- 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
- George Fox University's Religious Exemption From Title IX Compliance
- Twice accused athlete going to third campus?
- Krakauer digging into Montana case
- Lawsuit against University in Denver
- USC announcement inspires complaint
- What are the Title IX Implications of USC's 4-Year Scholarship Plan?
- Clery Act expansion
- Investigation Opened at James Madison University
- Girls' Charter School Wins Preliminary Injunction to Remain Open for Now
- Settlement over softball fields
- TIME focuses on campus sexual assault
- Five More Universities Under Investigation
- Student Complains that Brown Did Not Adequately Punish Rapist
- Tufts revises and resubmits
- Prom and yearbook season consternation
- Court Dismisses Accused Student's Title IX Claim
- Naming names: Transparency and safety on campus
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.
George Fox University is a Christian institution in Oregon that was founded on Quaker principles. In April, it denied a transgender student named Jayce M. the right to live in on-campus housing consistent with his male gender identity, offering him instead the opportunity to live with other men in off-campus housing if certain conditions were met. With the help of attorneys, Jayce filed a Title IX complaint with the Department of Educations Office for Civil Rights, arguing that the decision discriminated against him on the basis of gender identity. The complaint seemed poised to allow OCR the opportunity to give effect to the broad, trans-inclusive definition of sex discrimination that it has lately been espousing, such most recently in its guidance on sexual assault. But instead, OCR has granted a religious exemption to George Fox that has effectively immunized the institution from Jayces Title IX challenge. What is the legal basis for a religious exemption from Title IX? The statute itself exempts "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." 20 U.S.C. 1681(a)(3). This effectively creates two conditions: (1) that the school actually be controlled by a religious organization, i.e., not just a private school with a certain religious tradition; and (2) a showing that Title IX would apply in such a way that is inconsistent with the organizations religious tenets. Additionally, Title IX regulations require institutions 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. Thus, the exemption is narrow in scope -- in that it only applies to the aspects of Title IX for which the institution can articulate a conflict with religious tenets -- and narrow in application -- in that it only applies to institutions that are run by churches, not just that happen to have a religious outlook or tradition. Both limitations are important to ensure that Title IX doesnt contain a giant loophole that offers any private school a justification for using federal money in the service of discrimination that would otherwise be prohibited by law. Interestingly, when I looked up the business status for George Fox University, I learned that it is incorporated as "public benefit" non-profit corporation, and not a religious non-profit corporation (which is also a type of corporation that exists in Oregon). In other words, I am having trouble confirming that George Fox University, despite its Quaker heritage, is actually controlled by a religious organization as the statute requires. (In contrast, when I went onto Notre Dames website, it took me two seconds to find the name of the religious organization that controls the school.) It is also interesting to note, as this article does, that GFU applied for the religious exemption after Jayce had already applied to live in male housing. One would think that if Title IXs application to transgender students conflicted with some fundamental tenet of Quakerism, the institution would have applied for the exemption in advance, in the manner contemplated by the regulations. Applying for it in retrospect gives the appearance of a defensive move. Just recently, the Supreme Court ended its Term with a decision that allows religious colleges to opt out of the requirements of the Affordable Care Act to make coverage for birth control available to employees and students. If this decision emboldens more religious institutions to claim exemptions from other laws as well, like Title IX, it will be increasingly important for OCR to carefully scrutinize all applications for religious exemption to ensure that both requirements -- the religious tenet conflict AND control by a religious entity -- are met.
