Another Baylor Lawsuit Survives Motion to Dismiss

Last week a federal court in Texas ruled that Jasmin Hernandez's case against Baylor may proceed to the discovery phase of litigation, denying the university's effort to dismiss the case for insufficient pleading. The plaintiff alleged that she was sexually assaulted at a party by football player Tevin Elliott. Even though (she alleged) she reported the assault to various university officials, including the football coach Art Briles the university did not take any efforts to investigate or discipline Elliott. She also alleged that prior to her assault, another student had reported Tevin Elliott to the university's chief judicial officer for similar behavior, and that this student was told she was the sixth such student to do so. As such Hernandez claimed that Baylor was on notice of the risk posed by Elliott and was liable for the deliberate indifference that heightened the risk that she would be assaulted. Additionally, she alleged that Baylor was liable for deliberate indifference after she reported her assault, which contributed to her emotional harm.

Both of these claims were sufficiently alleged in the complaint, the court ruled.  However, the latter claim for post-reporting harm was barred by the statute of limitations because the events occurred more than two years ago.  Though the heightened risk claim was also based on events more than two years old, the plaintiff could not have have discovered the university's alleged concealment of sexual misconduct by football players and other students until 2016 when the report of an external investigation in Baylor's failings to respond to a pattern of sexual violence by football players. Until then, the court reasoned, the plaintiff could not have reasonably known that Baylor's alleged indifference had lead to her sexual assault, and thus the the statute of limitations did not begin to run until that time.

Hernandez v. Baylor Univ., No. 6:16-CV-69-RP, 2017 WL 1322262 (W.D. Tex. Apr. 7, 2017).

Two Key Ed Department Positions Filled This Week

This week we learned that Carlos G. Muñiz will be nominated to the position of general counsel to the Department of Education, and that Candice E. Jackson has been appointed "acting" Assistant Secretary for Civil Rights.

Muñiz once served as a deputy attorney general to Florida Governor Jeb Bush. Later, he entered private practice with the firm McGuire Woods. Notably, he represented Florida State when it was sued by a student challenging its handling of her report that she'd been raped by football player Jameis Winston. (The case, which we blogged about often, settled for $950,000.)  Because the general counsel will advise OCR on policy related to sexual assault enforcement, I was particularly interested to read the comments of John Clune, who represented the plaintiff, Winston's accuser. Clune told the New York Times that Muñiz is "approachable" and that he listened and cared about the plaintiff's positions. However, he also noted that Muñiz was critical of the investigation the Office for Civil Rights is conducting into Florida State's handling of the case. This is interesting, since the facts alleged to OCR were pretty egregious -- essentially, that FSU officials initially concealed the accusation and failed to conduct any kind of disciplinary proceeding in order to protect their star quarterback. Even a lawyer who must dispute the truth of those facts could still recognize that allegations along those lines are worthy of investigation. So Muñiz's criticism of OCR, as relayed by Clune, could indicate his belief that OCR's role in sexual assault matters (and other civil rights issues?) should be very limited. If that's true, he would likely use his position to press for changes to OCR's current policy of insisting educational institutions engage in prompt and equitable response to charges of sexual assault.

Jackson, an attorney in private practice, also created the "Their Lives" foundation, to "give a voice to victims of those who abuse power, particularly when that abuser is another woman." Despite the general-sounding nature of this description, the foundation's website seems devoted to giving a voice to Kathy Shelton's claims that she was the victim of abuse of power by Hillary Clinton when Clinton was appointed by the court system in Arkansas to represent Shelton's rapist. Does Jackson's public record of support and concern for a rape victim mean she will maintain or strengthen OCR's policies regarding institutional response to campus sexual assault? Or are her politics more anti-Clinton than anti-rape? Given that Jackson is only known as a critic of the Clintons, her appointment by Clinton's opponent could appear to some as one motivated by political patronage rather than merit. However, Jackson's appointment to "acting" Assistant Secretary for Civil Rights avoids scrutiny on this issue, as acting officials do not need to be approved by the Senate. Notably, however, federal law limits her term of service for no more than 300 days (technically, 210 days from 90 days after the President assumes office, i.e., until approximately November 16). It also prohibits the acting official from simultaneously being the nominee for the permanent position.

Full Seventh Circuit Rules Sex Discrimination Includes Sexual Orientation Discrimination

Yesterday, the Seventh Circuit Court of Appeals ruled that discrimination on the basis of sexual orientation is a form of sex discrimination. The case that gave rise to the ruling involved an openly-lesbian adjunct professor, Kim Hively, who taught at Ivy Tech Community College in South Bend, Indiana.  She alleged that Ivy Tech rejected her applications for various full-time teaching positions and eventually terminated her adjunct status due to bias against her sexual orientation. She filed suit under Title VII of the Civil Rights Act of 1964, the federal law that prohibits discrimination in employment on the basis of sex and other protected characteristics, but which does not provide express protection from discrimination due to sexual orientation. For this reason, a federal district court in Indiana dismissed her case. When she appealed to the Seventh Circuit, the three-judge panel that first heard her case agreed with the district court. But, the appellate court agreed to re-hear the case "en banc" with all judges participating. The full court's decision, which came out yesterday, reinstated Hivey's case and will allow her now to try to prove to the lower court that sexual orientation discrimination did in fact occur.

Even though Hively's case continues to be litigated, it has cleared a huge hurdle and in so doing, generated a significant appellate court decision on the relationship between sex discrimination and sexual orientation discrimination. Sex discrimination is generally evident in the comparison between how an employer treats an employee of one sex versus how that employer treats another otherwise-identical employee of the other sex. Using this paradigm, the Seventh Circuit reasoned that when an employer treats positively a male employee who has a female partner (or who is attracted to women), but treats adversely a female employee who has a female partner (or who is attracted to women), that is discrimination on the basis of the employee's sex.  Though the discrimination targets the fact that the victim of such discrimination is partnered with or attracted to a person of the same sex, i.e., their homosexual orientation, such discrimination "does not exist without taking the victim's... sex...into account."  We already know that sex discrimination works in this relational way (discriminating on the basis of some characteristic, like the victim's attraction to women, in relation to the victim's sex), because the Supreme Court endorsed that way of thinking about sex discrimination when it confirmed that it encompassed gender stereotyping.  An employer's adverse action towards a female employee who exhibits a certain characteristic or appearance, but not a male employee who does the same is discrimination "that does not exist without taking the victim's sex into account." Additionally, the court considered the Supreme Court's precedent in Loving v. Virginia, which ruled that a state law banning interracial marriage was race discrimination prohibited under the Constitution. If discrimination based on the race one is oriented to is race discrimination, then discrimination based on the sex one is oriented to is sex discrimination.

The Seventh Circuit decision is the first appellate court decision to employ this reasoning (for a lower court example, see Videckis v. Pepperdine, a Title IX case). Other appellate courts in the (sometimes distant) past have ruled against the gay or lesbian plaintiff on the grounds that Congress could have, but did not, include sexual orientation as a Title VII protected characteristic. The Seventh Circuit's departure from this reasoning sets up a circuit split that gives the Supreme Court a reason to weigh in should it so choose.  Although the court's decision interprets the sex discrimination provision in Title VII, it and any Supreme Court decision that affirms it, should there be one, will no doubt be influential in the Title IX context as well, since courts routinely refer to definitions of sex discrimination from Title VII cases when analyzing what it means under Title IX.

I also think this decision, though about sexual orientation, will help support the argument that sex discrimination includes discrimination on the basis of transgender status, since transgender discrimination also targets a characteristic relative to the person's sex. Discrimination against someone because their gender identity is not consonant with their birth-assigned sex is discrimination "that does not exist without taking the victim's sex into account." I would expect the Hively decision to be cited favorably by litigants challenging exclusion of transgender students and employees from gender-consonant restrooms and other manners of discrimination.

