limited discipline applied by a sports team or temporary disciplinary action during an investigation) due to serious misconduct (as defined herein) shall not be eligible for athletically-related financial aid, practice or competition at an SEC member institution."

In my recent research/writing/thinking, I have been looking at why athletics departments have not been affected by the increasing visibility of activism aimed at addressing campus sexual assault. In other words why have they, arguably, been relatively unscathed for not following correct policies and procedures when they learn that student athletes have been accused of sexual violence. Most colleges and universities accused of mishandling sexual assault reports do not truly fear the ultimate--and only--penalty the Office of Civil Rights can levy--loss of federal funds--because it has never happened. There are potential large financial penalties if students file lawsuits rather than or in addition to a complaint with OCR, as happened at University of Connecticut.

The biggest hit at the moment, however, is the one schools take to their reputation. As campus sexual assault becomes more visible because of activism, media coverage, survivor narratives, and investigations schools are receiving considerable negative attention. And schools do not want this.

The desire for reversing negative publicity does not seem to apply at the moment to athletics departments. They seem to be weathering the storm fairly well. Look at Florida State. Look at Colorado, who paid out a multi-million dollar settlement in the mid-00s. Look at Oregon currently under investigation and facing a lawsuit. Have their athletics departments suffered? Have people called for boycotts of games or stopped buying merchandise? No. Have schools reprimanded their athletics departments by imposing internal sanctions or firing administrators who fail to policy and procedure in these matters? Not that I have seen.

Actually, let's go back to Oregon. It provides an example of how the SEC policy, while a good one, would not work in this case because of a culture of secrecy and protection of student athletes. Oregon took as a transfer a player from Providence College who was kicked off that basketball team for alleged participation in a gang rape. But he was not formally punished or investigated by the college. There was nothing on his transcript. Oregon officials maintain that they did not know of his past. He was then kicked off the basketball team, along with two other players, after a student accused them of rape. Said player, Brandon Austin, has transferred to a junior college in Florida. They are aware of the accusations against him.

So the SEC policy, if it existed at this junior college or the conference to which it belongs, would have prevented Austin from transferring there for the purpose of playing basketball. But it would not have prevented the original transfer from Providence to Oregon.

In other words, this policy does not get at the whole problem. It is based on the premise that schools and their athletics departments are doing their jobs in reporting and investigating sexual assault and violence in the correct way. This is not universally true. We cannot know statistics, unfortunately, on this matter. Most of the evidence is anecdotal and we have to assume that the lawsuits that have emerged are a small percentage of actual mishandling based on what we know about underreporting and the harassment and dismissal of those who do initially report.

The SEC's policy does not mean there will be no more offenders accepted as student athletes at SEC schools. Look again at the exception in parentheses: "excluding limited discipline applied by a sports team." This is the type of discipline being doled out to accused student-athletes in an attempt to appease victims. It is a violation of Title IX if the act in question is sexual assault or harassment. It cannot be handled internally. This policy is a start at addressing this issue, but we need more done at the front end of this problem, including stronger punishments against offending athletics departments.

Complaint Against Northwestern Professor Does Not Pit Title IX Against Academic Freedom

Back in February, Northwestern professor Laura Kipnis wrote an essay in the Chronicle of Higher Education critical of (to borrow from her title) "sexual paranoia" on college campuses. One of the essay's main targets was what Kipnis describes as a lawsuit filed by a student against a professor charging that he had sexually assaulted her in the context of a dating relationship. Recently, Kipnis wrote a second essay (subscription required) detailing what happened to her in the aftermath of the first. Students reacted negatively to her first essay, and in addition to protesting its content, two graduate students also filed an internal complaint alleging that the essay was retaliation against the student who had filed the lawsuit and would deter other students from reporting sexual harassment against professors in the future. The focus of Kipnis's second essay was the obscure and lengthy process that the university used to investigate the complaint against her. Apparently, university officials were reluctant to reveal the charges against her, hired an outside law firm to conduct the investigation and adjudicate the complaint, buried information about the process in a labyrinth of web links, and took longer than the OCR-prescribed timeframe of 60 days to resolve the matter. In fact, at the time of Kipnis's second essay, the university had not yet reached a resolution of the case; though it has since found in Kipnis's favor and cleared her of all charges of wrongdoing.

Kipnis's essay has generated concern (see, e.g.) about the threat Title IX poses to professors' academic freedom. My view is that it is unfair to indict Title IX based on what happened to Kipnis. I think her criticism of the university's procedure for investigating the complaint against her is a reasonable one. Importantly, however, none of the ways in which the university obscured, outsourced, and prolonged the investigation process are requirements of Title IX. Northwestern could have dealt with the complaint against Kipnis in a more transparent, evenhanded, and efficient way without any risk of violating Title IX. Thus, there is no basis for predicting that universities motivated by Title IX compliance obligations would utilize similar procedures to evaluate charges against a professor stemming from an exercise of academic freedom.

Secondly, while I don't have access to the university's reasoning for dismissing the complaint against Kipnis, this outcome is entirely consistent with the law of retaliation more generally, and illustrates why it would be difficult for a student to ever prevail in a retaliation claim based on professor's written publication. Retaliation generally consists of adverse action targeting a person who engaged in protected conduct as punishment for that conduct. For words alone (i.e., without an associated tangible act) to constitute an adverse action against the person engaged in protected conduct, it would have to rise to the level of retaliatory harassment. Harassment requires the conduct that is severe or pervasive, and a single written essay, especially one that comments on a matter of public concern and public record, is neither. Moreover, the retaliation charges against Kipnis contained a mismatch between the person who had engaged in protected conduct (the student who filed the lawsuit against the professor) and the person(s) adversely affected by Kipnis's essay (i.e., the entire student body whose motivation to challenge harassment was arguably "chilled.").  For these reasons, there is little risk that professors would ever actually be found liable for retaliation based solely on the fact of a publication expressing academic freedom, and there is little grounds on which to generalize Title IX as a threat to that freedom.