- Trangsender Student's Title IX Claim in Bathroom Case Is Reinstated By Appellate Court
- Updates on campus sexual assault cases: Baylor & Tennessee
- Sexual Harassment Roundup
- Oregon High School Softball Team Sues District Over Unequal Facilities
- Title IX Aside, Disciplined Students Prevail in Two Recent Decisions
- Courts Address Disciplined Students' Title IX Claims in Two Cases
- Coach Fired After Dismissing Dating Player From the Team
- North Carolina Law Causes Title IX Violation, Lawsuit Says
- Recent sexual harassment and assault cases
- More trouble at FSU
- Accused Student's Case Against Columbia Dismissed
- Department of Education Settles Athletics Complaint Against Erie Community College
- Recent transgender policy cases
- Settlement at North Florida
- Sixth Circuit Affirms Verdict Against Wayne State in Pregnancy Discrimination Case
- Field hockey coach files lawsuit & other Iowa updates
- Disciplined Student's Title IX Claim Survives Cornell's Motion to Dismiss
- Disciplined Student May Continue to Litigate Title IX Claim Against Brown
- Kent State faces lawsuit over assault cover-up and retaliation
- Patterns emerge: Baylor
- Sexual Harassment Roundup: K-12 Cases
- Patterns emerge: Tennessee
- Obama Requests 29% Increase in Funding for OCR
- Settlement in FSU case
- The latest from Iowa
Today the Fourth Circuit Court of Appeals ruled that a lower court improperly dismissed the claim of a transgender male plaintiff who alleged that the Gloucester, Virginia school districts policy barring him from the boys restroom violated Title IX. (We earlier blogged about that earlier district court decision here.) Todays decision paves a clear path for a judgment that provides permanent relief to the plaintiff in the form of a permanent injunction against the schools exclusive policy. Additionally, the court reinstated plaintiffs request for a temporary injunction that will allow him to use the boys bathroom while the case is still pending. The plaintiffs central argument is that Title IXs ban on sex discrimination includes discrimination that targets transgender students by treating them differently from other members of their affirmed gender. In support of this argument, he pointed to a 2015 opinion letter by the Department of Education that contains this interpretation. But the district court refused to give weight to this opinion letter because in the judges view, it conflicted with a provision of the Title IX regulations that permit schools to offer separate bathroom facilities for members of each sex. The appellate court explained it is a settled matter of administrative law that when an agencys regulation is ambiguous, courts should defer to the agencys own interpretation of that regulation unless that interpretation is plainly erroneous. It held that Title IXs regulation permitting separate bathrooms for each sex is ambiguous with respect to transgender students, as "sex" could be understood to refer to biological sex (the school districts position) or to a broader definition of sex that incorporates gender identity. In light of these multiple plausible interpretations of the regulation, the court reasoned, the district court should defer to the Department of Educations interpretation of that regulation, which would require school to permit transgender students to use the facility that is consistent with their gender identity rather than their birth-assigned sex. Underscoring this conclusion, the appellate court determined that the Department of Educations interpretation was not plainly erroneous because it is consistent with the definition of sex that was prevailing even at the time the regulations were promulgated, a definition that incorporated consideration of various physical, psychological, and social aspects of sex and gender. The appellate court therefore concluded that the plaintiffs claim should be reinstated. This means that the case returns to the lower court to continue the litigation process as if it had not been dismissed. The plaintiff can also try again to get a preliminary injunction that would provide immediate access to boys restroom while the case is pending. Notably, while the plaintiff asked the court of appeals to assign the case to a different lower court judge on remand (as issue we blogged about earlier, here), the appellate court refused to take what it considered to be an "unusual" step. This decision will likely have an impact outside the context of this plaintiff and the public schools in Gloucester, Virginia. Most directly, it could affect the political discourse in the wake of a spate of new state laws targeting transgender individuals right to use the bathroom consistent with their gender identities. Many have pointed out that these state laws jeopardize the federal funding for public schools and state universities who can no longer comply with Title IX and state law. Some politicians have pointed to the district court decision that was overturned today as evidence that those state laws and Title IX did not conflict. But todays decision affirms that Title IX means what the Department of Education says it means, and that means, schools that restrict transgender students bathroom access are not in compliance with Title IX.
