- Do Competitive Spirit Competitions Offer Athletic Opportunities that Count Under Title IX?
- Opportunity for Emerson
- OCR Concludes Compliance Review of Ohio State
- Light punishments, heavy mattresses, and lawsuits: Campus sexual assault round-up
- Back to campus: Policies and practices for trans college students
- Mount Holyoke College Clarifies Admissions Policy in the Most Trans-Inclusive Way Possible
- Title IX, sexual assault and high schools
- High School Basketball Hazing Case May Go to Trial
- Oklahoma colleges handling misbehaving student athletes
- NCAA Reform and Title IX
- Expanding the movement
- The latest investigations
- The answer to Monday's question is...
- Who will investigate AFA next?
- Assailant given third chance
- Senators Propose New Law Aimed at Campus Sexual Assault
- Even with exemption, George Fox not off hook
- Understanding the Religious Exemptions from Title IX
- Two more religious exemptions
- UTexas learning from others' mistakes?
- Ohio State Marching Band Director Fired Over Sexual Harassment
- FSU finally addressing sexual assault
- UConn settles lawsuit
- George Fox updates transgender policy
- Thoughts on Hobart and William Smith Colleges case
As the school year gets underway in Texas, high school students there have the opportunity for the first time to compete in a statewide cheerleading competition sanctioned this summer by the states interscholastic athletic league (the UIL) on a one-year trial basis. The four-day competition will be based on "what cheerleaders do during a pep rally or on the sidelines, without the high-flying tosses and difficult gymnastics found in competitive cheer" -- according to the UILs executive director. The league was reportedly motivated to add the cheerleading competition in order to ensure that school districts cheerleading programs comply with its health and safety regulations. Ensuring the safety of cheerleading participants is an important objective, and I support the leagues decision to create a "Game Day Cheer" competition in Texas on these grounds. Separately, however, it is important that school districts who decide to participate in this competition do so because they wish to enhance extracurricular opportunities for the students involved, and not because it counts as a source of athletic activities under Title IX. While the Department of Educations Office for Civil Rights does presume that activities recognized by the institutions athletic association count as a source of athletic opportunities that should be counted under Title IX, this presumption can be rebutted by evidence that the activity in question is not similar in nature to the other athletic opportunities supported by the institution. The factors that are used as a the basis of this comparison include how the activity is administered (i.e., by the athletics department, like other sports), how the activity is structured in terms of having practice and competition schedule that is comparable to other sports, that opportunities to compete in a post-season tournament are, like in other sports, based on regular season results, and that selection for the activity is based on athletic ability. The application of these factors raises doubts about the ability of Texas competitive cheer to count as a source of Title IX opportunities. Moreover, the judge in the Quinnipiac case determined that the competitive cheer team at issue in that case did not count as a source of athletic opportunities under Title IX because too many of the teams competitions emphasized non-athletic factors such as spirit-raising. Given that Texass state championship deliberately emphasize spirit raising to the stated exclusion of athleticism, it would seem to be disqualified from the Title IX analysis for that reason as well. To be clear, I found no suggestion that the UIL is promoting competitive cheer as a means for its member school districts to comply with Title IX. However, I did note that just as the UIL endorsed competitive sideline cheer, it rejected proposals to sanction water polo and bowling, both of which could have served as sources of athletic opportunities for girls. I worry that this sends the wrong message to school districts that they can add competitive sideline cheer _instead of_ other girls sports, when for schools lacking in compliance with the three prong test, this is not legally the case. Any Texas school district that uses competitive cheer opportunities to suggest the appearance of gender balance in the distribution of athletic opportunities is taking a legally vulnerable position that would be hard to defend to OCR or to a federal court.
Emerson College in Boston has already found itself on the wrong side of Title IX compliance after being accused of mishandling sexual assault complaints. Some investigating by the campus paper has found that there was also a complaint against the school (and 99 other New England colleges and universities) alleging insufficient athletic opportunities for female students. The mass complaint format is not new. We have seen it in states including Washington, California, Idaho. All these were aimed at high schools. The commonality is that they have all been done by an entity calling itself The Old Guys for Title IX. Friend of the blog Herb Dempsey, who counts himself as a member of The Old Guys, spoke to the Emerson paper about the complaints--all of which have been dismissed. The Office of Civil Rights does not believe the complaints have sufficient evidence to prove denial of opportunities. And based on the comments of students at Emerson who were interviewed in the article, they dont feel wanting either. The numbers show the opportunities provided to female students are not proportional to their representation in the undergraduate population. The participation gap (based on 2013 numbers) is 16% or 39 opportunities. This does not mean Emerson is not in compliance, but we dont actually know that because, now that the complaint has been dismissed by OCR, they dont have to prove either prong two or three. As an Emerson alum (from the grad program admittedly), it didnt seem that athletics was an integral part of the Emerson experience. This, of course, does not mean that the female students are less interested than the male students who attend the liberal arts school. But Emerson should be required to ask, at least. If, as one student contends, students are more focused on the arts (and that is somehow more applicable to female students) and everyone is fine with what exists right now, it should not be too difficult for Emerson to assess that. With such a drastic participation gap, Emerson is setting itself up for future problems. Even if the complaint by The Guys was not successful, a future student complaint might be considered by OCR. And if Emerson has not chosen a prong and has data at the ready to prove it is indeed in compliance, it will be vulnerable. It continues to astound me that athletic departments are not crossing their ts and dotting their is when it comes to Title IX. It does not matter if the program is not "big time" or even if it is a smaller part of student life, it still has to comply with the law.