The campus sexual assault survey administered by Senator Claire McCaskills office (more on the survey shortly) found that 22 percent of schools responding said that their athletic departments handle sexual assault accusations against their student-athletes. This is obviously a problem (and I suspect that it is larger than the survey reports) as evidenced by many cases (University of Montana, University of Iowa, University of Michigan, University of Missouri, to name a few) we hear about. The cover-ups, of course, happen both with assaults committed by athletes and non-athletes. The survey results point to the need for every case to be handled the same way by the same committees/commissions/boards. But the somewhat separate issue not addressed is that the cover-ups among athletic departments have lead to student-athletes being dismissed as quietly as possible--usually suspension from team and departure at the end of the semester--sometimes facing no formal sanctions from the institution. Where do they go? Some of them go to other schools and continue to play sports--and commit sexual assault. As we wrote about earlier this summer, Brandon Austin started playing basketball at Providence College. Accused of sexual assault but not criminally charged, he transferred to Oregon after being suspended from the PC team. In June he and two of his teammates where forbidden from returning to school for ten years--again because of sexual assault charges. He has been looking at a community college in Kansas which is known for feeding basketball players to DI schools. But as more attention is drawn to these cases, these covert transfers might become less common. One of the other suspended Oregon players had intended to go to St. Johns; but the school has decided not to recruit him.
We have covered the cases and investigations into sexual assault at the University of Montana, a place TIME referred to as a rape capital. One of the early posts was from Erin and about the accusations against members of the football team. The football coach and AD were fired. In this post Erin mentions additionally that a restraining order was taken out against the quarterback. It is this case that is of interest to _Into the Wild_ author Jon Krakauer who has asked for records related to the case be released. After our post about the restraining order, it seems that the quarterback, Jordan Johnson, was found by the university to be guilty of rape and was expelled. Except he wasnt expelled. He was suspended from the football team and reinstated in time to help the team to a 10-3 record in 2013. He was acquitted by a criminal court. Krakauer wants the records from the university hearings, but because they are student records, the university will not release them. He has said failure to release the records of the education commissioner (he is looking for information about how the expulsion order was reversed) is a violation of state open record laws and the state constitution. It will be interesting to see if he can get that information and, of course, what he does with it.
A former student at University of Denver is bringing a lawsuit against the school for violating Title IX in the ways they handled her reported sexual assault. The details, provided by the woman, seem--though awful--far less complicated than other cases we have seen in the past few years. She believes she was drugged at a party and then raped at a students apartment. She reported the rape to the police as soon as she got back to her dorm. She was taken to the hospital. The school launched an investigation (the police investigation did not lead to charges). It is at this point that the victim feels things were handled improperly. She reports not being given all the information--in writing--about how to proceed during the disciplinary hearing. For example, she did not know she did not have to be in the room with her alleged assailant during the hearing. A school representative claims that the lawsuit was motivated by the fact that the victim did not like the findings of the disciplinary hearing. The board found that the student did not realize he was forcing sex on the victim. The finding does seem kind of "off" given the physical evidence. I do not know how DU defines consent, but it seems hard to believe someone who has been drugged can give consent. Im not sure though, given these early details, how much of a factor the finding is in this case.
Someone has challenged the University of Southern Californias recently announced plan to provide four-year scholarships to football, and mens and womens basketball players. As Erin noted the other day, the disproportionate benefit to male student-athletes is likely a Title IX violation. And a properly signed complaint (we dont know by whom at this point) to OCR is challenging the new policy and pointing out other Title IX violations at the school including: less pay for head and assistant coaches of womens sports; fewer womens coaches, fewer opportunities for female student-athletes, inequitable funding of womens sports; inequitable funding of recruiting. Differences in funding and salaries and positions do not always equal Title IX violations. If athletic departments can justify the differences and prove they are providing a similar quality of experience to men and women, this is enough. That being said, in addition to the likely problems with four-year scholarship distribution, the differential between average salaries between coaches of mens and womens teams at both the head and assistant coach level is startling. Head coach average salary: $647,202 (M) $129,552 (W) Asst coach average salary: $200,871(M) $45,629 (W) We dont know whether OCR will visit the LA campus to investigate. Its possible they will ask USC to do its own study and address the disparities and report back. I do believe they will have to explicitly address the scholarship issue and it would be nice if we could see some progress on salary equity.