Two weeks ago, a lawsuit was filed against Baylor University by one of the victims of already jailed former student-athlete Tevin Elliot. The victim alleges deliberate indifference on the part of the university. Baylors problems with athletes committing sexual assault were documented in an Outside the Lines, and through there is no telling what evidence will be brought into the courtroom, the fact that people who work(ed) at Baylor talked about the multiple complaints against Elliot and the denial of services to the victim do not bode well for the university. Also, it is this victim whose case resulted in Elliots incarceration. I predict a settlement in which Baylor admits no liability and makes a statement about settling to avoid lengthy litigation with its attendant costs. (I wrote about the Baylor situation earlier and that post includes a link to the OTL story.) Last week, local police in Waco arrested former Baylor football player, Shawn Oakman and charged him with sexual assault. Oakman is entering the NFL draft this spring and was expected to be a middle round pick; there is no telling how this arrest may impact his draft standing. The police were also seeking to access his cell phone and DNA. The alleged incident occurred in early April according to the victim, a female graduate student at Baylor. So this case is not actually related to the lawsuit against Baylor or the reporting that OTL did. It is, of course, related to the culture of privilege and sexual violence that exists in the football program. Oakman has graduated from Baylor, where he--notably--did not begin his career. He was dismissed from Penn State because of behavior issues, which did not involve--according to reports--sexual assault, but did include assault on a female store clerk. Since the lawsuit against Tennessee was filed in regards to the climate of sexual hostility there which includes incidents of harassment and assault, the main news has been the addition of Peyton Manning to the text of the lawsuit. Manning is not the subject of the lawsuit, but an incident in which he allegedly sexually harassed a female athletic trainer is in the lawsuit as indicative of the universitys pattern of deliberate indifference, especially in regards to athletes engaging in sexual assault and harassment. Other former players were also named, but of course Mannings draws a lot of attention to the case. The university wanted his name removed from the lawsuit but a judged ruled last week that that was not going to happen. The university also wanted proceedings to move from Nashville to Knoxville, likely because they believe that if this goes to trial a Knoxville-based jury will be more favorable to their side. The judge said no to that as well. Tennessee continues to combat the lawsuit in any way it can, which includes the above actions as well as taking issue with several of the eight women who filed the lawsuit earlier this year saying that not all of them have standing.
Here is a summary of a few recent decisions in cases where the plaintiffs sought to hold educational institutions liable under Title IX for failing to adequately respond to peer harassment and assault. The Sixth Circuit Court of Appeals upheld a lower courts summary dismissal of a Title IX claim against a Tennessee school district alleging deliberate indifference to pervasive bullying of the plaintiff. The appellate court affirmed that the deliberate indifference standard "sets a high bar for plaintiffs." Here, school officials respond to individual accounts of bullying by a variety of methods including investigation and discipline, as well as proactive measures like separation and monitoring. The court noted that it is possible for officials to demonstrate deliberate indifference by continuing to rely on the same methods that are proven to be ineffective at eliminating the problem. But according to the court, that is not what happened here. School officials employed a variety of responses that were proportionate to the offense and effective at addressing individual sources of bullying. There were almost no "repeat offenders" nor were there apparent connections between various bullies who contributed to the problem over time. Accordingly, the appellate court held that the district court was correct to determine that the school officials response was not clearly unreasonable as a matter of law. Decision: Stiles ex rel. D.S. v. Grainger County, 2016 WL 1169099 (6th Cir. Mar. 25, 2016). A federal court in Virginia dismissed a plaintiffs Title IX claim against Bridgewater College that had alleged the college was deliberately indifferent in its response to her report of sexual assault by a fellow student. Specifically, she had alleged that the college violated its own policy when it discouraged her from simultaneously reporting the matter to the police, failed to advise her of her rights, didnt allow her to present witnesses, and didnt keep her involved and advised of the disciplinary process. In rejecting this argument the court held that the judicial standard of institutional liability for damages under Title IX is not conclusively satisfied by claims that the college violated its own policy. Instead, the college must be "deliberately indifferent" to the plaintiffs claim, which is a higher standard. Here, the college promptly conducted an investigation, held a disciplinary hearing, and suspended the respondent--a response that cannot be classified as "indifferent". This case illustrates the difference between the judicial standard for institutional liability where money damages are at stake, and the Department of Educations compliance standard to determine whether a college can continue to receive federal funding. Because the standards are different, the fact that the plaintiffs allegations may have constituted violations of the Department of Educations Dear Colleague Letter did not enter in to the courts analysis. Decision: Faccetti v. Bridgewater College, 2016 WL 1259415 (W.D. Va. Mar. 30, 2016). In Connecticut, a federal court dismissed a Title IX claim against Torrington School District in a case challenging the school districts response to prolonged bullying of the plaintiff by other students. The bullying consisted of verbal harassment, much of it by fellow members of the high school football team, as well as an incident of sexual assault. The court ruled out that the school district could be liable for its response to the sexual assault, which occurred over the summer and off school grounds, because when it was eventually reported to school officials, they responded immediately to the report by separating the plaintiff from the bullies. The court ruled that the rest of the harassment was outside the scope of Title IX because there was no evidence that the bullies were motivated by the plaintiffs gender. The court rejected the plaintiffs contention that some of the bullies slurs, like "bitch," "pussy," and "faggot," satisfied this element, a conclusion that was surprising to me, given those words in isolation connote effeminacy and even more so in the context of a football team, where masculinity is rigorously policed. Decision: Doe v. Torrington Public Schools, 2016 WL 1257819 (D. Conn. Mar. 30, 2016).