UND and USA Hockey

The US Women's National Hockey Team is currently playing in the World Championships in Michigan. (And the team has made it through to the semi-finals.) Prepared to boycott this tournament over gross inequities in pay and treatment between them and the men's team, there was a (nearly) 11th hour resolution to the situation. (The financial terms have not been confirmed by either the team or USA Hockey but they include monthly stipends--year-round--instead of just during the Olympic year; that previous agreement amounted to a total of $6,000 over the course of four years from USA Hockey to national team members.)

It was a moment of triumph for women's sports. It was a highlight of my week--and others I know felt similarly. It was a show of solidarity and steadfastness. USA Hockey, with whom the national team had been in negotiations for over a year, initially poo-pooed the threat of the boycott and sought out other athletes--first from Division I schools, then II, III and then on to high school and rec league teams. And they never found enough players to field a team-- a team that would have been (no offense to my rec league friends) quite substandard.

The men's team also backed the women, suggesting that if USA Hockey did not prevent the boycott, they too would  boycott their upcoming world championships.

In addition, the women effectively utilized social media platforms and the mainstream media took notice. The story was widely covered, including on ESPN!

Sadly, with the ink on the contracts barely dried*, other news came out from the world of women's hockey. The University of North Dakota is cutting its DI women's team. This is a team that feeds the national teams of the US and other countries.A team that produced two of the US national team's current stars--sisters Monique and Jocelyne Lamoureux (who transferred from Minnesota).

This does not appear to be a Title IX issue though this very confusing article said Title IX was considered and something about funneling the budget from women's hockey to both men's and women's sports. Running the numbers--last year's reported figures--and taking into account that two teams were cut last year and, along with women's ice hockey, men's and women's swimming will be cut at the end of the year, they appear to be in compliance with participation opportunities.

In other words, there is little to be done. Because, unlike the US women's national team, they do not--like most intercollegiate women's hockey teams--have widespread support. And part of the reason support for the team might be low is because of institutional priorities. The money saved from the five sports cut in two years will be going to the school's football program--no matter what UND says. Yes, state budget cuts are likely coming and the cuts are a response. But cutting these teams to address those budgets are a choice--an institutional choice--that allows the university to maintain the financial support to football-- a program that recently (2012) joined the "big time" Big Sky Conference--a move that requires a lot of capital.

I think USA Hockey was genuinely surprised by the support the national team rallied. They pushed back hard against a team that represents them and represents them well (despite the lack of support these women receive from the organization). In other words, USA Hockey was forced  to bow to the pressure of popular opinion and a culture of community within the world of hockey.

I don't know if UND can garner that support. The Lamoureux twins have made public statements about the cut and sent a letter to the university president asking for the team to be reinstated. They have said will use similar tactics employed by the national team in its campaign. And maybe it will work.

But I had hoped that the "mere" fact that this is a highly successful team that sends its players on to the Olympics would have been enough for the administration to put it in the keep column. That they would see being the only intercollegiate women's hockey program in the state as a responsibility. That these accomplishments and status would be a source of pride and perhaps even marketing for the school.

But maybe I should not be too surprised that a university which put its own athletic teams--including football--in jeopardy by continually defying and fighting the NCAA's ban on Native American mascots, does not know how to act in its own best interests, let alone ethically.


* it seems as good a time as any to trot out this cliche.

Title IX Dress Code Case Survives Motion to Dismiss

We often read about school dress code controversies, like students objecting to traditions that sort students by sex into different color graduation robes, or imposing a gender dress code on prom attire or yearbook photos. I've always thought that issues like these were ripe for Title IX challenge, since this is clearly treating students differently on the basis of sex in the absence of a statutory or regulatory exception. Litigation challenging these gendered dress codes, however, is rare. I think the reason is that is that high profile cases of public school dress codes are limited to special occasions (prom, senior pictures, cap and gown) that target students who are on the verge of graduation, and therefore no longer having standing or motivation to challenge the policy. Private schools are more likely to have gendered dress codes that govern students' day to day attire, but these schools are less likely to be subject to Title IX because many if not most private secondary schools don't receive federal education funding.

Recently, however, three students, via their parents, sued a charter school in North Carolina, challenging its policy that requires girls to wear skirts, jumpers and prohibits them from wearing shorts or pants. They argue that the policy "subjects them to archaic sex stereotypes about what constitutes appropriate behavior and conduct for girls, reinforcing the notion that girls, but not boys, must dress and behave modestly, that they are less physically active than boys and that they should behave and dress in a manner that is otherwise traditionally considered appropriately feminine." 

The plaintiffs claim that because the charter school is a statutory defined public school, its gender-based dress code violates the U.S. Constitution.  The school moved to dismiss this claim, arguing that the students knew about the dress code when they voluntarily enrolled at the charter school. However, the court pointed out, there is no doctrine of waiver when it comes to constitutional rights. The plaintiffs will thus be able to continue to press their argument that the dress code is rooted in generalizations and stereotypes and thus impermissible under the standard of heightened scrutiny articulated in U.S. v. Virginia. 

Additionally, the plaintiffs' Title IX claim survived the school's motion to dismiss. The plaintiffs properly alleged in their complaint that the school receives federal funding, that the policy discriminates by sex, and that the plaintiffs are harmed by the policy. In support of its motion to dismiss, the school argued that in 1982, the Department of Education repealed a Title IX regulatory provision that prohibited gendered dress codes. The school argued that the repeal constitutes evidence of the Department of Education's position that gendered dress codes are, therefore, permissible. However, while courts generally defer to agencies regulations that fill in gaps and details of broadly-worded statutes, this court understandably hesitated to defer to the school's argued inference that repealing the prohibition constituted permission for gendered dress codes. Title IX, notably, is a blanket ban on sex discrimination except where statutory and regulatory exceptions permit. Given the statute's structure, I don't think that a court is obligated to infer that the agency's repeal of an earlier provision about dress code is tantamount to creating an exception.

The court also noted that the USDA, a federal agency which also distributes federal funds to educational institutions in the form of a school lunch subsidies, also has Title IX regulations, which do in fact prohibit “discriminat[ing] against any person in the application of any rules of appearance.”  The court reasoned in its decision on the motion to dismiss that the case had not yet produced enough of a record for it to determine whether the USDA regulations were applicable and warranting judicial deference. The court appears willing to eventually decide how both the USDA and DoE regulations factor in to judicial interpretation of Title IX on the question of gendered dress codes, but it wasn't ready to do so early in the litigation. When the court eventually does so, however, the case could send a message to schools that this and other manners of gendered dress codes -- including the more commonly encountered policies governing prom, yearbook, and graduation ceremony -- are unlawful.

Decision: Peltier et al. v. Charter Day School, No. 7:16-CV-30-H, 2017 WL 1194460 (E.D.N.C. Mar. 30, 2017).

Title IX Extends to Rapes at Fraternity, Court Rules

A federal court in Kansas decided earlier this month that Kansas State University potentially violated Title IX when it failed to investigate two students' reports of having been raped while attending parties at off-campus fraternity houses. The university argued in support of its motion to dismiss two plaintiffs' separate lawsuits that the fraternity house was not a "program or activity" of the university to which Title IX applies. But the court disagreed, distinguishing a fraternity house from other non-university housing or settings on the basis of the "substantial control" the university exhibits over the fraternity. In particular, the university regulates fraternities' conduct and authorizes its parties. In fact, in this case, the university used one of the plaintiff's report of rape as grounds to penalize the fraternity for alcohol violations. Other indicia of the nexus of control include the university-hired staff members who provide service and support to fraternities and sororities, and the university's recognition of fraternities and sororities on its website as student organizations. Notably, the court reached its decision that Title IX extends to sexual misconduct taking place at off-campus fraternity houses without extending any deference to OCR's 2011 Dear Colleague Letter, which also interprets Title IX in similar fashion. So even if OCR changes or withdraws the Dear Colleague Letter, such potential future changes in OCR policy will not affect this aspect of the ruling.

These decisions are only preliminary ones that allow the cases to proceed to the discovery phase of litigation. The plaintiffs will still have to prove that the university had notice of their rapes and responded with deliberate indifference. However, it seems undisputed that each notified the university and the university did not respond at all. Maybe the university will try to appeal the lower court's decisions not to dismiss, but otherwise my prediction is that the parties settle.