On Monday, University of Southern California announced that it will offer four-year scholarships to all scholarship athletes in football, mens basketball, and womens basketball. This modifies the universitys existing practice of offering all scholarships on a one-year, renewable basis. Multi-year scholarships have only been permissible under NCAA rules since 2012. The NCAA actually banned them in 1973 as a means to promote competitive equity by leveling the playing field for schools that cannot afford to take that kind of risk. But concerns for athletes welfare and education motivated the NCAAs change of heart, and reportedly, USCs as well. An athlete with a four-year scholarship has "job security" if you will -- they cannot lose their scholarship status as long as they continue to follow team and NCAA rules. An athlete with a renewable scholarship has to worry every year that their coaches will replace them due to poor performance or injury -- leaving them to either figure out how to cover tuition or else drop out of school altogether. Multi-year scholarships are thus quite beneficial to athletes. But like any benefit, they must be allocated on a gender-equitable basis in order to comply with Title IX. Title IX regulations specifically address athletic financial aid at 34 C.F.R. 106.37(c). This provision requires that aggregate dollar amount allocated to athletes of sex be proportionate to the ratio of athletes of each sex -- i.e., if 50% of the athletes are female, they should receive 50% of the overall available athletic financial aid. Yet this provision is likely unaffected by an inequitable distribution of multi-year scholarships versus one-year renewables. This is because a multi-year scholarship paid out over the term of years does not increase the allocation of athletic financial aid in a given year (one-fourth of a four-year scholarship and a one-year scholarship are the same in dollar amounts). But elsewhere, at 34 C.F.R. 106.41(c), the Title IX regulations mandate that athletic opportunities receive equal treatment based on sex. For example, under this provision, it would be unlawful to provide higher quality equipment or facilities to only mens sports. "Tiering" is still permissible -- a school does not need to provide the same benefits to all sports -- but there must be gender equity within the tiers themselves. In my opinion, a school that provides four-year scholarships to 98 male athletes (85 football scholarships, 13 basketball) and 15 female athletes violates 106.41(c) -- the same way that it would violate Title IX to provide any other perq on this inequitable basis. If this is hard to understand, imagine that USC provided laundry service to 15 female athletes and 98 male athletes -- a clear violation of equal treatment. The "job security" aspect of a four-year scholarship relative to a one-year renewable is just another characteristic of how athletes are treated, similar to laundry service. Moreover, because the regulation says that the Department of Education will enforce this provision by considering a number of enumerated factors "among others," it is not relevant that 106.41(c) does not expressly mention multi-year scholarships a factor of equal treatment. Finally, it will not be sufficient for USC to justify its policy as only pertaining to revenue-producing sports. In 1974, Congress considered an amendment to Title IX that would have exempt revenue-producing sports. But the fact that this amendment failed to pass underscores the laws agnosticism when it comes to revenue. Neither Congress, the courts nor the Department of Education have ever endorsed a double-standard for revenue and non-revenue sports. It is good that schools are being responsive to concerns about athlete welfare and education. But the law requires that they do so on a gender-equitable basis.
Yesterday the Department of Education announced a new rule to the Clery Act. It includes the addition of national origin and gender identity to the definition of a hate crime. It adopts the FBIs definition of rape, which is often broader than that found in state law and does not consider gender as part of the definition. Another change, one that should hopefully quiet the recent backlash centered around alleged violations of the rights of the accused, is a provision that allows both the accuser and accused to pick an adviser of his/her choice to attend campus hearings. The institution can still dictate how that adviser may be used and involved, but this means that theoretically both parties could have a lawyer present. Ensuring greater confidentiality for victims who may be seeking help but do not want to go through campus or legal proceedings is also part of the new rule. And finally, the new rule calls for broader reporting of campus violence. Stalking, domestic violence, and date-related assault. These were proposed as part of the governments commitment to making schools more accountable for campus climate and for greater transparency. The new rule was published today in the _Federal Register_ and public comments will be accepted until July 21.