School officials in Lake Oswego, Oregon, allegedly told the high school girls softball team that they would have to win a state championship before the school would upgrade their facilities to match the level of quality that the boys baseball team receives. In a lawsuit challenging this disparity in treatment under Title IX, the softball player-plaintiffs strike back, pointing out the unfairness of holding them to such a high standard while refusing to improve the level of support for the team. In the lawsuit, the softball players allege that their facilities at a nearby junior high school consist of a dirt field with poor drainage that often requires them to cancel games due to poor conditions. They also lack designated locker room and basic amenities like water fountains. Meanwhile the boys baseball team plays in a stadium at the high school that is decked out with artificial turf, locker rooms, pitching machines, an enclosed batting area, a press box, sound systems, water fountains, and well-maintained bathrooms. The school district claims that improvements to the softball field are being made, though if this is their only defense, that would not be enough to dismiss a Title IX challenge. Title IX requires that schools provide equal treatment to their boys and girls athletics programs overall. It is not necessary to treat all sports equally or provide similar treatment to the boys and girls teams in the same (or similar) sport. Theoretically, a school court argue that (for example) a world-class swimming facility for the girls, if it had one, swim team offsets the similar level of luxury that the boys baseball team enjoys. However, intra-sport or similar-sport comparisons usually end up being good indicators of overall disparity in support for the boys and girls programs in the aggregate.
In two recent decisions, students who had been disciplined for sexual assault prevailed in some way (one outright, one by defeating the universitys motion to dismiss) in their claims challenging the disciplinary process used by the university. As I describe each of them in some detail, you will notice that neither decision involves a Title IX claim. But both belong on the Title IX Blog, for two reasons. First, the fact that plaintiffs prevailed on claims other than Title IX (i.e., a claim that the schools procedures or procedural violations resulted from bias against men) supports my suspicion that Title IX claims are for the most part misplaced in disciplined student cases -- there are better source of law to address the fairness of universitys procedures that dont add the unnecessary distraction of a reverse-discrimination argument. Second, with one caveat, the examples of procedures that the judges in these cases found were or could possibly be deemed unfair are not procedures required by Title IX as spelled out in the Department of Educations Dear Colleague Letter (the caveat being the judges discussion of the preponderance of evidence standard in the Brandeis case, discussed below). Bottom line is that it is possible for universities to comply with Title IX _and _provide a fair process to students disciplined for sexual assault, and nothing in these recent decisions changes that. Doe v. George Mason University In this case, a federal court ruled in favor of the plaintiffs motion for summary judgment, a rare outcome in which the plaintiff wins without trial. The plaintiff is a former student who was expelled for sexual assault of a female classmate, his ex-girlfriend, with whom he had had a BDSM relationship. She reported to university officials that he had been sexually abusive and a hearing was held. The panel initially found him not responsible, based on his defense that both parties had agreed to rough sex and the designation of a safe word to withdraw consent. On appeal, however, an assistant dean of students reversed the panels determination and the plaintiff was expelled, and the plaintiff sued, eventually moving for the fore-mentioned summary judgment. The court agreed that the uncontroverted facts established a violation of his constitutional right to due process. The Assistant Dean who served as the decisionmaker on appeal did not explain the factual basis for reversing the panel, but during the discovery phase of litigation, the plaintiff discovered that the conduct he was being punished for was something outside the scope of the notice of the charges against him. Notice of the charges is a fundamental component of due process, since only a person who is on notice of the charges can adequately prepare to defend himself at a hearing. Another due process violation occurred during the appeal process when the Assistant Dean held separate, closed meetings with the individual members of the disciplinary panel, the complainant, and the respondent, without informing the respondent about the content of those meetings that could have provided him an opportunity to respond. Moreover, evidence in the record that the Assistant Dean had "made up his mind so definitively that nothing plaintiff might have said [in the appeal process] could have altered his decision" is a rare example of decisionmaker bias severe enough to warrant a due process violation