The Department of Educations Office for Civil Rights announced that it has concluded a Title IX compliance review at the Ohio State University that the agency commenced at its own initiative in 2010. OCR determined that OSUs written policies and procedures for responding to sexual harassment and sexual violence did not comply with Title IX requirements such as by failing to designate reasonable timeframes for the major stages of the disciplinary process, failing to extend the policies to harassment committed by third parties, and failing to define sexual harassment to take into consideration the subjective (as well as objective) perspective. In response to these and other findings, the agency negotiated a resolution agreement with the university that obligates OSU to make necessary revisions to come into compliance. In particular, OSU is obligated to: * Streamline and revise certain policies consistent with the law; * Review and confirm the proper handling of sexual harassment/violence complaints and reports since the 2011-12 academic year; * Expand sexual assault and harassment training programs to include all members of the university community – including students, faculty, administrators, and university police; and * Establish a campus focus group to provide input on strategies for ensuring that students understand their rights under Title IX, how to report possible violations, and Ohio State’s obligation to promptly and equitably respond to Title IX complaints. Now that the agency has concluded its compliance review at Ohio State, the university is no longer in the company of the eighty-some other colleges and universities with pending Title IX investigations. (By way of background regarding OCRs investigation methods, most of its investigations result from complaints that the agency receives, but a small percentage of are conducted proactively by the agencys own initiative -- with OSUs investigation falling into that latter category. Another example of a proactive compliance review was the SUNY-system review that concluded in a similar manner in 2013.) Another contextual point worth making is that the agencys review commenced long before the problems of sexual harassment and sexualized climate of Ohio States marching band came to light. Yet, OCR has taken the opportunity of its pending investigation to review and endorse the universitys response to that matter, which included terminating the band director and as well as implementing other structural changes to prevent similar problems going forward. In the press release announcing the resolution agreement, Catherine Lhamon, the Departments Assistant Secretary for Civil Rights "applauded" the university for setting "clear and vitally important expectations for a community-wide culture of prevention, support, and safety," and for serving as an example of "strong leadership.. to eradicate a culture of silence related to sexual harassment." As Ohio State endured criticism from the band directors supporters who believe his termination was an over-reaction, it no doubt appreciates the Departments inclusion of this public statement of support.
There have been a few stories over the past week or so about campus sexual assault that deserve a mention. One that has been making the rounds in the press and on social media is the story of a Columbia University student who is protesting the fact that her assailant is still on campus by carrying around a mattress wherever she goes. This story has been picked up by multiple outlets and is about a student who has been part of Columbias very vocal group of activists who have protested the way the university has handled reports of sexual assault. Emma Sulkowicz is the mattress-carrier. It is protest but it is also art. She is calling it Mattress Performance or Carry that Weight and it is her senior thesis. Read the piece on HuffPo for a description of the project and its meanings. We have seen some creative means of protest during this national movement, examples of students taking control when they feel their schools have failed them and making sure the issues remain in the public and community eye. Sulkowicz is also the student who, even though her rape occurred several years ago now, went to the police to file charges at the end of last semester feeling that she had to do something when the university did not. She will carry the mattress around, she said, until he leaves campus--either of his own accord or because of university action. University of North Carolina is facing lawsuits from victims of sexual assault. In one, a student is claiming the university mishandled her complaint. from the facts provided, it seems they didnt handle it all with the complaint being lost in one administrators inbox for weeks before he told the victim he was passing it on to another administrator who met with the victim and then passed it on to someone else who never got in touch with her. There was failure to follow through with the victim who was told things were a little confusing because the university was in the process of revising its policies. She left the school, but pursued the case and UNC eventually began an investigation which took far too long and was plagued by other issues. The reasons behind OCRs investigation of University of Kansas which was announced in the middle of the summer have been revealed. A student who was raped by someone who admitted not stopping sexual activity when the woman asked for him to do so filed a complaint about the universitys handling of her case. The woman, who went to a party with her assailant and who walked her home because she was intoxicated, actually went to the police first who spoke to the assailant who admitted his actions. Local officials have refused to pursue a criminal case despite the confession and have threatened the victim with charges of underage drinking if she pursued the case. She then went to university officials who did investigate the case but found not rape but "nonconsenual sex" had occurred. (This post on Feministing takes to task this and other euphemisms for rape.) The university banned the assailant from campus housing, had him write a reflective essay, and required he go to counseling. They considered required community service but felt it would be too much punishment. They told the student, who appealed the light punishment, that his sanctions were in accordance with university policy. Could be true, but that doesnt mean the policy--for which university administrators are responsible--is a good one. That is what OCR will assess. Light punishments are also at the center of two other complaints. A graduate of UC Santa Barbara filed a complaint in response to her rape. The university basically offered a pleas deal to her male assailant saying that he could agree to a two-term suspension or go through an investigation which could result in his expulsion. He chose the suspension, but was allowed to complete the term and his finals. And because the victim was graduating, he was actually allowed back to campus after only three months. A University of Toledo graduate filed a complaint after her assailant who admitted that he heard her say she didnt want to have sex received probation, a $25 fine, and mandatory sexual assault education totaling ten hours.
Weve been doing this blog for some years now and so we notice trends. For example, every spring there are a dozen stories or so about trans and gender non-conforming students being denied access to their proms, other school-sponsored events, and sometimes even a spot in their own yearbooks. This fall there is far more attention being paid to the lives of trans students on college campuses. (Some of this did start happening over the summer with the visibility of an Oregon college students efforts to get housed with other men and with the rise in religious colleges seeking Title IX exemptions from accommodating trans students.) But yesterdays announcement from the all-female Mt Holyoke College about their new admissions policy is just one story about trans college students. Mills College, another womens college, also announced changes to its admissions policy. The California school will now admit self-identified women. It will not admit FTM students who have legally changed their gender prior to application to the school, but will--like MHC--retain those students who transition while at Mills. The public announcement of these policies is something certainly to be lauded along with those of co-educational institutions that are making explicit the legal protections afforded to transgender students as well as resources for these students. The Transgender Law and Policy Institute has published this about the rights of trans students and responsibilities of schools as well as examples of what schools are and are not doing. I could not find a date on this piece, so I am not sure how accurate the numbers are regarding the availability of, for example, gender neutral bathrooms or how many schools allow students to change their given name for school transcripts without legal documentations, etc. But the guidelines are valuable regardless touching on many aspects of student life: housing, bathrooms, health care, locker rooms, documentation. The issue may come in how this and other information is disseminated. This piece from Buzzfeed speaks to the burden trans students face in explaining their lives, their identities, their names and pronouns, etc. to not just their peers, but their professors. One student called it "Trans 101." And if you have been paying attention to some of the media this past summer around Laverne Cox and Janet Mock, two high-profile transwomen and their treatment by talk show hosts, you know that cisgender people often feel it is permissible to ask very personal questions. Both Cox and Mock publicly expressed the problems with such questions, but trans students likely have to make decisions every day in one-on-one or small group settings about how much to reveal and how to explain that even asking some questions is inappropriate and why. This subjects them to any number of responses from peers and those above them (professors, administrators, staff). It is not unusual for those in the majority to expect the minority to educate them. Jean Baker Miller discusses this dynamic in her article "Domination and Subordination." In other words, policies are great, but they do not change culture all by themselves. Such work requires additional and consistent efforts by those in the majority and the minority.