The two decisions are:

Weckhorst v. Kansas State Univ., No. 16-CV-2255-JAR-GEB, 2017 WL 980456 (D. Kan. Mar. 14, 2017).

Farmer v. Kansas State Univ., No. 16-CV-2256-JAR-GEB, 2017 WL 980460 (D. Kan. Mar. 14, 2017)

OCR Continues to Open and Resolve Investigations into Institutions' Sexual Harassment and Sexual Assault Response

Whether and how the new presidential administration will alter the Department of Education's existing policies interpreting Title IX's application to sexual harassment and sexual assault remains to be seen.So far, however, there has been no discernible change in the agency's enforcement approach. Since the inauguration on January 20, the agency has continued to open new investigations -- a total of 13 according to the Chronicle of Higher Education's Title IX Tracker -- and has concluded several others that began under the prior administration by issuing findings and resolution  agreements that are similar to those we've seen in recent years.

Most recently, the Office for Civil Rights announced last week that it resolved Title IX violations by Whittenburg University in Ohio. The agency's investigation had been triggered by two complaints, filed in 2011 and 2013 respectively.  In addition to finding flaws with the university's written policies, it also determined that the university violated Title IX requirements in the way that it handled specific students' cases. For instance, it found the university officials told the family of one student who had reported being sexually assaulted that they would suspend the university's disciplinary process if the family pressed criminal charges. They also included information about the student's prior, unrelated sexual history in its investigative report that was distributed to the hearing panel.  In another case, the university's investigation was unreasonably delayed and the student who reported having been raped was not offered interim measures such as academic accommodations or counseling.  Failure to offer interim measures was also a deficiency in yet another case, one that OCR also criticized for having been insufficiently investigated.

Earlier, on March 9, the agency announced a resolution with Palo Alto Unified School District after finding violations of Title IX's requirement that educational institutions respond promptly and equitably to reports of sexual harassment and sexual violence. In one example, an assistant principal in the district received 25 reports from staff and faculty about sexually harassing behavior by the now-former principal, as well as a report that the principal had engaged in unwelcome physical contact with students. These reports accumulated for three years before the assistant principal finally addressed them with the Title IX coordinator. Though the district investigated and responded at that point, it treated the matter only as a personnel issue and did not investigate with Title IX compliance or obligations in mind. Another time, the school district failed to conduct its own investigation of  a student's report of having been sexually assaulted by a fellow student off-campus (though it did assist the student in filing a police report and offered other support). Nor did the district investigate the subsequent sexual harassment that the student reported she was subjected to for having reported the initial assault. 

Prior to that, on February 16, the University of Alaska agreed to revisit 23 cases of reported sexual harassment or assault that the university failed to adequately address, according to OCR findings. In some of these cases, the university failed entirely to conduct an investigation, such as a case in which faculty members learned that one of their students had been accused of sexually harassing middle school students at the site of his student teaching placement.  Even when the student was arrested for similar misconduct, the university continued its inaction, apparently because no university students had been victims. Other examples of the university's failure to investigate included a case in which a student reported a professor's sexual harassment, and where a student reported being assaulted in a university residential building by a non-student.  Besides failing to investigate, unreasonable delay was another frequent problem cited by OCR.  On the Fairbanks campus, the average investigation in 2013-14 lasted 122 days and the longest was 567 -- far longer than the 60-day timeframe that should normally occur.  At Anchorage, the longest was 403 and average of 97.  OCR's investigation also cited cases where the university failed to prevent retaliation, failed to provide the complainant with notice of the outcome, failed to provide complainants with interim measures, and other problems. 

All three resolution agreements imposed familiar requirements on the educational institution in question: assessing past reports of sexual harassment and sexual violence to determine whether the institution's response satisfied Title IX requirements; correcting problems where possible; revising policies and procedures to bring them into compliance; and improving training opportunities for relevant staff.  Alaska's agreement also included requirements to assess the campus climate, conduct informational sessions with students and otherwise improve the dissemination of information about the process for addressing sexual harassment and sexual assault, improve coordination with local enforcement, and other requirements. 

Equal Protection Likely to Ensure Transgender Student's Bathroom Rights, Court Rules.

Last month a federal judge in Pennsylvania granted a preliminary injunction to a trio of three transgender students who sued to stop the Pine-Richland school district from enforcing a new policy that would have banned them from the bathrooms at the high school that correspond to their respective gender identities. The decision is notable because in its analysis of the plaintiffs' likely success on the merits (the judge's foremost question when deciding to issue a preliminary injunction) the court determined that the school district's policy violated their right to Equal Protection under the Constitution. The court determined that the plaintiffs' claim warranted intermediate scrutiny because transgender people fit the criteria by which courts have extended intermediate scrutiny to other groups -- such as having historically been vulnerable to discrimination, being identifiable by immutable characteristics, and constituting a minority lacking political power. This aspect of the court's reasoning is groundbreaking. Other courts have applied intermediate scrutiny in transgender discrimination cases, but only to the extent that such discrimination overlaps with sex discrimination. Here, the court predicts that discrimination based on one's transgender status itself warrants intermediate scrutiny.

If this reasoning takes hold, public schools and employers (as the Constitution only applied to government action) will have a much more difficult time enforcing bathroom bans. This is because the consequence of intermediate scrutiny is that the defendant, here the school district, must demonstrate persuasive (as opposed to merely rational) reasons for treating transgender students differently from others. The school district could not satisfy this requirement by speculating that permitting gender-consonant bathroom use by transgender students would lead to non-transgender students causing disruption in bathrooms designated for the opposite sex, which is what the school board claimed to fear. The fact that the three students in this case used the bathrooms that corresponded to their gender identities prior to the ban's enactment without causing any such problems negated the argument that such a justification was persuasive. Nor was the school board's privacy rationale persuasive, since the presence of bathroom stalls already ensured the privacy of all users. Along these lines, the court also rejected the school district's argument that a non-transgender bathroom user might decide to change clothes inside the bathroom but outside of a stall, risking an invasion of privacy should they encounter a transgender person, since the school could not produce any evidence that students used the bathroom for such a purpose. It thus concluded that when reaching the merits of the case the court would likely find in favor of the plaintiffs, thus warranting a preliminary injunction against the school district's policy while litigation is pending.

However, the court did not determine that the plaintiffs would likely succeed on their simultaneous Title IX claim.  Unlike the Equal Protection Clause, which is flexible in the discrimination that it covers, Title IX only prohibits discrimination because of sex. Though some courts have found that Title IX covers a transgender student's right to use the bathroom that matches their gender identity, these decisions deferred to the now-withdrawn interpretation of the previous administration's Department of Education. The court determined there was too much uncertainty in this matter to satisfy the requirement of "likely" success on the merits. This part of the decision did not affect the ruling's bottom line, however, since the court already determined that the plaintiffs were likely to succeed on Equal Protection grounds.

Court Denies Baylor's Motion to Dismiss

A key preliminary ruling came this week in one of the several lawsuits against Baylor University that argue its mishandling of reported sexual assaults violates Title IX.  This lawsuit was filed by ten anonymous plaintiffs who allege having been sexual assaulted by fellow students (including, in one case, a member of the football team) between 2004 and 2016, while each was a student at the time. Each of the plaintiffs allege that they reported her sexual assault to various appropriate campus officials, but that the university responded inadequately by failing to investigate and discipline the alleged offender and failing to address the effects of assault through with academic, counseling, and other accommodations. In addition to arguing that the university's indifferent response to the their own report caused them psychological and economic damages that are subject to remedy under Title IX (so-called "post-reporting claims"), they also allege that the university's systematic failure to address sexual assault more generally increased their risks of being assaulted in the first place (so-called "heightened risk claims").