The Department of Education recently opened an investigation into allegations that James Madison University violated Title IX by failing to adequately punish three male students found responsible for sexual assault. The university has reportedly subjected the three to a ban from campus that kicks in _after _their graduation, raising serious questions about with it has satisfied its obligation under Title IX to take reasonable steps aimed at preventing the reoccurence of sexual assault. In January of this year, the victim reported that the three male students took advantage of her intoxication while they were all away together for spring break the year before. They videoed themselves groping her and trying to take off her bathing suit and then later circulated the video -- which reportedly shows the victim saying "this isnt okay; this isnt a good idea" -- around campus. A judicial officer found the men responsible and, as punishment, prohibited them from taking part in commencement or returning to campus as alums. Yet, they were able to obtain their degrees. The victim, meanwhile, has withdrawn from the university.
A case being litigated in a federal district court in Delaware is raising interesting questions about Title IXs application to charter schools. Last November, the Delaware Department of Education decided not to renew the charter for Reach Academy for Girls, which would have the effect of closing the states only public single-sex school for girls. Reach students sued the state, arguing that the schools closure amounted to a violation of Title IX and the Constitutions Equal Protection Clause, because the state continues to charter, and thus fund, the all-boys Prestige Academy. This imbalance is further underscored by the fact that Delaware law now prohibits issuing new charters to single-sex schools; only existing charter schools may continue to apply for renewal. So for the plaintiffs, Reach is their only opportunity for single-sex education. In January, the court issued a preliminary decision that denied the states motion to dismiss and issued a preliminary injunction. But the time constraints of enrollment had required the court to make that decision quickly, so it promised to provide fuller explanation in a later opinion, which it issued recently. The courts recent opinion reaches the same conclusion regarding the plaintiffs likelihood of success on the merits, a key factor to obtaining a preliminary injunction, but reveals more of its reasoning regarding Title IXs application to charter schools. The regulations that interpret the statute contain the following provisions that relate to charter schools:
(c) Schools. (1) General Standard. Except as provided in paragraph (c)(2) of this section, a recipient that operates a public nonvocational elementary or secondary school that excludes from admission any students, on the basis of sex, must provide students of the excluded sex a substantially equal single-sex school or coeducation school.
_See_ 34 C.F.R. 106.34(c). So, the regulation requires a funding recipient that operates a school for one sex to also operate a "substantially equal" single-sex or coeducational schools for members of the other sex. _But _it exempts nonvocational charter schools from that requirement. The Delaware DOE relied on the exception provision as the basis for its argument that Title IX does not apply to its decisions relating to the issuing of charters. But the court disagreed, reasoning that the exception provision applies only to the charter school itself. The exception means that Prestige Academy, for example, does not have to also operate as a school for girls. The state of Delaware, on the other hand, is still required to comply with (c)(1), the "General Standard" provision that requires "substantially equal" coed or single sex alternatives. But does Delaware violate that provision simply by failing to provide an all-girls charter school? After all, the court pointed out, the requirement is to provide a substantially equal single sex school _or_ coeducational school to students of the excluded sex. The regulation does not require both, and thus seems to contemplate that coed alternatives could be "substantially equal" and thus compliant with the Title IX regulations. That question is not addressed at this preliminary stage of the litigation. Its a question that might not be necessary, to address, however, given that the plaintiffs other argument was that Delawares failure to charter an all-girls school violates the Equal Protection Clause. The courts Equal Protection Clause analysis is not bound by the particularities of the Title IX regulations. It could ultimately conclude that the states offering a single-sex school for boys but not for girls is unlawful, regardless of whether the coeducational alternatives are just as good. Because even if the coed alternatives are deemed just as good, they are still _different _from a single-sex environment. Which means that the boys of Delaware who want a single sex experience can have one, but not the girls. The courts preliminary Equal Protection analysis suggests that the plaintiffs are likely to prevail on arguments along these lines. Finally, the court seems to address the point I was most worried about when I blogged about this case back in January, which is the fact that Delaware dropped Reach Academy _for a reason_ -- it had financial problems and its students did not do well on statewide tests. I argued that renewing the charter of a "failing" girls school is not an alternative to discrimination, because it still perpetuates separate-but_-un_equal. However, the court points out that Reach seems to be pulling itself together. Its facilities and enrollment have improved, and it is no longer on probationary status with the state. The court concludes its opinion by suggesting, "Now may be a particularly auspicious moment for Reach to turn its academic performance around. At minimum, another year of operations will provide additional data that should enable all interested parties to make an accurate assessment of Reachs program and competency." So Reach will continue to operate, at least for now. Litigation is likely to continue as the state can theoretically appeal or seek to dismiss the case on other grounds, while the plaintiff can move for an injunction of permanent nature. Reach Academy for Boys and Girls d/b/a Reach Academy for Girls v. Delaware Department of Education, 2014 WL 2445804 (D. Del. May 30, 2014).