As of today, Mount Holyoke College, a womens college in Massachusetts, now clarifies on its website that it will consider applications for admission from transgender students. Specifically, the website reports that the following students may apply: * Biologically born female; identifies as a woman * Biologically born female; identifies as a man * Biologically born female; identifies as other/they/ze * Biologically born female; does not identify as either woman or man * Biologically born male; identifies as woman * Biologically born male; identifies as other/they/ze and when “other/they” identity includes woman * Biologically born with both male and female anatomy (Intersex); identifies as a woman By including those who are "biologically born female" who identify as male, Mount Holyokes admissions policy is even more inclusive than that of Mills College, a womens college in California that earlier this month welcomed applications from transgender women, but not those "female-born students, who have undergone a legal change of gender to male prior to the point of application." In my view, Mount Holyokes broad view of those eligible for admission recognizes that both biological sex and gender identity are relevant for defining a community whose ostensible purpose is an antidote to male privilege. Transitioning to male does not erase the privilege deficit that may have accumulated for a student during the time she was legally female. (Ive blogged about this before.) The other thing that makes me happy about Mount Holyokes public endorsement of trans inclusion is that it suggests the college has finally dropped its mistaken belief that admitting transgender women would somehow cause the college to lose their federal funding under Title IX (an argument that is belied by the fact that Title IX does not even apply to the the admissions practices of private undergraduate institutions). It seemed to me that Mount Holyoke was the public voice of this argument and that it was impervious to attempts at correction. So Im not only glad to see Mount Holyoke adopt an inclusive admissions policy, Im also happy to see an end to its misplaced blame on Title IX.
AMENDED: 9/3 While the stories we have heard from college students across the country about sexual assault and sexually hostile climates on their campuses are shocking, these stories are not--unfortunately--limited to college environments. We have recently heard about a case in Seattle where a rape occurred during an overnight field trip. The girl reported the rape right away and went to the hospital where a rape kit was performed and an advocate confirmed that the victim did exhibit the signs of someone who had been sexually assaulted. Evidence, however, was not compelling enough to pursue a criminal case against the perpetrator who admitted that the girl had said no to anal penetration and that he had not thought much about her during the act. But despite the pleas of the parents of the victim--who was never able to return to school and was admitted to a facility for treatment for PTSD--the school did not investigate the incident. When the school did undertake an investigation--6 months later--they found that the girl was not subject to unwanted touching or sexual assault. The assailant was suspended for 10 days right after the assault out of fear for other students safety. Interestingly, it was not his first suspension for this type of infraction. He had been suspended in middle school for having sex with a girl. Other problems with the school response to the situation, outside the obvious lack of an immediate investigation and that the parents had to plead with the school to investigate, was that the parents inquiries to Seattles Title IX coordinator were never answered. The coordinator always referred the family to the districts lawyers. The family left the state and went into debt seeking treatment for their daughter. There has been a lot of discussion lately about penalties to schools that fail to create and comply with effective sexual assault policies and procedures. But these discussions have focused on colleges which also face damage to their reputations, something public high schools have less fear of. Colleges do, however, share a similarity with this--and other--cases of assault in high schools: the threat of revoked federal funding just is not effective. And while that is certainly true of this Seattle case, a lawsuit would seem to go pretty far and the family has been diligent about collecting and presenting a significant amount of evidence already. Sanctions from the government may not be as effective as we would like them to be at this moment, but lawsuits cause considerable distress. K-12 schools have been put on notice for issues of bullying--where there have been significant damage rewards to victims--sexual assault should not be any different. The parents have started an advocacy group, Stop Sexual Assault in High Schools, in an attempt to garner national awareness of this issue and be a resource for other families and victims. There is a demonstration Wednesday, September 3 at 4:15 in Seattle. The details can be found at the above linked Facebook page.
Last year we posted about a lawsuit filed in federal court in Tennessee, in which the plaintiffs -- three high-school aged sisters and their parents -- sued the Rutherford County Board of Education after being hazed in a sexual manner upon joining the girls basketball team at Siegel High School. The girls alleged that they were subjected to an initiation or hazing ritual that the court refers to as "cornholing" -- a practice "whereby a girl on the team would attempt to place her finger up the rectum of another girl by surprise." Moreover, the plaintiffs claimed that school officials tried to keep the issue quiet and did not meaningfully discipline the player involved because she was the coachs daughter, and that the coach of the team retaliated against the girls for reporting the incident by reducing their playing time and eventually suspending them from the team. At the time the lawsuit was filed, we noted that the school districts position on the matter was that the cornholing was not sexual in nature. Fortunately, a district court disagrees with the school districts absurd suggestion that nonconsensual anal penetration is not sexual in nature. In denying the school districts motion for summary judgment, the court agreed that a jury could find that the incident satisfied all of the elements for institutional liability for discrimination under Title IX. First, the court agreed with the plaintiffs that "inserting (or attempting to insert) a finger in another persons rectum or vagina reasonably could be construed as a sexual act that is a severe violation of an individuals body and personal privacy." The court next determined that the plaintiffs had introduced sufficient evidence for a jury to conclude that school officials had actual notice that the incidents had occurred, since the parents reported the them first to the basketball coach, then to the principal, and then to the Director of Schools. Finally, the court found ample evidence of the schools deliberate indifference, characterizing the schools response as "foot-dragging in violation of school policy, which endured for months and at multiple administrative levels." The court makes clear that the school was not on notice of the teams initiation practices prior to the plaintiffs reports, and thus cannot be liable for damages arising from the cornholing itself. However, its indifferent response (which included the assistant principle telling the girls to "keep the issue quiet" to avoid giving their high school "a bad name") to the matter once it had been reported subjects the school to potential liability for damages that the girls endured from that point on. To this end, the court noted that the sisters "faced the prospect of additional harassment or at least the indignity, intimidation, and justifiable discomfort of being forced to play alongside their alleged harasser and under the coach/father who seemed to be protecting her." Additionally, the court found sufficient evidence in support of the plaintiffs retaliation claim for that to proceed to trial as well. Unless the parties settle first, the case will proceed to trial, and a jury will determine whether the Board of Education is liable and for how much.