The judge first decided that the plaintiffs' post-reporting claims adequately alleged the required elements of claim for money damages under Title IX, mainly, notice to an appropriate person and the institution's deliberately indifferent response. Baylor argued that the plaintiffs' allegations about the institution's response cited violations of the Department of Education's Dear Colleague Letter and argued, correctly, that such violations do not automatically constitute deliberate indifference. However, the court decided that the plaintiffs had still adequately alleged deliberate indifference, pointing out that violations of the DCL should at least be a factor in the analysis of whether the responses were, overall, indifferent. The court also agreed with the plaintiffs that they were not required to allege that the university's indifferent respond lead to further sexual harassment or assault, only that it heightened the risk thereof.  However, four of the ten plaintiffs' claims for harm arising from the university's failure to respond to their reports are outside the two-year statute of limitations period that applies to this case. So only the post-reporting claims of the other six will move forward.

Next, the judge reasoned that the heightened risk claims were also adequately alleged. The plaintiffs alleged that the university's conduct in the face of widespread sexual assault constituted an intentionally discriminatory policy of exposing students to a heightened risk of sexual assault. Such conduct included systematically misinforming students of their rights, failing to investigate, discouraging reporting, and falsely reporting to the government that no sexual assaults occurred. The court reasoned that because they were alleging an intentional policy, the requirement to allege deliberate indifference did not apply.  The judge also determined that all ten of the heightened risk claims can proceed, even those based on alleged sexual assaults that took place more than two years ago, because only recently did the plaintiffs have access to all the information they needed to allege the kind of pattern of repeated misconduct that could amount to an intentionally discriminatory policy. In fact, as some legal experts have already pointed out, the judge has effectively set a 2018 deadline for other potential lawsuits by victims of other past sexual assaults. It will be interesting to see if this increases further still the number of lawsuits against Baylor. It also makes it less likely that Baylor will succeed in getting the other, similar lawsuits dismissed.

Supreme Court Cancels Hearing in Transgender Bathroom Case

Today the Supreme Court announced that it would not hear oral arguments in Gloucester County School Board v. G.G., the case asserting a transgender student's right under Title IX to use the bathroom that matches his gender identity, as it had been schedule to do later this month. Instead, the Court decided to vacate the Fourth Circuit Court of Appeals opinion that had been appealed to the Court and order a rehearing in the case. The Fourth Circuit court had earlier held that the plaintiff in the case, high school student Gavin Grimm, had the right to use the boys' bathroom at his high school.  However, the Fourth Circuit decision deferred to the Obama administration's interpretation of Title IX in reaching that result. Now that the current administration has withdrawn that guidance, the deference argument is moot, and it is up to the appellate court to decide for itself whether Title IX supports the right that Gavin Grimm claims. Whatever the Fourth Circuit does decides could eventually be appealed again to the Supreme Court, but for now, the battlefield of this case has shifted from D.C. to Richmond.

Besides postponing an eventual Supreme Court showdown over transgender rights, today's move by the Supreme Court cancels another one over the more general question of whether courts should defer to guidance documents issued by government agencies -- though this results may have been ordained (and some might suggest, orchestrated) by the administration's decision to withdraw the guidance in the first place. While many have criticized the former administration's tendency to issue clarifying guidance documents rather than create new rules, it may be that current administration plans to do rely on a similar strategy at least as often. In any case, the president benefits from the fact that doctrine of judicial deference to such interpretations remains in tact.

Baylor & culture

As investigators from the Office of Civil Rights prepare for a trip to Waco, Texas to investigate Baylor University, employees of the school continue to make headlines for making very ill-advised comments. 

Kim Mulkey, the women's basketball coach, verbalized the frustration many at Baylor have over the way their school is being portrayed nationally (i.e., as a bad, unsafe place for women; a culture that protects athletics and athletes at all costs, including the safety of the student body generally). At least that is the excuse people have been providing for her since her on-court, post-game comments last weekend during which she said: “If somebody is around you and they ever say, ‘I will never send my daughter to Baylor,’ you should knock them right in the face.” In the actual post-game conference she said about the scandal,  " [I am] tired of hearing about it" and to that people should "move on, find another story to write."

Let's problematically put aside for a moment the violence of her statement and reflect on the message.

I don't know if Mulkey has lost recruits because of the scandal; women who said they didn't feel safe attending Baylor. But it's possible that Mulkey is simply sticking up for her school.

Regardless, she is sending the message that not only is everything alright at Baylor--everything is great--because Baylor is "the damn best school in America!" This is the ultra-nationalism of school pride. It is ignoring the problems Baylor so clearly has and refuses to acknowledge. In that moment (and in subsequent moments I will turn to next) she is contributing to the culture she--and many, many others--says does not exist at Baylor.

In doing so she 1) encourages a violent response (see again ultra-nationalism) and 2) erases the experiences of the women who were raped at Baylor.

Sunday (a day after mistakes were made): Apologies were issued. Mulkey does an interview with ESPNW writer Mechelle Voepel in which she says the comment about punching people was a "poor choice of words." What she really meant, she explains, was that people should be firm with those who are speaking badly of Baylor. She has interpreted the rumors that parents would not send their daughters to Baylor as judgements on the women currently attending BU. The sentiments behind those alleged rumors are more aimed at the safety of future college students. There is no implication that the women who choose be there now are misguided.

She said she takes seriously the situations of the women who were assaulted and that victim should always be helped. She said she would never support anybody who denied help to victims. But she added that she does not "think that everybody at Baylor should be put under an umbrella as all being a part of the things that happened. I can't fathom anybody not helping someone who is a victim of that type of crime. I don't condone it. My words [Saturday] did not express exactly what I was trying to say."

It remains unclear what exactly she was saying. But I will offer an interpretation of the initial comments and apology: Baylor is awesome. Don't let anyone tell you otherwise. But don't hit them as you tell them that. My daughter went here and she was fine. Everything is fine. Yea, maybe some bad things happened to a few women, but not everyone here is responsible for that so please stop asking me questions about it and let me coach basketball.

Mulkey added insult to injury in the wake of the apology. In post-game comments just a day later she refused to answer questions about her comments. She just kept referring people to the Voepel article.

Mulkey is clearly a part of the Baylor culture that has created this scandal. She may not have directly refused help to a victim, but her denial of the realities on the campus she is trying to bring young women to is part of the culture that allowed those actions to occur. There will be no change at Baylor until people there acknowledge the problems that existed, the problems that persist, and that major changes need to be implemented--including training your employees on what to say about the scandal.

Disciplined-Student Litigation Roundup

Here is a summary of some recent judicial decisions in cases brought by students who were disciplined for sexual assault.

1. Colorado State University-Pueblo.  A federal magistrate rejected the university's motion to dismiss a case filed by a student who alleged that he was suspended for sexual assault in a biased and erroneous disciplinary proceeding conducted by university officials. The magistrate agreed that the plaintiff's allegations could support liability under Title IX if they eventually prove true. The complaint's allegations that university officials ignored exculpatory evidence, including statements by the complainant that their sexual encounter was consensual, evidence suggesting that the complainant and the respondent had consensual contact after the alleged assault, and evidence that could have indicated complainant's motive in filing the complaint was to conceal and avoid being punished for a prohibited relationship (she was a student in the athletic training program and he was a member of the football team).  The magistrate acknowledged that ignoring such  evidence indicates bias, but not necessarily gender bias which is required for institutional liability under Title IX.  However, the complaint's additional allegations about the investigator's gender bias, particularly, bias about football players' propensity to rape, could if proven satisfy that requirement, the magistrate determined. Importantly, another aspect of this decision dismissed the plaintiff's direct challenge to the Department of Education's Dear Colleague Letter.  Here, the magistrate reasoned that the plaintiff lacked standing to challenge the DCL because it did not cause the injuries that he alleges.