(2) Exception. A nonvocational public charter school that is a single-school educational agency under State law may be operated as a single-sex charter school without regard to the requirements in paragraph (c)(1) of this section.
A class action lawsuit filed just over a year ago in Batavia, New York has been settled. Filed by parents of softball players over the poor conditions of the softball field, the school district--which claims that improvements to the softball field were included in the list of capital projects before the lawsuit was even filed--will complete renovations by next spring. The improvements include permanent dugouts, a scoreboard, and outfield fencing.
The May 15 issue of TIME magazine devotes considerable attention to campus sexual assault and the reaction to the activism that has resulted from increased awareness and demands for justice. Alas, you cannot access all the articles online without a subscription. But the magazine addresses many aspects of the issue. In the piece "The Sexual Assault Crisis on American Campuses," (subscription needed) Eliza Gray points out to anyone who does not yet know that the rate of sexual assault on college campuses is much greater than previously reported. (Many people knew--anyone who ever attended Take Back the Night knew the stats--fewer people paid attention.) But the idea that a school with 80 reported sexual assaults a year, like University of Montana, which opens the story, is a "rape capital" and somehow unusual is a quickly falling myth. Another piece in the issue, penned by attorney Gloria Allred, is calling this current moment of activism against campus sexual assault "one of the most important civil rights movements of our time." I agree. It has been fascinating and inspiring to watch from the periphery this widespread movement of young women, especially as some of us who are a little older continue to argue that we are not in the era of postfeminism and that we still need to be actively engaged in fighting gender, race, class, age, size, ability discrimination. The president of Dartmouth College, which has been one of the hotbeds of activism, also wrote a piece for the issue. Philip Hanlon focused on prevention and intervention. It is a brief piece in which he mentions the establishment of the Dartmouth Bystander Initiative meant to educate the campus community and the upcoming conference Dartmouth is hosting in July which will bring together leaders across the country to talk about prevention. Senator Kirsten Gillibrand, who recently made a push to fund more employees at the Office of Civil Rights for the purpose of investigating complaints around campus sexual assault, added to the issue by advocating for more reporting and greater transparency. Joe Biden wrote a little blip about putting the force of the White House behind this initiative. Actress Mariska Hargitay writes about ending the violence by shifting blame off of victims. In a one-of-these-is-not-like-the-others moment, Christina Hoff Sommers of the American enterprise Institute, ever the defender of the boys, is worried about what she sees as the mounting false accusations against college men and the "kangaroo court justice" she believes they are subject to. She gives a list of seven men who are challenging the rulings of their respective schools against them. She notes that it is only a partial list. I wonder how that list compares to a list of women whose reports were ignored or delayed or whose assailants were never or only marginally punished. There is no perfect system. The systems that exist right now amidst this rape culture that Sommers seems to sneer at undoubtedly favor men. Every man? No. As a group? Yes. Are there systems to address false accusations? Yes. The men who have taken their cases to the legal system are utilizing them. In a similar vein, Matthew Kaiser, a defense attorney who has represented several of the men challenging the punishments from their institutions, writes that many of the consent laws are unfair to men. He focuses on the role of alcohol and the ambiguous situations created when individuals have been drinking. Like Sommers, he takes the few cases he has seen and makes generalizations that cannot be supported. He also suggests that the Department of Education is compelling schools to automatically take the side of a female victim or face sanctions. I think the hundreds of women who have filed complaints would take exception to this notion. Caitlin Flanagan, who recently wrote a very good piece about fraternities for the _Atlantic_, calls for more transparency about and attention to the sexual assault that occurs at fraternities. In a disturbing example of exactly what rape culture is, Flanagan reports that built into fraternity budgets are the costs of insurance claims made against fraternities every year for sexual assault. She also points out of one the gaps in the recently released federal guidelines: there is nothing that mandates the public reporting of where assaults take place, thus no way to tell the campus community which fraternities have a problem with sexual assault.