Doe v. Rutherford Cnty., Tenn., Bd. of Educ., 2014 WL 4080163 (M.D. Tenn. Aug. 18, 2014).
Not all of these cases are Title IX specific, but given the cover-ups and repeat offenses that happen when colleges look the other way (see the last incident below) or lightly punish student athletes who commit assault, I felt this update is relevant. The athletic and college administrators at the University of Oklahoma have announced the suspension of first-year Joe Mixon, a "highly-touted" recruit. Mixon was charged with a misdemeanor after punching a woman in a restaurant, breaking four bones in her face and leaving her unconscious. And OU has decided to suspend him for the season. He had been banned from team activities since right after the incident. In the wake of the wrist-slapping the NFL gives players who commit assault, it might seem that OU is taking a hard line in this case. But as Deadspin writer Diana Moskovitz notes, this is the same team advocating for the eligibility of Dorial Green-Beckham, former Missouri football player who was dismissed after breaking into his girlfriends apartment and assaulting someone at that residence. The girlfriend did not press charges because she feared backlash from the Missouri football community. (She must have learned well from FSU.) OU should tread cautiously given that elsewhere in Oklahoma there is a Title IX issue.... University of Tulsa is facing a Title IX lawsuit from a female student who alleges the university did not do enough in addressing the history of sexual assault allegations by basketball player, Patrick Swilling, Jr. The lawsuit states that the university knew of an incident at Swillings former school, the College of Southern Idaho and ESPN commentator said it is "shocking that the coach [at Southern Idaho] would pass the buck" on this. This is NOT AT ALL shocking. This underground passing of suspect student athletes happens all the time. What is more shocking--to me--is that the Southern Idaho admitted it handled things poorly. The former president said he felt the schools duty to investigate was mitigated by the fact that local law enforcement conducted an investigation. Back in Tulsa, though, Swilling was cleared by a university investigation into the sexual assault (there was also a prior sexual assault allegation to campus security by a student who has graduated and does not want to pursue the issue--which was not pursued by the university). This has seemingly cleared Swilling for athletic participation and he is in fact trying to get on the football team and the coach wants him. How this lawsuit (and an Outside the Lines investigation into sexual assault) affects his chances remains up in the air.
Last week a federal district court judge ruled in favor of the former college athletes, lead by Ed OBannon, who were challenging NCAA rules that prevented them from sharing in the proceeds that their colleges and universities earned by licensing their names and likenesses for commercial purposes like television broadcasts. The court agreed with the athletes that NCAA restrictions on athlete compensation are a form of price fixing that unreasonably restrains trade, and, as such, violate federal antitrust law. As a result of the courts decision, the NCAA must allow schools to use broadcast proceeds to provide stipends that compensate athletes for the true cost of attendance, which is often more than the cost of tuition, room and board, and books to which athletic scholarships are currently limited. And it must allow schools to hold some of the money they receive from television broadcasters for using players names and likenesses in a trust fund, to be shared among the players when they graduate. Though these changes will result in only modest compensation for former athletes -- the court specified that the NCAA could restrict payments from the trust fund to ensure that athletes only receive up to $5000 -- the case is still a very big deal. No longer can the NCAA invoke the concept of amateurism to justify whatever restrictions it would like to place on athlete compensation. Notably, the OBannon plaintiffs came from the sports of mens basketball and football, which are the sports that generate broadcast revenue. Accordingly, the decision only speaks to athletes in those sports. Yet, the decision is bound to have an indirect effect on womens sports, as a result of Title IX. As economist Andrew Schwarz explains, both in Jane McManuss column on espnW, as well as in his own Deadspin column yesterday, Title IX requires schools to allocate scholarship dollars in manner proportionate to the gender ratio of student athletes. A school that decides to offer male football recruits some additional compensation would have to ensure that a proportionate dollar amount is allocated to female athletes as well. Otherwise, they have a compliance problem. (Or more likely, a _worse _compliance problem, as many schools already do not provide enough scholarship dollars to female athletes.) As McManus points out at the end of her column, the effect of the OBannon decision on womens sports could be to inject a little more money into womens sports. But is that really a victory? To the extent the decisions legitimizes a version of college athletics that operates, as McManus says, "as platform for ticket sales, TV contracts and cash" rather than an "educational tool" is it really a victory for college athletes at all?