2.  Amherst College. Title IX and breach of contract claims against Amherst College filed by a student expelled for sexual assault survived the college's motion to dismiss. Like the case described above, the plaintiff here also alleges that the disciplinary proceeding failed to take into account evidence that would have shown consent, including some text messages sent by the complainant immediately following her their sexual encounter in which she describes herself as the initiator of sexual activity. The court determined that the plaintiff satisfactorily alleged that this and other procedural errors were motivated by bias by including claims that his accuser was known by the college to be part of a "student-led movement" pressuring the college to change the way it handles sexual assault complaints, and that this pressure motivated the college to make procedural errors in the plaintiff's case in order to expel a male student for sexual assault. In addition, the plaintiff's selective enforcement claim also survived because the plaintiff alleged that male and female students were treated differently by the disciplinary process.  The college allegedly failed to encourage him to file a complaint against her when they discovered the text messages suggesting she may have initiated sexual activity with Doe while he was “blacked out,” and thus incapable of consenting, but on the hand, encouraged her to file a complaint against him upon discovery of her belief that she was assaulted by him. Notably, the plaintiff's complaint was one of the few I've seen that alleged a contemporaneous claim of race discrimination in the pattern of enforcement against black men. However, this claim was dismissed as it was not supported by sufficiently specific allegations.

3. St. Thomas University. In contrast to the two cases above, a federal court in Minnesota did grant St. Thomas University's motion to dismiss a Title IX claim alleging gender bias and mishandling of a sexual assault complaint. Here, the plaintiff's only support for his allegation that procedural errors resulted from gender bias was "pressure from the federal government to punish male students accused of sexual assault." The court rejected the sufficiency of this allegation, noting the absence of "targetted stress" imposed by the government on the university, that would have caused it to engage in unfavorable treatment of male students accused of sexual assault. However, this decision notably denied the university's motion to dismiss the plaintiff's claim of negligence (though the court was skeptical that the factual record would provide evidence necessary for liability on this claim).

4. San Diego State University.  While a Title IX claim was not at issue in this case, a plaintiff prevailed against San Diego State on grounds that the university's failure to provide him with an "adult adviser" constituted procedural unfairness in violation of the state administrative law. In contrast to the plaintiff, who was required to speak for himself in the hearing, the court noted that the complainant received the assistance and advocacy of the university official who had initially investigated the case. The court made clear that it is not requiring universities to furnish respondents with a lawyer, but that respondent needed some kind of adult advocate, like a faculty member, to level the playing field.  Further litigation is required to determine if the plaintiff, who had been expelled, must be reinstated.

More on the Rescission of OCR's Transgender Guidance

Following up on Kris's post from yesterday about the rescission of OCR's prior clarification about Title IX's application to transgender students, I wanted to contribute some additional points. First, in light of the existing injunction against the application of the guidance to "intimate spaces" like bathrooms and locker rooms, rescinding the guidance highlights the Department's lack of support for transgender students' rights and safety even outside of that context.  It is saying, essentially, that it will turn a blind eye to students who might be rejected or expelled from college because of their transgender status, and that it doesn't care if school district officials ignores bullying and harassment of transgender students. This is a harmful position for the federal government to take, especially in light of the fact that fewer than 20 states provide protection for transgender students facing harassment and discrimination.

That said, I need to emphasize that Title IX's dual enforcement mechanism give victims of sex discrimination two choices to assert their rights -- to complain to the Department of Education and/or to file a lawsuit.  Therefore, it is still possible for the courts to interpret Title IX to protect transgender students rights and to subject school districts/universities to liability for violating those rights.  This would not require an extreme or unusual interpretation of the law in most cases, as evidenced by numerous courts that have found that the the sex discrimination provision of Title VII protects transgender employees and job applicants who experience some forms of employment discrimination.  Even in the most challenging context, that of sex-segregated spaces like bathrooms, courts are capable of reading sex discrimination to mean discrimination based on transgender identity, which is an evaluation that takes sex into account, in that it considers of one's gender identity relative to one's (natal) sex.  Lawyers have their work cut out for them, but this is definitely not "game over" for transgender rights and Title IX.

Transgender protections to be eliminated

The rollbacks are beginning. It was--unfortunately--not very surprising to read that the current administration will not uphold the clarification which grants transgender students protection under Title IX.

Also unsurprising is that the meaning of this announcement is unclear. The current president stated, through his press secretary, that use of bathrooms and locker rooms in public schools should be an issue decided by the states. Because apparently the previous regs were too confusing and too hard to implement.

 However, there is some indication that the anti-bullying protections will remain. This would theoretically protect trans and gender non-conforming students; but not allow them to use the bathroom of their choice. But backlash could easily threaten these as well.

So that puts us back to the pre-clarification days of angry PTA meetings and offensive ads by "family values" groups.

Truthfully, of course, those angry meetings, the heartbreaking stories of students who are bullied, who are not supported by their communities and sometimes by their families, have persisted. But now those students cannot look to the government to protect them. They cannot gain validation from the fact that the actions of those around them are banned by the government. The misinformed ads will persist. They may, as we have seen in other arenas, become more overt, more vitriolic, more misinformed.

This is just the first move to weaken (possibly dismantle?) Title IX. We have a secretary of education who would not comment on Title IX enforcement (it's unclear if she knows what it is) and what appears to be the pending nomination of an OCR chief (assistant secretary for civil rights) who thinks the previous administration overstepped in regards to campus sexual assault provisions.

Here is the good news: we have a vibrant movement committed to reducing campus sexual assault and instituting and maintaining proper policies and procedures for dealing with the crime. In regards to protecting trans students, the fight will be more local. We have seen the backlash to HB2 in North Carolina. We can pressure state and local officials to make schools (and other spaces) safe for trans people. We can work within our own institutions to create gender inclusive environments.

Private School Suspends Girl Who Sued to Play on Boys' Team

The local news in New Jersey recently reported about the decision of St. Theresa's School in Kenilworth to expel a female seventh grade student and her sister after the seventh-grader's unsuccessful attempts to sue the school for the right to try out for the boy's basketball team. A judge ruled in January that she had no right under applicable law, and the family is appealing.

If this student went to public school, she would have a strong argument that the U.S. Constitution's Equal Protection Clause protects her right to try out for the boys' team, which is the only basketball team offered by her school. The Equal Protection Clause requires state and local governments, including school districts, to avoid generalizations and stereotypes when making any sex-based classification. Under this rationale, female students have prevailed in many cases seeking the right to try out for a variety of sports, including sports like basketball that are covered by Title IX's contact sports exemption.

If she went to public school, the student and her family would also have legal recourse to challenge the decision to expel the student and her sister as apparent retaliation for the family's decision to appeal, since Title IX provides strong protection against retaliation. But the majority of private religious elementary and secondary schools do not accept federal funding, insulating them from the obligation to protect students civil rights. Unless St. Theresa's is among those private schools who participate federal programs to subsidize student's school lunches or to purchase classroom technology, the student and her family cannot rely on this statute for recourse.

Often when I write posts about stories where Title IX did not apply, I make the point that students and their families need to be careful when selecting private schools, since that decision often subjects the student to sex discrimination without legal recourse. But it also a cautionary tale against privatization as a policy matter. If federal support for public schools wains or disappears under the current administration -- a possibility signaled by president's nomination of Betsy DeVos -- more and more families may be compelled to accept private schools as a result. This shift would send more and more students like this one into the void of civil rights, with no statutory or constitutional protections available.

Boy Scouts of America Opens Membership to Transgender Boys

The Boy Scouts of America announced yesterday that it will "accept and register youth in the Cub and Boy Scout programs based on the gender identity indicated on the application." This is a change from the organization's previous policy that looked to the applicant's birth certificate for the evidence of eligibility for membership, and it paves the way for transgender boys to be able to join the organization. In its report on this story, the New York Times underscored the abrupt and marked reversal of course by pointing out that only last month a New Jersey Cub Scout became the first transgender boy to be rejected from the Boy Scouts when he was removed from his troop one month after joining.  

The BSA is not subject to Title IX, but I am posting about this story on the Title IX Blog because I think it sets a good example for school districts and other organizations that may be considering similar policy changes. The Boy Scouts are in a position to be particularly persuasive to school districts because they often meet in and are connected to schools. The timing of their policy change is also useful, as it seems some school districts are using the anticipated repeal of  OCR's guidance about Title IX's application to transgender students as an excuse to reject proposed policies that would protect LGBT students and employees. The new BSA policy proves that even without the government's promise to enforce Title IX in favor of transgender rights, it is still both legal and appropriate for local organizations to do the right thing on their own.