The Department of Education announced today that it has opened five additional investigations into campuses policies and practices surrounding sexual violence, bringing to 60 the previous tally of 55 that had been announced by the Department earlier this month. The five institutions are: University of Akron, the University of Alaska system, University of Delaware, Elmira College in New York, and Cisco Junior College in Texas. Huffington Post had earlier reported about a complaint filed about Akron, which contained allegations that that its sexual assault policies were copied from another schools and, as a result, contained references to offices that did not even exist at the university. That complaint also charged the university with delay and careless investigation practices. Otherwise, we know little about the specific nature of these investigations, such as whether they were initiated by a complaint or were undertaken by the agencys own initiative. HuffPo is keeping track of all of the sexual assault-related Title IX investigations and pending complaints on a handy Google map.
Brown University student Lena Sclove filed a complaint yesterday with the Department of Educations Office for Civil Rights, accusing the institution of violated Title IX and the Clery Act by failing to adequately sanction the student who choked and raped her in August 2013, as well as other shortcomings in its response to that incident. After a disciplinary hearing held last fall, the university determined that Scloves assailant was responsible for numerous violations of the universitys code of conduct, including "sexual violence involving physical force and injury." The disciplinary panel recommended that the assailant receive a two-year suspension, so that Sclove could finish school without running into him on campus. However, a Brown official reduced the sanction to one year, and counted last fall semester towards that time. This means that the assailant could potentially return to campus in August 2014, a year after committing rape against Sclove. Title IX does not require universities to impose specific disciplinary measures on students found responsible for sexual assault. Yet it is certainly arguable that the sanction in this case was too short to satisfy the universitys general obligation to "eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects." A second allegation in Scloves complaint is that the university did not inform her of her rights to file criminal complaint as well as a student misconduct complaint. On this point, the compliance obligation is clear. According to the 2011 Dear Colleague Letter, "A school should notify a complainant of the right to file a criminal complaint, and should not dissuade a victim from doing so either during or after the school’s internal Title IX investigation." It is now up to OCR to determine whether to open an investigation into the allegations in Scloves complaint. Meanwhile Brown, for its part, has announced plans to create a sexual assault task force and to move to "a position of national leadership for prevention, advocacy, and response to issues of sexual assault."
Tufts has changed its sexual assault policies and procedures and is resubmitting them to OCR for approval. Last month, the school backed out of an agreement, they say, after being told by OCR that their policies--revised after a complaint filed in 2010--were not in compliance. The refusal to sign the agreement created quite a stir on campus and beyond when it seemed liked Tufts did not care about fully protecting its students and creating a safe campus. This sentiment is countered by Tufts administrators who say that if the shortcomings of the policies had been pointed out to them prior to the resolution agreement, the necessary changes would have been made. Now they have been made. The version Tufts is submitting to OCR now includes the addition of two staff members, training on all of the universitys campuses, and putting in writing aspects of procedure that exist but are not currently recorded anywhere. President Anthony Monaco said the revisions were easy to implement. Who is at fault here remains somewhat ambiguous. But it does not appear that both sides have greater clarity. Tufts has agreed to continued monitoring by OCR. And the universitys task force on sexual assault will continue to review policies over the summer.