on its own. Having prevailed on the merits of his due process claim, the court agreed that he should be reinstated at least for now. The court emphasized that due process is not focused on the result of a hearing, but the means used to reach it. It is possible, the court acknowledged, that the plaintiff may in fact deserve to be expelled. The only issue this opinion decides is that the process the university engaged in to reach that decision was constitutionally flawed. Yet, the court refrained from immediately ordering that the university correct its procedural errors by holding a new hearing. Instead, the court decided to invite the parties to brief the matter of remedy prior to a final decision on that issue. Doe v. Brandeis University In the second case, a federal judge in Massachusetts denied Brandeis Universitys motion to dismiss breach of contract claims filed by a student disciplined for sexual assault. Unlike George Mason University discussed above, Brandeis is a private university and therefore is not subject to the Constitutions due process clause. However, the judge determined that private universities implicitly agree as a matter of contract to treat students with "basic fairness," including procedural fairness similar to due process. Like in the case described above, the court focused on the universitys failure to provide the disciplined student with sufficient notice of the charges against him, which, like the case above, arose out of conduct over the course of a long-term relationship between the plaintiff and his ex-boyfriend. Given the span of time in question, the universitys failure to provide notice made it particularly difficult for the plaintiff to surmise and thus defend against the precise misconduct that was under scrutiny. Additionally, Brandeis allegedly denied the plaintiff the right to counsel, prohibited him from having any opportunity -- not even through an intermediary -- to cross-examine the complainant, and similarly prohibited his access to the investigators report as well as the statements of witnesses and other evidence against him, which similarly impaired his ability to defend himself. The judge also expressed concern that Brandeiss process permitted the same official who investigated the complainant against the plaintiff also served as "prosecutor, judge, and jury" while simultaneously restricting the plaintiffs right to appeal that decision. And he additionally noted that the universitys use of preponderance of evidence standard was "particularly troublesome in light of the elimination of other basic rights of the accused." This part of the decision is notable because the preponderance standard is something that the Department of Education has required as a matter of Title IX compliance. However, the judge does not isolate the preponderance standard as an independent grounds for concluding that Brandeiss process may lack basic fairness, so I dont read this decision as prohibiting universities from using it. Additionally, the judge concluded that "basic fairness" extends to the substance of decision as well as the procedure that it was reached. In this case, the university is alleged to have applied "novel notions of consent, sexual harassment, and physical harm" that are "at odds with traditional and legal and cultural norms and definitions." The judge agreed that this allegation could also constitute a breach of contractual right to basic fairness. For example, it does not appear that the investigator scrutinized the charges of sexual misconduct that the complainant alleged occurred prior to the onset of their long-term relationship. While the judge noted that it is possible for someone to enter into a long-term relationship with someone who has abused them, the investigator apparently did not even consider other possibilities, such as that the complainants memory of those events were clouded by his feelings for the plaintiff arising from the breakup, or by his subsequent alcohol abuse, or by the "suggestive effect" of sexual assault training he later received. The judge also criticized the investigator for not taking into account that some of the sexual conduct that the plaintiff was punished for occurred in the context of a long-term relationship, which affects the way partners convey consent. For example, one of the grounds for sexual misconduct was the plaintiff having kissed the complainant in his sleep. The judge criticized the investigator for automatically concluding that the plaintiff had not obtained consent on the grounds that sleep is incapacitation, without taking into account the reality that couples in long-term relationships tend to rely more on implicit than explicit means of establishing consent. Having prevailed over the universitys motion to dismiss, the plaintiff will now be able to continue the litigation to its next phase, discovery, after which it is possible that the case could be resolved by summary judgment, or alternatively, proceed to trial. Of course, settlement is always a possibility in any case, and defendants are sometimes more willing to settle after losing a motion to dismiss. Doe v. Rectors and Visitors of George Mason University, (E.D. Va. Feb 25, 2016).