Two recent pieces about sexual assault and harassment on college campuses will hopefully open up more dialogue and more changes that offer protections to others in addition to undergraduate students. Actually, one of the pieces--from _Inside Higher Ed_--reported on the harassment that takes place when doing fieldwork; so in off-campus situations. The article reports on the recent publication of a survey that asked people involved in off-campus fieldwork about their experiences with sexual harassment in these settings. The harassment happens between colleagues and also between supervisors and trainees (often graduate students or postdocs). In other words, most often it is between people with different levels of power, though it is not unheard of for harassment to occur, for example, among graduate students or other trainees. The harassment women experienced was more likely to occur with people who were more powerful than them, whereas the harassment men reported was more often peer-to-peer harassment. There were 666 respondents to the survey, 78 % of whom were women. A majority of respondents (about 75%) had heard of or witnessed sexual harassment in the field. A slightly lower number, 64% said they had experienced it themselves. And 20% reported being victims of sexual assault, which the researchers defined as any unwanted sexual contact, including rape. Several academic professional societies have responded to the study noting their obvious opposition to harassment in the field. But whether these organizations have policies or make statements is of little consequence since they generally have no authority over the people involved. In other words, schools need to address this issue. Fieldwork is a very different situation and it requires very specific attention. How does one report harassment and assault while in the field? How are protections offered to victims? What are the protocols from removing an assailant from the field? An additional factor that is specific to this situation is that trainees and lower level colleagues have a lot to lose by reporting assault and harassment. Supervisors can be dissertation committee chairs and members, advisers, tenure committee members, recommendation writers and general notable people in their fields. This is an issue that also faces graduate students. This was well-noted by Brown graduate student, Sara Matthiesen in this article. Matthiesen has been advocating for specific attention to the issues graduate students face being neither students nor employees. Private institutions, such as Brown, do not have to let graduate students unionize, thus providing even fewer avenues for protections. Matthiesen is asking for greater awareness within departments about resources and training for graduate students about sexual harassment. Peer to peer harassment can be addressed via student judicial boards, but harassment by supervisors, professors, and others who hold more power than graduate students go through different processes which end in a final decision about, for example, the employment of a faculty member, with the word of one individual (usually president, dean, or provost) even if an entire panel has heard the case and made a recommendation. Victims also do not receive the same level of support in going through a grievance process--no advocate, no office providing support. But even these practical issues do not entirely address the problem of the academic hierarchy. Matthiesen sums it up well: _Graduate students not only risk their educational opportunities when they take steps to hold advisers and colleagues accountable for sexual violence. No longer able to conduct research in the lab, or obtain letters of recommendation from the leaders in their field, or secure access to faculty research money, they risk losing their current and future livelihoods. No amount of Title IX coordinators or university-wide committees on sexual misconduct can correct for the power imbalance that defines this professional relationship, an asymmetry that is only compounded when universities refuse to acknowledge graduate students’ work lives and goals._ This moment of student activism on the issue of campus sexual assault has been impressive and drawn considerable attention and hopefully will result in positive changes. And though the focus has been on the experiences of undergraduates, it is a good time to realize that sexual harassment and assault happen to other members of a university community both on and off campus. As many schools scramble to correct and clarify their policies and procedures for undergraduate sexual assault, they should also take the moment to broaden their scope.
Johns Hopkins University and UCLA were added to the list of schools being investigated for handling of sexual assault this week. That brings the total number of investigations to 80 At JHU, the student-filed complaint states that the student was discouraged from reporting her rape by a dean who noted that no student had ever been expelled for a sexual assault charge. I wonder what they do expel students for... I have not seen any information about any precipitating events for the UCLA investigation. Also, late last month OCR announced that Hampshire College was under investigation. This is an investigation that was not prompted by a complaint, though. The Department of Education, however, does not randomly investigate schools. This suggests that the department received some kind of information whether data or reports that was compelling enough for them to launch an investigation.
...no one. Well maybe the Department of Defense. Though I knew that military academies were Title IX-exempt, I believed that, like religious institutions, exemptions were based on the mission of the institution. In other words, when Title IX first passed and military academies were single-sex institutions, the argument was that there was a compelling military interest for keeping them that way. But exempt for military academies is complete exemption. Go to the websites and try to find a Title IX coordinator. There isnt one. Go to the Equity in Athletics Data Analysis Cutting Tool and enter the Air Force Academy or Coast Guard Academy to find the breakdown of male-female athletes, spending on sports, revenues, etc. There is nothing. I do not see a compelling military or national interest for exemptions from all aspects of Title IX. And when it comes to campus sexual assault, I feel similarly. Though, as I told _Inside Higher Ed_, it is possible that the military sanctions against sexual assault are even more severe, the lack of transparency and the lack of oversight are problematic at a time when the federal government has committed itself to greater transparency on this issue and asking for funding to increase the number of staff to do investigations. The militarys record on sexual assault is abysmal and the cover-ups of both large-scale scandals individual cases inspires little faith that there can be change without more public oversight.
The Air Force Academy announced it was launching an investigation into its athletic department after the local paper, the Colorado Springs Gazette, did its own investigation into the department. The latter revealed sexual assault by athletes, use of date rape drugs, academic allowances to athletes, drinking and drug use. At the center of controversy is a 2010 party that resulted in 32 students being investigated. Not all were athletes but three athletes, 2 male, 1 female, were expelled. It does seem like AFA addressed the misbehavior of the students, so I am not completely clear on why the Gazette was looking into this now. My guess is that they were looking to expose a culture of privilege in AFA athletics. Perhaps the party and the punishments were kept quiet. But the schools (somewhat new--2013) superintendent, Lt. Gen. Michelle Johnson, is committed, she says, to addressing these issues and has conveyed that message to coaches who are being asked to look more carefully at the character of recruits. Johnson is concerned that athletes are more loyal to their teams or other athletes than the schools codes and ideals. Of course the culture of the academy and military in general, I would argue, is about loyalty to ones "brothers and sisters" or immediate peers in the group. I dont find it surprising that the loyalty (to country, to fellow soldiers) that is central to military ideology has resulted in a situation such as this. There are plenty of other military scandals that reveal a culture of secrecy and privilege stemming from this version of loyalty. The question remains: will this publicity and the multiple investigations lead to an investigation by OCR? Are the academys Title IX policies and procedures part of the issue here?
Less than a month ago I wrote about the prospect of former Oregon basketball player, Brandon Austin, being recruited by a school--the third of his collegiate career. Austin started at Providence College, was dismissed from that team for sexual assault then went to Oregon where he committed sexual assault again--in the form of a gang rape with other team members--and was again dismissed. Criminal charges were not filed in either case. And now he is going to a junior college in Florida to play ball. As I noted last month he was being wooed by a school in Kansas, but that school opted not to make him an offer. Northwest Florida State College did. And administrators--unlike those at Oregon who claim ignorance--know of Austins past. And they think they can help him. Said the head coach: "We have the experience, support and resources to help Brandon get back on track towards graduating and help him be a successful student athlete on and off the court." We see professional athletes passed around teams after committing various crimes and misdemeanors. And though some of us know that this happens in intercollegiate athletics, there is less visibility. But I argue that there is more liability--for the school that takes on these athletes. Even if athletes such as Austin are not criminally charged, they have been disciplined by their schools (i.e., kicked off or suspended from teams). If the new school knows of that history and that athlete again commits sexual assault what kind of case would a victim have? It probably depends on the measures the school takes when the student arrives on campus. What kind of resources and support will Austin receive in Florida? Individual therapy? Group therapy? How is the school going to specifically address his history of sexual violence against women? Studies show that the many campus sexual assaults are committed by repeat offenders. Austin has already shown himself to be a repeat offender. Unless Northwest Florida intervenes and tries to break this pattern, I think they put themselves in danger of being partially responsible if Austin offends again.