Updates from Baylor, Amherst

An additional lawsuit was filed against Baylor at the end of last week. A former female student alleges she was raped by two football players in 2013 while other players recorded the assault and shared the video. The school took two years to investigate the assault. It suspended and eventually expelled one of the players. The other transferred. The lawsuit, like the others, cites a culture of sexual violence at Baylor; a culture Ken Starr claimed did not exist both while he was president of the university and even after his departure.

New information, though, has emerged from this filing. Previously, we have known about the 17 incidents since 2011 that involved 19 players. The lawsuit states that there have been 52 sexual assaults (within an unnamed 4-year period) by 30 football players. The increase is likely due to the fact that the woman who filed the lawsuit was a member of a campus group organized to show football recruits around during visits. Members were supposed to be available for sex; a tool used to sell Baylor to the prospective players. Art Briles's attorney said the former coach, who himself is involved in litigation with the school, denies such a culture existed under his leadership.

With little attention, Amherst College announced before the start of the current semester, that they had concluded their investigation of the offensive messages sent by members of the men's cross country team. Sanctions include suspensions ranging from several meets to the remainder of an athlete's Amherst career. All members must undergo an "educational process" and the team is on probation until 2018.

DeVos Won't Commit to Enforcing Title IX

This week, the Senate Committee on Health, Education, Labor, and Pensions held a hearing on Betsy DeVos's nomination to be the next Secretary of Education. Until this point, DeVos has not made any public statements on Title IX, so the best we have been able to do is speculate on her view of how the law should be interpreted and enforced.  For example, it seems reasonable to predict that she will scale back enforcement of the statute's application to LGBT students, based on her past, extensive financial support for anti-gay and religious causes.

Though we anticipated that a confirmation hearing might shed some light on the nominee's additional plans for the Department of Education and Title IX, DeVos provided few concrete responses to questions by committee members. Regarding Title IX in particular, DeVos said it would be "premature" to commit to enforcing sexual assault statutes like Title IX and Campus SaVE, in response to questioning by Senator Casey (D-Pa.). She also denied that she had promised Republican Senators that she had plans to "reign in" the OCR.

On other issues, she was similarly cagey, such as when she refused to commit to Senator Warren (D-Ma.) that she would enforce existing regulations that protect students at for-profit institutions from fraud, or when she declined to reassure Senator Murray (D-Wa.) that she not was planning to dismantle public education. In fact, the only of DeVos's positions that is clear is her support for "school choice" which many see as a euphemism for privatization, and for which she and her advocacy have come under fire in her home state of Michigan. She also dodged questions -- about guns, and about services for students with disabilities -- by invoking the mantra of "best left to the states to decide" (though she eventually relented that the Individuals with Disabilities in Education Act is in fact federal law.)

Though one Republican, Senator Murkowski of Alaska, pushed back somewhat on DeVos's school choice ambitions -- asking that her commitment to traditional public education was as “strong and robust” as her passion for school choice -- it is evident that DeVos has the support of the Senate majority, and will likely be confirmed next week.

Updates

In Pennsylvania, the hazing case against football players participating in No Gay Thursdays has been settled. Three seniors, accused of harassing/hazing a first-year player, plead guilty to summary harassment. There were discrepancies between what was originally reported (penetration with a broomstick handle) and what was presented during the hearings (pushing a broomstick handle against the victim's leg while they held him down). How the seniors were punished remains unknown. Summary harassment is a citation, not a criminal offense.

As a reminder, No Gay Thursday had been a team tradition for several years. The football coach was initially suspended and then resigned. The remaining football staff was fired; though they were told they could reapply for their jobs. While the actions initially reported seem to have been wrong, the day itself and the culture that created it was still present and threatening. 

There is a Title IX complaint against Liberty University from a non-student who said she was sexually assaulted by a university employee in 2015. The university, which refused to fire the employee after their own investigation into the accusation, said it expects the complaint to be dismissed. But if I was OCR, I would take the opportunity to go to Liberty and find out what is happening with their brand new athletics director.

In November, Liberty hired Ian McGraw, the former Baylor AD who is facing a lawsuit from a Baylor student who accuses him of knowing that former football player Tevin Elliot had a history of sexually assault and displayed deliberate indifference, which led to Elliot assaulting her. Basically, McGraw was part of the Baylor house that got cleaned out when all these things--including additional assaults by athletes and non-athletes, and more deliberate indifference among various campus offices--came to light. Liberty president Jerry Falwell, Jr. is very enthusiastic about his choice: “You look at what Baylor was able to do during his tenure, it fits perfectly with where we see our sports programs going.  This is an exciting time for us.” He also presented McGraw's exit from Baylor as a choice.

I have written frequently about how athletes who commit physical and sexual assaults are often passed around athletics programs by coaches and admins who willfully ignore the issues. I did not think McGraw would be hired so quickly and by another ultra conservative Christian institution. Liberty has set itself up for problems should anything happen under McGraw's tenure. And its moral failings are very much in display with this move. Some in the Liberty community are not happy. Though no students would speak to ESPNW on the record for fear of retaliation. the majority were displeased with the hire and the repentance narrative the school is employing in support of the hiring. Several alum have spoken out, including some who said they would stop donating to the school while McGraw is there.

More on the Baylor swept asides: former coach Art Briles is suing three Baylor regents and one university administrator for libel, slander, and conspiracy. In the lawsuit, Briles claims that the four have made false statements about him in the press. These comments have prevented him from getting another head coaching job, he claims. Not sure how this lawsuit affects the very large settlement Briles received. As part of that deal, Briles was told he could not discuss the cases nor criticize the regents. That was in June. Sometimes there are time limits on such terms; but less than a year seems to be a bit short. Meanwhile, Briles could hit up his old boss for a job. Neither McGraw nor Liberty seem to care all that much about accusations, about character, or the safety of their student body.

Catching up: Stanford

The infamous case of Brock Turner, former Stanford student athlete who sexually assaulted a woman, was found guilty and served 3 months for the crime, apparently has taught Stanford University very little. The mindset of administrators is similar to that of the judge who sentenced Turner--who raped an unconscious woman behind a dumpster and then left her there. There is a fear of ruining the lives of the men who commit these crimes. Consequently, some of them are still on campus and the university is facing lawsuits and complaints about how it handles sexual assault.

[Interesting bit of information: most of the complaints pending against Stanford were ongoing at the time of the Turner case--something we did not hear much about in the coverage of that case. ]

Stanford currently is piloting a new program: using a 3-person panel and requiring the decision to punish be unanimous--not a simple majority--because “being expelled is really a life-changing punishment” according to the provost.The unanimity standard was put into practice in 2016. Expulsion is the only option if the accused/investigated is found responsible.

Two weeks ago The New York Times wrote a feature on Stanford and its handling of a 2015 case in which a disciplinary panel of 5 found a football player guilty of sexual assault--twice.  Correction: a simple majority of the panel members found him guilty. But the standard at the time was a 4-1 decision requirement.  So he was never punished and played last week in Stanford's bowl game. The victim, who studied elsewhere for a semester has not decided is she will return to Stanford.

Backing up a little though. Stanford has several Title IX complaints pending. Filed by former students, the complaints are centered on how the university investigates Title IX complaints as well as the disciplinary process. Again, as noted above, Standford has been changing their policies and procedures, and apparently are eager to avoid the feds coming to Palo Alto for a visit. In December, BuzzFeed reported that at least two of the women--both victims of sexual assault--who have filed OCR complaints were offered money in exchange for the withdrawal of the complaints. In one of those cases the money was offered under the guise of support for therapy and other expenses resulting from the assault; but conditional upon withdrawal of the complaint. (Withdrawal of a complaint does not guarantee that OCR will drop its investigation. It does not require a complaint be filed in order to initiate an investigation.)

As a reminder, the student-run marching band has been dormant this year (except for bowl games!?) in the wake of revelations about hazing--of a sexual nature. (All hazing deserves punishment; the nature of this hazing speaks to the campus climate, which is why I mentioned it.)