Federal courts in two separate cases have recently considered universitys motions to dismiss claims by students disciplined for sexual assault that challenge the disciplinary process on constitutional and Title IX grounds. Here is a summary of each of those decisions: In Doe v. University of Cincinnati, two male students who were disciplined (one suspended, the other put on probation and required to write a seven-page paper) for sexual assault in separate matters sued the university, alleging that its disciplinary process violated their constitutional right to due process as well as Title IX. The court granted the universitys motion to dismiss both sets of claims. In its Title IX analysis,the court interpreted the plaintiffs complaint as alleging bias in favor of complainants (those reporting sexual assault) over respondents (those accused), which is not the same thing as gender bias. Providing interim measures to complainants and structuring a hearing that is sensitive to the complainants trauma is not necessarily gender bias are moreover requirements of Title IX according to the Department of Education, and as such are hardly persuasive as violations of Title IX. The plaintiffs attempted to connect the alleged procedural disparities to gender bias with statistical evidence that shows only men were ever investigated or disciplined by the university. But the court reasoned that these statistics are not evidence of bias on the universitys part because there are other plausible explanations for this besides bias -- including (one) that the university has only ever received complaints that name male students as perpetrators of sexual assault, and (two) that women are more likely than men to report sexual assault. Nor is the case that males are "invariably found guilty" by the university disciplinary process, as even in the case at hand, one of the plaintiffs was found not responsible of one of the counts against him. In Marshall v. Indiana University-Purdue University Indianapolis, the plaintiff was expelled and banned from all Indiana University campuses after a hearing found him responsible for sexual assault. The court dismissed his due process and First Amendment claims after finding no support in the law for the idea that the constitution prohibits universities from limiting a disciplined students right to counsel or interview witnesses in advance or that it requires them to use a standard of proof that is more than "some evidence." However, the court did not dismiss his Title IX claim, after finding that his allegation of "selective, gender-based enforcement" met the minimum requirements for pleading a complaint. Specifically, he complains that the university failed to even investigate a reported sexual assault that he claims was committed against him by a female student. If proven, that could support a Title IX claim based on selective enforcement. The court was also willing to forgive the omission of details around this allegation, due to the fact that the university "does not deny that it is in sole possession of all information relating to this allegation" and refuses to share with the plaintiff. Accordingly, noted the court, the university "cannot have it both ways" -- withholding information from the plaintiff and simultaneously arguing for dismissal for lack of detailed allegation in the complaint. By allowing the case to proceed to discovery, the plaintiff will be able to access the information that may turn out to prove his allegation of selective enforcement. When the discovery period closes, the university can put that issue to the test by filing a motion for summary judgment. Decisions: Doe v. University of Cincinnati, 2016 WL 1161935 (S.D. Ohio Mar. 23, 2016); Marshall v. IUPUI, 2016 WL 1028362 (S.D. Ind. Mar. 15, 2016).
Last week, news broke that Prairie View A&M University fired its womens basketball coach after she enforced a no-dating policy against two players who were in a relationship with each other. The players complained to the university that the policy was discriminatory and violated Title IX. As coach Dawn Brown reportedly has appealed the decision within the university system, she and her agent have also decried it publically as unjust "scapegoating." Some additional facts about the coachs actions make it less clear that her actions were discriminatory and unlawful. First, the policy does not single out players from dating each other. They are also banned from dating coaches, trainers, managers, and other people associated with the program. To be fair, if you isolate the aspect of the policy that addresses players relationships with each other you could conclude that it discriminates based on sexual orientations (since only lesbians would have those relationships). But the policy as a whole is arguably neutral as to sexual orientation,since a straight player dating a male trainer would be just as vulnerable to dismissal as lesbian teammates dating each other. To be clear, I can think of better ways to create a policy about intra-team relationships. but a conclusion that this policy discriminates against lesbians is surely no slam dunk. Even if we read the policy as discrimination against lesbians, its not clear -- at least to me -- that this was the reason she was fired. For one thing, discriminating against lesbians doesnt necessarily violate the law -- as much as Id prefer otherwise. Texas does not prohibit discrimination based on sexual orientation, and Title IX only covers discrimination based on sex. While one lower federal court has so far endorsed a view that sex discrimination under Title IX includes sexual orientation discrimination, this is not a universal interpretation and one that is not binding in other jurisdictions. So if Prairie View A&Ms explanation is that the coach was fired for "violating Title IX" this is (I hate to say) a stretch. Legal issues aside, the facts suggested by Dawn Brown to the media also raise questions about the universitys motive. She says that the policy was developed in consultation with the Title IX office, and that the Athletic Director was involved in the decision to enforce the policy against the players in question. If this proves true, this surely calls into question any explanation of Brown being fired over the enforcement of the policy. And as we have learned from other cases involving terminated coaches, when a universitys rationale for firing a female coach doesnt ring true, it is sometimes pretext for discrimination.