Today a group of bi-partisan senators proposed new legislation in Congress called the Campus Accountability and Safety Act, aimed at addressing the problem of sexual assault on college and university campuses. Included in its provisions are: * a required annual survey of students at every university in America to help understand the climate of sexual violence on campuses * requirements that all campus personnel who deal with sexual violence in some way receive specialized training * a requirement that colleges and universities provide confidential advisors to serve as a resource to victims of sexual violence by helping to coordinate their support services, educational accommodations, and dealing with campus authorities and law enforcement * a prohibition on colleges sanctioning a student who reports sexual violence in good faith (such as punishing the victim for underage drinking) * requirement that the Department of Education publish the names of all schools with pending investigations, final resolutions, and voluntary resolution agreements related to Title IX * a requirement that colleges and universities use a uniform process of campus disciplinary proceedings that doesnt allow, say, athletic departments to handle sexual violence in a different way than the rest of campus * a requirement that colleges and universities coordinate with local law enforcement to delineate respective responsibilities and areas of jurisdiction Some of these provisions would codify (and thus make mandatory) recommendations contained in the White House Task Force report that came out last May, while others echo requirements in the Office for Civil Rights 2011 Dear Colleague Letter (which, unlike the requirements contained in a statute, could be easily revoked by a future Secretary of Education serving under a different presidential administration). But one additional provision of CASA is (as I told the New York Times) a potential "game changer" and that is the addition of financial penalties other than federal funding withdrawal as a tool the Department of Education can use to deal with schools that violate provisions of Title IX. This is considerably important. Because it the severity of revoking federal funds (leaving an institutions students without financial aid, most notably) the Department of Education has never and probably will never revoke federal funding over Title IX compliance. And schools know this, so the law provides little incentive for them to proactively comply. Under this new law, however, schools would have more to fear than just a scolding and a compelled promise to prospectively comply. They could potentially be fined for an amount equal to 1% of their total operating budget. I would expect the threat of such a penalty to more effectively motivate compliance than Title IXs current enforcement mechanism. The bills co-sponsors are Claire McCaskill (D-Mo.), Dean Heller (R-Nev.), Richard Blumenthal (D-Conn.), Chuck Grassley (R-Iowa), Kirsten Gillibrand (D-N.Y.), Kelly Ayotte (R-N.H.), Mark Warner (D-Va.), and Marco Rubio (R-Fla.). The fact of bipartisan support certainly increases the bills odds of passing into law, though it is also worth noting that other Title IX type laws proposed in Congress have not necessarily passed just because of bipartisan support. (Im thinking of the High School Athletics Accountability Act, the Safe Schools Improvement Act, and the Student Nondiscrimination Act). We will have to wait and see if CASA gets taken more seriously because of the high profile nature of the problem of campus sexual assault.
As we noted, George Fox University was granted a religious exemption allowing it to enforce its policy that students will be housed by their anatomical sex. But the case for the transgender student who is asking to be housed with other male students is not over. Even though the university is now exempt from a Title IX lawsuit over this, the Justice Department is looking into whether the universitys housing policy violates federal housing laws banning discrimination. We were pleased to see our friend and colleague Jennifer Levi, who is the director of the Transgender Rights Project for GLADD, weigh in: “What we’ve learned in the few cases that have gone forward is that the only humane and consistent way to determine a person’s sex is based on their lived experience as male or female, that any other approach, whether anatomy or chromosomes, will discriminate against some people." George Fox did change its policy to say that it would house students based on anatomical sex rather than birth sex (the original policy). As I already noted, this is both a very conservative and burdensome standard. And I have a hard time believing that they will start to check the anatomy of every student to make sure he or she is housed correctly. But if they do, they could call on the IOC and IAAF for some advice. Those organizations have a long history of trying to determine gender based on anatomy. Of course, even those groups have given that up and are now using (in equally problematic ways) chromosome testing.