In addition to the OCR complaints, a lawsuit was filed against the school in December. A woman who was physically and sexually assaulted by a man with whom she had tried to end relations encountered resistance from university staff and officials as she made her way through the process. She heard the now unfortunately common responses to sexual assault that included questions about whether she really wanted to have sex with him (from a counselor) and whether she really wanted to pursue charges against the assailant, who admitted to student life staff that he did indeed rape the woman in question. Punishment was not pursued because staff believed he was sorry and would not re-offend.

He re-offended. Against at least two other women at Stanford.  He graduated as a student in good standing in 2014. He was issued a 10-year ban from campus.

Stanford is pushing back against the media coverage of its many complaints and several lawsuits. There is a lot of PR happening. There is a lot more to come.

Catching up: Minnesota football attempts boycott

Several significant events occurred in the past few weeks as we were wrapping up semesters, traveling, celebrating good news and times, and reflecting on what 2017 will bring and how we will respond.We will be catching up on these. Here is installment one about the Minnesota football boycott.

Minnesota football team protests Title IX sanctions
Part I: The members of the University of Minnesota football team banded together and said they would not participate in any football-related activities--including their scheduled December 27 bowl game--in protest of sanctions handed down by school officials against ten team members involved in sexual assault and harassment of a female student. They demanded the president and athletic director  reverse the suspension of their teammates.

In what was supposed to resemble activism, the players presented a united front, had a press conference, and told the media that the Title IX infractions were unfairly meted out, that there was violation of due process and constitutional rights. The action is supported by head coach, Tracy Claeys, who tweeted (2017--the year when people become more self-aware about Twitter??) that he has  "never been more proud of our kids. I respect their rights [and] support their effort to make a better world!" He also invoked the concept of due process.

There was a flurry of opinion pieces (and opinion pieces masquerading as fact) about Title IX investigations run amok.

Part II: The players thought that the cultural capital of football and its corresponding economic capital (bowl games = $$) would prevail. Not in this cultural climate--and not with the evidence against the ten players, including four who had been suspended by the coach himself for team violations after the incident was reported in September.

Players hold another press conference and say they will indeed play the bowl game and resume other activities. The change was attributed to the boycotting players actually reading the 80+ page report of the incident; a report compiled by the school as it investigated the incident as per its legal obligations. The reading of the document was part of a meeting with the university president. I imagine that the power of football was brought up in that conversation as well. The power bestowed on intercollegiate football players and the ability of universities to take that power away. (There were many troubling perceptions of the power of football within this whole event.)

The second press conference reflected some of these power paradigms Spokesperson for the boycott said "we understand that what has occurred these past few days and playing football for the University of Minnesota is larger than just us."

Sadly there was no concern for the victim. No support for the role of Title IX and its enforcers in keeping students safe. No clarification about Title IX investigations and how they differ from the criminal process. In short, it does not seem like anyone learned anything except how to (and how not to) wield the power of football.

Part III: Minnesota wins the bowl game. A Forbes writer attributes the underdog win to the "solidarity" that was established during the boycott and calls the boycott a "silent victory." Solidarity in the name of misogyny is not very silent--especially in football.

The school announces this week that Claeys has been fired. The athletics director (in his first year) said that there were issues in the program around recruiting and ticket sales but admitted that the coach's comments during the boycott did not help his cause. There has been pushback against the firing.

Elmira Resolution Announced Today

Today the Department of Education's Office for Civil Rights announced a resolution agreement with Elmira College in New York, after finding the college in violation of some of Title IX's requirements governing its sexual assault response. OCR's investigation was prompted by the complaint of a student who reported to campus officials in November of 2013 that she had been sexually assaulted by a fellow student. (Specifically, she reported that he had become"forceful" and she agreed to have sex with him "out of fear.") After investigation, the final investigative report concluded that the respondent committed sexual misconduct, but did not engage in sexual assault, and sanctioned the respondent with a no-contact order. OCR determined that while the college's response was equitable, the fact the it did not start investigating the complainant's November report until February of the following year was not sufficiently "prompt." It rejected the college's argument that such delay was reasonable in light of Thanksgiving break, final exams, winter break, and a one-week illness of the complainant.

Alone this violation may not seem like a big deal, and even OCR noted that the delay did not seem to result in the further harassment of the complainant.  But the agency also pointed out that when it looked at 16 other sexual harassment/misconduct complaints resolved by Elmira between 2012 and 2016, it found some "violation or concern" in all but one of them, "including instances where the college failed to provide prompt and equitable investigations and took insufficient measures to assess and address the impact of harassment and possible hostile environments." In other words, a pattern of getting it not-quite-right.

As a result, OCR and Elmira agreed that Elmira would commit to training for its Title IX coordinator and other staff members who play a role in the grievance process. The college must also review its own investigations that have occurred more recently than OCR's investigation, to ensure that they were conducted in a prompt and equitable manner.

And Princeton makes...

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

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

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

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

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

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

An end to the Winston saga

In a rather unsurprising move, a settlement has been announced in the case of former Florida State University students Erica Kinsman and Jameis Winston. Kinsman's lawsuit against the former FSU quarterback and current Tampa Bay Buccaneers QB (and Winston's countersuit) has been resolved via an undisclosed settlement. The trial, a goal of which was to hold Winston accountable for raping Kinsman four years ago, was scheduled for April 2017.

No one else held Winston accountable. Local and university police did not investigate properly and the lack of police evidence and interference in the investigative process meant the state attorney general could not effectively prosecute him. FSU also failed to investigate; held a ridiculous student conduct hearing overseen by a former federal judge who had no idea how to run such a hearing; and then found that there was not evidence (over a year later--in violation of Title IX's 6-month time frame) to suggest the sex was not consensual.

As an outsider who closely followed this case, the incompetence, the denial, the misogyny, and overall disregard for student welfare was immensely frustrating. There is little to suggest that FSU has realized the error of its ways or that the culture of Jimbo Fisher's team has changed.

I am not suggesting that the settlement was unwise or that I believe a trial would have produced some desired result. I do think that Winston benefited immensely from the settlement in terms of PR. He has been scandal-free since joining the NFL and Bucs fans seem to love him. A trial that brings up his past might remind (or inform) some people of what he got away with. He learned well from his alma mater that image is everything and paying to make image problems go away is worth it.

As a reminder, Kinsman tells her story in the documentary The Hunting Ground.

On suspending seasons

Yesterday, Amherst College suspended all team activities for the men's cross country team after a student publication revealed social media messages and emails to incoming team members that included racist. misogynist, and homophobic comments.

Last month, Harvard suspended the men's soccer season in the wake of revelations that the team has continued its practice of ranking first-year members of the Harvard women's soccer team in sexually explicit ways.

In a few weeks, the Baylor football team will play in the Motel 6 Cactus Bowl against Boise State despite accusations of sexual assault by 17 women against current and former football players and a clear evidence of cover-ups.

One of these things is not like the others.

Things have been brewing, arguably boiling over, at Baylor for some time, which is why Paul Finebaum, ESPN commentator, expressed outrage last month that the team had not been suspended. Finebaum said on-air that Baylor's football season should have been suspended in light of its many misdeeds (chronicled here--and everywhere). Finebaum was calling for the Big 12 to issue the suspension because neither the NCAA nor the university itself will do so. The NCAA is not planning  anything in response to the cover-up of the sexual assaults and to an institution that does not have control over its athletics program. Baylor hired a law firm to do an external investigation and then failed to make changes and refuses to acknowledge a culture of sexual hostility and athlete privilege.

The two events at Amherst and Harvard have commonalities: introduction of the first-year class into team culture using offensive discourse; elite, private schools; men's "minor sports"; both schools will conduct investigations into the matters.

At Harvard the offense was directed at the women's soccer team; a betrayal of what many of the women felt was a familial (non-sexual) relationship. Since the soccer scandal was revealed, it has come out that similar practices have occurred within the men's cross country team. The initial response was meh. The athletic director said Harvard would handle it internally and by trying to make it less of a media thing--he made it more of a media thing. The additional findings that 1) players were not being "forthcoming" about what was happening and 2) it was still happening forced the AD as well as the university president to make stronger public statements and ultimately cancel the season. Investigations are ongoing.   