A lawsuit filed over the weekend presents constitutional and other challenges to North Carolinas new law, HB 2, which prohibits municipalities from including sexual orientation and gender identity in local ordinances banning discrimination and restricting access by transgender individuals to single-sex facilities. Though constitutional arguments are at the heart of the case, the lawsuit also includes a Title IX challenge to the provision of HB 2 that restricts transgender individuals to using the bathroom or locker room that matches the sex designation on their birth certificate, even if this conflicts with their gender identity and expression. Specifically, the lawsuit names the University of North Carolina system as defendant, and includes as a plaintiffs a transgender man who is a student at UNC-Greensboro and another who is an employee at UNC-Chapel Hill. These plaintiffs argue that the under HB 2, they are prohibited from access to mens restrooms and locker rooms, and UNC violates Title IX as a result. This argument could provide a federal court with the opportunity to consider the Department of Educations interpretation of Title IX as it pertains to transgender rights in single-sex facilities, and decide how much weight to give the agencys position that excluding a transgender person from gender-consonant usage is a form of sex discrimination that is prohibited under Title IX. The agency has expressed this position most recently in the settlement of discrimination case against the school district in Palatine, Illinois last fall. If the court agreed with the agencys interpretation, it could limit HB 2s application to public educational institution due to the conflict with federal law. It is also possible that the court could agree with the Department of Educations interpretation but still see no conflict between the laws. While HB 2 is mandatory, Title IX is not. It only applies to schools that choose to accept federal funding. The case could be resolved in such a way that HB 2 compliance renders North Carolina schools ineligible for federal funding, a ruling that would not affect the legal status of HB 2 directly -- but would certainly generate political pressure for its repeal.
A few cases of boys behaving badly recently have gained public attention and can be added to the data that suggest a correlation between male homosocial groups/behaviors and sexual violence. Just a few months after a few upperclass boys on a Tennessee high school basketball team sexually assaulted a first year player, causing extensive damage to his colon and bladder, a high school football team in Pennsylvania has drawn public attention for its No Gay Thursdays. This was a weekly event at Conestoga High School and entailed sexual assault and harassment, apparently of a "gay" nature since it was initiated by and directed towards boys. The press calls it a form of hazing. (My thoughts on sexual assault as hazing can be found at the above link about Tennessee. They havent changed much.) There seems to be something deeper at work here, though. To institute a day when behavior that would--under other circumstances--be deemed gay is permissible suggests more than a desire to initiate first-year students. This is more than hazing. The no gay/no homo phenomena among high school boys is causing serious damage. This time that damage included sodomizing a first-year player with a broomstick. Three seniors were charged with the assault, which occurred in October. Unfortunately, the district attorney, Thomas P. Hogan, of Chester County, Pennsylvania has bought into No Gay Thursday as well and would not charge them with sexual assault. They were charged, as juveniles, with assault, unlawful restraint, and terroristic threats because, according to Hogan, "from our perspective, its a physical assault and not a sex crime." It is a sex crime. In most sexual assaults the goal of the perpetrator(s) is not sexual pleasure but demonstration of power that is enacted through a sexually charged act. These boys very deliberately chose this form of assault on a day they set aside for just this type of assault. It is undeniable that this is a sex crime. They should be charged with a sex crime. No Gay Thursday is not a new event at Conestoga High School, either. Apparently it has been going on for three years and is a well-known secret. Three years. Hogan mentioned that this (sexual) assault is the result of "ignorance, violence, and a lack of supervision." To that I would add a culture of homophobia, male privilege, and silence--all of which are related/overlapping. The head coach was initially suspended but resigned last week and the rest of the football staff has been fired. The reason provided for the loss of jobs has centered on the lack of staff supervision in the locker room where most of the hazing occurred. I would argue that the adults were also responsible for informing the culture on the team; a culture which should not include hazing of any kind and should also not perpetuate homophobia. I am so frustrated hearing coaches say--in all of these cases of sexual assault and exploitation--from high schools in Pennsylvania to universities in Kentucky--that they knew nothing. Coaches are notorious micromanagers. They call players the night before games to make sure they are home. They establish and/or enforce training and diet regimens. They intervene when their athletes are performing poorly academically. Maybe they do not know--in some cases--the specifics; but they know what is happening on their teams. Farther west, at the University of Missouri, a Title IX complaint has been filed within the university over a sexually offensive and threatening email that was sent by a member of a campus fraternity and directed at the women of a sorority. The fraternity and the student have apologized for the email which included the following: “Get your towels ready because it’s about to go down....