Weve blogged recently about a handful of religious schools -- namely George Fox, Simpson, and Spring Arbor universities -- that have been granted an exemption from complying with Title IXs application to transgender students. This post is intended to provide more background and context for the process and scope of Title IXs religious exemptions more generally, which is something that until now has not really come up a lot -- at least since weve been blogging. First, as I mentioned in my George Fox post, the basis for the religious exemption is contained in the statutory text of Title IX. See 20 U.S.C. 1681(a)(3) (exempting "any educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization"). Title IXs implementing regulations, promulgated in 1975, also acknowledge the religious exemption and require institutions seeking the exemption to file a statement with OCR "identifying the provisions of this part which conflict with a specific tenet of the religious organization." 34 C.F.R. 106.12. The Department of Educations Office for Civil Rights requires educational institutions to submit paperwork (called an "Assurance of Compliance") when they receive federal funds, promising that they will comply with Title IX and the other civil rights law that are conditioned on federal funds. In 1977, OCR (which was then part of the Department of Health, Education, and Welfare) published instructions for submitting the assurance. Contained in that document were specific instructions for applying for the religious exemption -- included there because OCR contemplates that requests for exemption will be filed at that time, though that is not a legal requirement and institutions can apply for the exemption at any time. These instructions clarified three types of religious institutions that are eligible for the exemption -- criteria that OCR still uses today: 1. A SCHOOL OR DEPARTMENT OF DIVINITY -- meaning, an institution that trains ministers and other members of the clergy, like a seminary. This category of exempt-eligible schools seems influenced by and consistent with, the recognized doctrine of "ministerial exemption" from civil rights laws. The First Amendments protections of freedom of religion limits the degree to which government can interfere with such core church functions as hiring (and here, training) personnel that are integral to the practice of religion -- like clergy and other religious leaders. 2. AN INSTITUTION THAT REQUIRES ITS FACULTY, STUDENTS, OR EMPLOYEES TO BELONG TO THE RELIGION OF THE ORGANIZATION BY WHICH IT CLAIMS TO BE CONTROLLED. My impression of this category is that it borrows from the legal distinction in public accommodations law between organizations or establishments that are open to the public and those that only open to members -- the latter receiving more latitude to exclude people in ways that would otherwise be unlawful discrimination. In general, the justification for this type of exemption is, again, rooted in the First Amendment -- the idea being that forcing an organization to accept as members people who do not adhere to its beliefs interferes with the practice of religion. Notably, however, religious undergraduate institutions are already permitted to discriminate on the basis of sex in admissions by virtue of being private. So this category contemplates allowing religious institutions to take that discrimination one step farther: to discrimination in some way in the manner that students or faculty are treated, rather than whether they are eligible to be admitted or hired. 3. An institution whose charter, catalog, or other official publication contains an explicit statement that it is CONTROLLED BY A RELIGIOUS ORGANIZATION OR AN ORGANIZATION THEREOF OR IS COMMITTED TO THE DOCTRINES OF A PARTICULAR RELIGION, and that members of its controlling body are appointed by the controlling religious organization, and that it receives a significant amount of financial support from the controlling religious organization. This category thus seeks to differentiate between private institutions that have a religious affiliation and tradition (a category that, as Kris pointed out, could include virtually all private colleges founded before 1900) and institutions that are actually subject to religious control -- the latter requiring (a) an express statement of that control by or adherence to that religion; (b) trustees or regents, etc. who are appointed by a religious organization; and (c) financial support from that religious organization.Reportedly, all three educational institutions that have received religious exemptions in recent weeks -- George Fox, Simpson, and Spring Arbor universities -- qualified for the exemption under this third category. George Fox --whose religious control I questioned in an earlier post -- is in fact controlled by the Northwest Yearly Meeting of Friends, which appoints four of its seven trustees. Also notable is that it appears OCR is open to revisiting the question of religious control in the event of a challenge, as the Assistant Secretary provided assurance that the agency would "potentially reach out to verify further whether a school is controlled by their stated religious organization" if it receives a complaint for something potentially subject to an exemption that has been granted. In addition to being controlled by a religious organization, the exemption only applies to institutions whose religious tenets conflict with some aspect of Title IX compliance. Historically, the most common example of such conflict related to regulations prohibiting discrimination on the basis of pregnancy. For example, one exemption considered in 1987 congressional report described an exemption for a school whose religion prohibited unmarried pregnant student to continue to live on campus, or to have unmarried female employees serving as role models for female students. Other early exemptions related to sports, physical activity, and modesty, such as an exemption that would allow a school to prohibit "mixed swimming" and another to potentially restrict the athletic opportunities of female teams by sending home opponents who show up in immodest uniforms. Recent requests for exemption have focused on Title IXs application to transgender students, accommodation of whom would require compromise of the belief that God created man and woman to procreate heterosexually. For example, Simpson University stated its belief that it is sinful to "construct ones own sexual identity by medically altering the human body, cross dressing, or similarly practicing behaviors characteristic of the opposite sex." Because their religions do not validate transgender identities, Simpson and the other exempt universities sought permission to exclude transgender students from gender-consonant housing so as to avoid sinful "cohabitation" between members of the "opposite sex." On related grounds (i.e., opposition to the mixing of "different" sexes) they received permission to exclude transgender students from locker rooms, rest rooms, and athletic teams that dont accord to their assigned sex at birth. In conclusion, it appears that OCR does use published criteria to isolate those religious institutions that are eligible for the exemption by virtue of being subject to a religious organizations control. It also appears to have required an articulated conflict between Title IX compliance and the institutions faith. Personally, I dont agree that Title IX should have provided educational institutions that accept federal funds and which already have permission to ignore Title IX when it comes to admissions so much latitude to discriminate. Thats an awful lot of having ones cake and eating it too. But after digging into the matter a little deeper I am at least reassured that OCR is applying the exemption in a manner consistent with the text of Title IX.
Spring Arbor University and Simpson University have both asked for and been granted Title IX exemptions based on religious grounds from the Department of Education. This means that the Michigan and California schools will be allowed to discriminate on the basis of gender identity. George Fox, as we have written about, also received a religious exemption after asking for one that would allow them to deny housing (all of which is sex segregated) to a transgender student. Are we seeing a pattern here? The DOE is saying there is very little it can do about religious exemptions. But what standards are being applied when assessing a request for religious exemption? A representative from Spring Arbor University has said that the school is "Christ-centered." But what does that mean? They say they are affiliated with the Methodist Free Church. But what kind of affiliation creates a case for exemption? Spring Arbor has already dealt with this issue after keeping from the classroom a professor who transitioned while working for the school. There was an EEOC complaint that the university settled in 2007 (unclear what the settlement entailed). Simpson is affiliated with the Christian and Missionary Alliance. The latters website lists the school as one of six "education centers." I imagine the other schools will also be asking for exemptions. The term affiliation needs to be clarified--what is the difference between affiliation and control?--as do the criteria for religious exemptions--or at least made more transparent.
Two University of Texas football players were arrested this week on various charges related to a June assault of a female student in the UT dorms. The woman reported the assault immediately. Police found text messages between the two men who were trying to get their respective stories straight. There is also at least one photo taken during the assault. Not a great time for such attention for both first-year football coach Charlie Strong and embattled president Bill Powers. Strong suspended both players for an indefinite time period and there is a school investigation underway and expected to be completed before the end of the summer. It seems from here that UT is taking the right steps. Investigations were started and will completed in a timely manner. The players were suspended from the team. I suspect the conclusion of the schools investigation will result in protections afforded to the victim. No word on what services the university has offered her in the wake of the incident or whether the men were allowed to stay on campus while both investigations were pending. This case is a contrast to FSU which waited a significant amount of time before investigating, which never disciplined quarterback Jameis Winston. And hopefully UT will take a lesson from the Arizona State case where the university allowed back in the dorms a football player who had been kicked out for aggressive behavior against women when he was attending a summer program. When he returned in the fall, he raped a student. The university settled for $850,000 in 2009--five years after the incident. Obviously this is just the start. Criminal proceedings will follow as well as university sanctions. But UTexas is on the right path at the moment with both athletics and administration working together.