We dont write about every story we hear about high school students prevented from going to the prom in the attire they want or with the date they want or students whose pictures or profiles go unpublished in the student yearbook because of expressions of gender or sexuality that schools dislike. But this story about a female student at a Catholic school in San Fransisco caught my attention for a few reasons. We generally assume that everything in San Francisco is great when it comes to expression of gender identity and sexuality. But this female student, who wore a tuxedo for her senior yearbook photo, was told her picture would not appear in the yearbook as is because she did not wear the prescribed drape mandated for female students. And so it appeared that the religious culture of the parochial school was going to trump the culture of the city in which it resides. But in a heartening moment of activism and solidarity, Jessica Urbinas classmates protested any alterations to her picture and affirmed her choices by wearing neck ties to school last week. It should be noted that Urbina wears male clothes to school daily, seemingly without any reprisal from the administration. The campaign to keep Urbina in a tux seems to have worked. The school said that the "events have sparked a campus-wide dialogue which will result in a revision of policy." Whether the school would be compelled by federal or state law to change the policy is unclear because we dont know, for example, if the school takes federal dollars which would subject them to Title IX. But no legal entities or advocacy groups have stepped in at this point--and they may not need to.
Last year we blogged about a lawsuit filed against St. Josephs University by a student who was suspended after the university found him responsible for raping another student. Among other claims, the plaintiff, Brian Harris, alleged that the universitys failure to follow its own procedure amounted to a breach of contract, and that the university violated his rights under Title IX. On Tuesday, however, a federal district court in Pennsylvania granted the universitys motion to dismiss these claims and several of Harriss tort claims as well. The Title IX claim, the court reasoned, did not sufficiently allege that the university was motivated by the plaintiffs sex in the manner that it investigated and adjudicated the accusation of rape -- the outcome we predicted in our earlier post. The breach of contract claim failed for relying on "conclusory and insufficient allegations" such as claiming that the university did not provide "fair" notice or employ "adequate" procedures rather than specifying what precisely amounted to a breach of contractual terms contained in the student handbook. However, the court did not dismiss Harriss claim against the university for defamation At this stage of litigation, the courts only inquiry is whether the plaintiffs allegations, if true, would constitute a violation of law. Harris alleged that the university defamed him by referring to him publically as a perpetrator of sexual assault while knowing this to be false. If the university produces evidence that establishes its basis for believing that to be true, then it should be able to get that claim dismissed later at the summary judgment stage. Decision: Harris v. St. Josephs University, 2014 WL 1910242 (E.D. Pa. May 13, 2014).
As I wrote yesterday, some people have begun campaigns to bring to light campus sexual assaults. The transparency at the government level with the publishing of the list of schools currently under investigation has been only part of public revelations. The campaign by Ultra Violet is one such effort. Even more grassroots are the publishing of names of rapists on their respective campuses. At Columbia, the names of alleged rapists have been written in bathroom stalls and left on fliers in the stalls. [The trustee at Occidental who wanted names would have been quite pleased with the disclosure.] The victims and their allies at Columbia have been quite vocal in their displeasure with the administrations handling of sexual assault cases. But they are not the first to publicly reveal the names of assailants. At both Brown and William and Mary, individual women who were sexually assaulted publicized the names of their attackers when their respective universities found them guilty but let them re-enroll. And students at schools including Portland State and American University are using social media to name names. Obviously there is a danger of false accusations and witch hunts. But I argue that these efforts are a result of the continued secrecy of many schools. Perhaps as schools do better investigating cases and appropriately punishing perpetrators, there wont be a need for the publishing names in order to protect others.