[W]e get to stick our arrows straight up their tight little asses. Now don’t go be ass hats, go be as social as possible with our new friends.” Interestingly, not all the news sources are actually posting what was in the letter. I found it here on the student newspapers website. The sender, Edward Lowther put the following apology on Twitter: "What I said was unprofessional on every level. I take full responsibility for my actions, and I will take steps to show that what was said in no way defines my morals or the morals of the men of Alpha Gamma Rho." I dont think unprofessional is the right word here, because there was no professional context. What he said was aggressive and violent and misogynistic and to at least hint at his morals. The theme of todays post seems to be yes, this was wrong, but not wrong in the way you might think its wrong. The University as well as the Greek community at MU seems to be taking it seriously, however, as they investigate the incident as sexual harassment and more than just unprofessionalism. It has not been a good month for Mizzou. Anti-Semitic graffiti was found on campus a few weeks ago. And of course the school is no stranger to Title IX issues. Finally, a few states over, parents of a University of Kansas rower are suing the university for false advertising and violating the Kansas Consumer Protection Act after their daughter was sexually assaulted in a residence hall by a football player. They were explicitly promised, they said, that the dorms were safe. This was also listed in the schools promotional materials. While that is going forward, the university also conducted an investigation after the student reported her assault a year after it occurred. A student conduct hearing based on the investigation is forthcoming. While the lawsuit is a slightly differently and certainly unproven tactic, what these parents are really suggesting is that the realities of sexual violence are being hidden by the university. The lawsuit lists at least seven other incidents of sexual assault in the KU residence halls in a year and half period between 2013 and 2014. The parents say that if they had known about these, they would have reconsidered allowing their daughter to attend KU. They admit, however, that they did not check the universitys Clery Act report, which actually shows more than the seven incidents cited in the lawsuit. This remains a case about transparency, and it will be interesting to see how a court interprets it.
A "glitch" in the Florida State University student records system, controlled by a third party software company, has resulted in the release of 1600 emails detailing student conduct cases. Some of those are sexual harassment and assault cases which has raised concerns about whether those who complained are now in danger because an accused person could either find who his accuser was and/or the extent and details of an accusation. The university has apologized but not taken steps beyond that to reassure those who have filed reports in the past that they are safe, according to some of those who have been affected. If I was a conspiracy theorist, I would question this "glitch" in light of FSUs less-than-stellar record with Title IX issues. Why? Because if students are worried that their reports might not be secure--which clearly they are not--then they will not come forward to report harassment and assault. Lack of reporting is already a problem nationwide. This glitch has institutionalized it at FSU. Fewer reports means that the university does not have to deal with them and they do not have to report them to the federal government, which would make FSU look safer than it actually is. Even though the University took no responsibility for the Jameis Winston situation as they settled the lawsuit brought by Erica Kinsman, evidence about the number of unreported and uninvestigated sexual assaults occurring at FSU certainly raised concerns among potential students and parents who might send their children there. But I am not conspiracy theorist. And I do not think that FSU administrators are happy about dealing with this situation. [Apparently the Title IX coordinator has been "up all night" addressing the information leak.] Additionally, FSU is still under investigation by OCR. This situation is not going to help present a picture of an institution that has its Title IX house in order. So it seems that this is just a really awful situation--for victims. Many of us have been waiting a long time for something to happen to FSU that will make it wake up and take notice of what is happening on that campus. But no one wants that moment to come at the expense of students.