At Amherst, it does not appear--at the moment--that the commentary was directed at a female team. A June 2015 list of female students has surfaced that includes pictures and comments about their sexual pasts, including guesses about STD infections. The incidents in question are from 2013-15. Of course, as we saw at Harvard, these things often do not just disappear on their own, even when there is new leadership--as there was at Harvard when they hired a new soccer coach a few years ago.

Also, the cross country season is over. "Team activities" would likely include team banquets or coach-led practices, but it's finals week at Amherst, and I assume there is not much on the docket for the team. So now Amherst must decide how to proceed. Will athletes involved be individually punished? Will the be prevented from running next season? Many cross country runners will also run indoor and outdoor track. Will team members be allowed to compete for their other teams? To its credit, Amherst, under its (not so new anymore) president, has taken issues of sexual assault and harassment more seriously than in the past. The school's response was immediate and the AD and president are seemingly on the same page. I hope this one does just fade away. Investigations are ongoing.

What have we learned? Well male privilege and sexual misconduct are not just the province of football players. This is obvious when taking a broad look at the cases of harassment and assault involving athletes. Baylor gets the most attention because it is a big-time football program. (There is also the issue of adherence to "Christian values" that are the alleged bedrock of the institutional mission; this has received less attention.) So what it looks like is that there is more at stake at Baylor--for the athletes, for the coaches, for the school. I do not agree with this view because what I know for sure is that the stakes are the same for the women who are the victims of these athletes and for potential victims. They are on campuses where sexual violence is a known reality (as it is on most campuses). The crimes and misdemeanors may be different and, at the individual level, the effects on victims may be different (in part because of school response). But all these schools have a climate of sexual hostility and it is manifesting in their athletic departments, among their male-student athletes (and probably at higher levels as well). And this means that students do not feel safe at their schools.



PS. More on Baylor:

The university received word this week from the Southern Association of Colleges and Schools, an accrediting body, that it would be monitoring Baylor's ability to 1) maintain institutional control over intercollegiate athletics, 2) create a safe and healthy environment for students, and 3) provide adequate student support services.

In other words, while there are a lot of external pressures on Baylor, it continues to do very little. Baylor fans might say that ditching Art Briles was enough. Finebaum, and many others, do not think so. Firing Briles (who is suing the school for libel) was cleaning house. It is was not shoring up the structure of the house. In fact (to continue to metaphor) Baylor brought in a temporary coach, Jim Grobe, who seemed to be predisposed to making things dirty again and further weakening the structure. (Based on comments during his early press conferences and interviews.) The new coaching staff has been named. We shall see what those press conferences bring.

Investigations are over.

PPS. Columbia wrestling
I knew I forgot something! Columbia University (also elite, private) suspended its men's wrestling team ("minor sport") after some members' racist and misogynist texts were discovered. Columbia completed its investigation last month. While the investigation was pending, members were not allowed to compete. The team was still practicing.

The messages were sent in a group message format. Those not participating in the group message were allowed to resume competition. Some members were suspended for the rest of the season. Others were suspended until the start of spring semester.

Notable in this case: former assistant coach Hudson Taylor who founded Athlete Ally, a group that supports LGBT athletes, took some responsibility for the culture that engendered these messages:

"[The actions] are a reflection of our culture and my coaching. I apologize to the Columbia campus, to the alumni, and to my former wrestlers for not doing more to develop them into young men of better character.”

A Roundup of Disciplined-Student Cases

In three separate cases, courts issued rulings this week that address claims by students disciplined for sexual assault that the university's process for administering discipline was biased and/or procedurally unfair. A summary of each is below.

Doe v. Ohio State University.  In this case, Ohio State expelled a male student for having sex with a female student who could not consent due to incapacitation by alcohol. He sued the university and several university officials in federal court. This week, the court granted the university's motion to dismiss the constitutional and Title IX claims against it because state entities like Ohio State enjoy sovereign immunity from suit in federal court.  The sovereign immunity doctrine has an exception for cases where the plaintiff seeks prospective relief, such as reinstatement, but because the plaintiff did not request reinstatement, that exception does not apply.

Additionally, the university officials moved to dismiss the claims against them in their personal capacities on the grounds of qualified immunity.  Under this doctrine, state officials are only liable for violations of constitutional rights that are "clearly established." The court determined the most of the plaintiff's allegations about the deficiency of the process constituted a violation of clear constitutional precedent.  However, the court did not dismiss plaintiff's allegations that the university officials were trained in a biased manner, since if proven, such claims would implicate a clear constitutional right to have one's case decided by an impartial adjudicator.  However, the court cautiously acknowledged that there's a difference between being biased against sexual assault in general, and being predisposed to finding a respondent responsible for sexual assault in a given case. The plaintiff can't satisfy the latter with evidence of the former. However, the court read the plaintiff's allegations as plausible enough to warrant discovery.  The officials would have an opportunity to seek dismissal on summary judgment and have the court determine if the plaintiff has meet that burden of producing evidence in support of the allegations.

Doe v. University of Cincinnati.  Here, a male student was suspended for one year for having sex with a female student without her affirmative consent. He then sued the university in federal court and moved for an injunction that would prevent the suspension from taking effect. The court granted the injunction after agreeing that the plaintiff was likely to prevail on the merits of his argument that the complainant's absence from the hearing deprived him of an opportunity to cross-examine her. While not endorsing a blanket right to cross examination in all student disciplinary hearings, the court did acknowledge the importance of that right in cases like this one where the hearing panel's assessment of parties' credibility was the key factor in its determination. The court also did not insist that when a right to cross examination exists, it must be conducted in person at the hearing. Instead, what made the accuser's absence from the hearing a due process violation in this case was the fact that the respondent did not know in advance that she would be not be present, and thus, was unable to take advantage of other means of cross-examination, such as the submission of written questions that the hearing panel could have posed to complainant in some other way.

Arishi v. Washington State University.  This case stems from Washington State University's decision to expel a doctoral student after he was arrested for child molestation and statutory rape. The student sued in state court to challenge the university's disciplinary procedure as a violation the state statute that imposes procedural requirements on adjudications conducted by state agencies. He argued that he was not allowed a "full hearing" required by Washington's administrative procedure act, which would have provided him the opportunity to cross examine witnesses, present evidence, and be represented by counsel.  The court agreed that state universities are subject to the law and that none of the exceptions warranting an abbreviated hearing apply. The court has ordered the plaintiff's case remanded to Washington State, which must conduct a full hearing if they wish to expel him. According to this news article about the case, the court's decision will mean changes in the disciplinary process not just at Washington State, but 26 other state colleges and universities whose procedures do not constitute full hearings under the state administrative procedures act.

Sex-Segregated Elementary School Violate Title IX, OCR Says

An Idaho elementary school may no longer segregate students by sex after the Department of Education's Office for Civil Rights determined that doing so without evidence-based rationale violated Title IX. OCR's investigation was triggered by the ACLU of Idaho, which filed a complaint against Middleton Heights school district in 2013. The ACLU argued that the elementary school's practice of separating boys and girls from first through sixth grade, including even for some nonacademic subjects, was not tailored to the program's stated objective of closing the gender gaps in reading and math proficiency.  For one reason, the program segregated students for more than just math and reading instruction. But even as it applied to reading and math, the school district's rationale was based upon a faulty premise according to the ACLU, which cited evidence that gender gaps in math and reading at Middleton Heights elementary school had been small or nonexistent prior to the segregation program. Instead, it argued, the school district imposed segregation based on impermissibly "overly broad generalizations" and gender stereotypes, such as that boys benefit from a kinetic classroom environment and girls need calm and quiet. The ACLU's complaint criticized the school district for operating on these assumptions and attributing them to entire genders, rather than making an "individualized assessment" to determine which students benefited from which environment.

The school district actually curtailed its decade-long segregation in June, and reportedly had no plans to reinstate it. To make sure, however, OCR is monitoring the school district until 2020.