Today it was reported that Jonathan Waters, the director of Ohio State Universitys marching band, was fired for tolerating sexual harassment among the students in the band. In response to a parents complaint about the bands secretive and sexualized atmosphere, the University conducted an internal investigation into the matter and produced a report detailing its findings. Among them, the investigation revealed that Waters and other staff members supervised an annual tradition that involved students marching into the football stadium in their underwear at midnight. Another set of findings involved the sexualized nicknames assigned to band rookies by the upperclassment, which Waters knew about and sometimes used. The findings also detailed sexualized content in band newsletters, songs, and various tests, challenges required of rookies that Waters knew or should have known was going on. OSU concluded based on these findings that the band consisted of a sexualized and hostile environment, that Waters knew about and did not take adequate steps to prevent. Acknowledging its duty under university policy and Title IX, the university terminated Waters and vowed to realigm the band with the Universitys mission through stronger oversight, policies and procedures. This seems to be a good example of proactive behavior on the part of a university to uncover and respond to Title IX problems.
In April, I wrote about the expose into the police handling of the investigation into allegations of sexual assault against quarterback Jameis Winston. In that post, I noted the lack of effort on the part of the university to address the issues, seek accountability, and make efforts at changing the culture and policies at FSU. In a move that flies in the face of my theory that some schools are making changes to sexual assault policies and procedures for the purpose of PR, FSU announced this week that it would be hiring a Title IX director and two sexual violence coordinators. My surprise is two-fold. One, an announcement from a university in the summer generally gets less notice and two, the hirings are being spun as proactive: _Florida State is not waiting for the federal government to complete an investigation into the universitys responses to sexual assaults before it adds additional experts to the staff and adopts a new model for making students aware of their responsibilities for maintaining a safe campus._ They have waited a year and a half, however, after the initial triggering event. Winston allegedly assaulted a former FSU female student in December of 2012. The university is under new leadership which might be part of the impetus. An interim president took over in early April. Of course, the investigation will likely result in other necessary changes.
Late last week the University of Connecticut announced it had settled the lawsuit brought by five current and former female students. The women were accusing the university of mishandling their respective sexual assault cases. The $1.3 million settlement brings with it a no guilt finding and the withdrawal of the names of several of the women who had also filed a complaint with OCR. There are more names on that complaint, which continues to be investigated. The settlement will be divided among the five women with each receiving a different amount. What we found interesting was that the bulk of the money, $900,000, will go to the last woman who joined the lawsuit, a former student who was a first-year student at the time of her assault. She was also a goalie on the hockey team who was dismissed from the team after reporting she was raped by a member of the mens hockey team. Her coach, who left the team at the end of this past season, said she was not "stable enough" to play on the team. The university has said it was the goalies knee injury that lead to her release from the team. Obviously the amounts each woman will receive were carefully negotiated, but we have not heard the legal rationale for the large sum awarded to her specifically. It could be because of the loss of the opportunity to play college hockey, though there is no obvious monetary value there and the university did refund her tuition and expenses from the time she spent at UConn.
After being granted a religious exemption that allows the university to not house transgender students based on their gender identity, the school has updated its policy as it relates to this issue. As Erin noted the other day, the exemption itself is a little suspect, and the new policy may be new to GFU, but it is hardly an update. The new policy states that transgender students can be housed based on their gender identity if they have had sex reassignment surgery, specifically genital surgery. This is a highly restrictive policy, one that we have seen at the most competitive levels of sport (i.e., the Olympics and other international sport organizations) but one that has received considerable critique and certainly has no rationale when applied to students. The World Health Organization has expressed its disdain for policies that require surgery in order for transgender people to receive rights. Surgery is one, expensive and two, not always the desired path for many. Additionally, the health insurance GFU offers its students does not cover medical expenses related to gender transition including hormones and surgery.
Walt Bogdanichs article this weekend on the case of Anna, an undergraduate at William Smith College, who was sexually assaulted her freshman year likely raised awareness of campus sexual assault and shocked many readers. The details of Annas story of her assaults and how the school handled them are disturbing. They are not unusual, though. And unfortunately, though horrifying, they are not shocking to many of us who have been talking about this issue for years. There are almost 70 open investigations into schools handling of sexual assault. Schools are added weekly. Anna mentions that one person on her panel questioned her about how she conducted herself at the party at which she was assaulted making her think that administrators are a little out of touch with student life on their campuses. What this suggests is more than just that some administrators dont know that grinding is the preferred form of dancing, but that they are not aware of the culture on their campuses. Changing campus culture has been a focus of the movement. But is it happening? The Hobart and William Smith Colleges case points to no. Again, the story is not shocking, but it is dismaying. Because it looks like the school was more concerned with handling this quickly, than with handling it properly. Members on Annas panel were not trained. They lacked information about sexual assault and their own school culture; they asked irrelevant questions. The hearing was convened before the results of Annas rape kit were known to all. They did not protect her anonymity. She had no advocate with her. A 60-day window is provided for investigations; this one took less than two weeks. This is not simply an unfortunate situation. This is a situation born out of public image. The student activism on this issue and the government response has put every school on notice. And public images--something I myself have said to media outlets is a motivator for compliance--are suffering. Groups like Ultra Violet are also pushing the public image aspect as they seek greater transparency about the number of sexual assaults on campuses and how they are handled. But hearing about Annas case has made me wonder if public image concerns are overriding actual changes to campus culture and policies and procedures. But the image versus compliance issue was most palpable when I read this: _College administrators have their own incentive to deal with such cases on campus, since a public prosecution could frighten parents, prospective students and donors. Until last year, Hobart and William Smith’s chief fund-raiser also helped oversee the school’s handling of sexual assaults. The two functions are now separate._ If a school is approaching sexual assault as a PR issue, there will be no compliance, no change in culture.