Last April we blogged about the lawsuit filed by Columbia student Paul Nungesser, who was accused of sexual assault by a fellow student, Emma Sulkowicz. After a university hearing failed to find Nungesser responsible, Sulkowicz protested by carrying her mattress in public. Nungesser sued the university for damages to his reputation arising from Sulkowiczs protest. He argued that the university was deliberately indifferent to Sulkewiczs harassment of him, and thus liable under Title IX. As I predicted, the suit against the university was readily dismissed. In a decision released last week, a federal court judge in New York reasoned that Nungesser could not establish the central requirement for a Title IX claim: discrimination based on sex. As the court characterized Nungessers argument, he experienced sex-based harassment because the allegations against him were based on sexual misconduct. The court called this a "logical fallacy" that, taken to its logical end, would lead to the conclusion that those who commit or are accused of committing sexual assault is a protected class under Title IX. It is clear that when Title IX prohibits discrimination based on sex, it means based on the plaintiffs sex, not based on the act of sex. And it is clear even from Nungessers own pleadings that Sulkewiczs conduct was motivated not by Nungessers status as male, but by his conduct towards her -- in her account, that he raped her, in his account, that he rejected her, but either way, both agree that it is conduct and not status that motivated her actions. Moreover, Nungesser failed to allege any harassing conduct by Sulkewicz or anyone else. He does not claim that Sulkewicz had any contact with him after the hearing, or directed comments towards him, or even used his name in her protest. And even if she had called Nungesser a rapist, it would have been an accusation particular to Nungesser, not a gender-based slur. The court noted that a person who is falsely accused in public has a remedy in tort law. However, Nungessers claim is a Title IX claim against the university, not a slander claim against Sulkewicz. The court also found that Nungessers allegations did not establish that he had been deprived of educational opportunities, another requirement for Title IX liability to attach. The court granted leave to Nungesser to file an amended complaint to correct the numerous deficiencies, noting that it is typical for courts to grant such permission. I dont think (and I dont think the court thinks) that the result would be much different for Nungesser the second time around; if he had better facts to include in his complaint he probably would have used them the first time.
On Tuesday the Department of Educations Office for Civil Rights announced that it was entering into a voluntary resolution agreement with Erie Community College after its investigation revealed Title IX violations in the distribution of athletics opportunities. OCR determined that the college failed to comply with any of the three tests that measure compliance with the Title IX regulation that requires equity in the number of participation opportunities for each sex. The college failed the first test, proportionality, because the percentage of athletic opportunities for female students was significantly less than the percentage of female students enrolled at the college. OCR looked at data for three years, the worst of which had a gap of more than 20 percentage points as female students approached 50% of enrollment but received less than 30% of athletic opportunities. It would have taken 122 additional female athletic opportunities for Erie to have complied with the proportionality test that year, and the other years that OCR included in its analysis had disparities that were almost as egregious. Nor did the college satisfy either of the two alternatives for compliance. The second test measures a "history and continuing practice" of expanding opportunities for the underrepresented sex, The most recent womens team to be added was lacrosse, ten years ago. Yet in 2009-10 and 2010-11, a few years after adding football, the college eliminated three womens teams, along with their male counterparts, for budgetary reasons. For this reason, the college does not comply with the second test. The third test requires the college to demonstrate that the interests abilities of the underrepresented sex are fully satisfied even though there is a statistical disparity in opportunities. The college could not satisfy this test either. After dropping three womens sports, the women who participated in them remained interested in playing. Moreover, the college has a limited mechanism for gathering information on womens interest, one that falls short of a formal process that women can use to request additional opportunities. Having found the college did not comply with any one of the possible compliance prongs, OCR and the college entered into an agreement under which the college agrees to survey female students interest in additional athletic opportunities, as well as assess unmet interest using other information like regional interest and the popularity of certain sports with Eries competitor schools. Based on this information, Erie has agreed to add new opportunities for women until the college comes into compliance with either the first or third compliance test. OCR will monitor the colleges compliance. This resolution agreement should serve as a reminder to all institutions that despite OCRs increased focus on Title IXs application to sexual assault, it is still enforcing Title IXs requirements for athletics. It also reminds community colleges that they have the same compliance obligations as four year colleges.
[I have been putting this post together for a few weeks now so some of the information is not that new, but still important to consider in the overall landscape of trans rights in education. I will post again soon about additional stories that are more recent.] I am stealing this line from Ed Mazzas HuffPo piece about genital inspections as a prerequisite for public bathroom use. (see end of post for more on this): "It may be a New Year, but the same old battle over bathrooms is starting all over again." So here we go: South Dakota considered legislation that would prevent transgender students from using bathrooms and locker rooms in accordance with their gender. This is despite the fact that the government has already made clear its stance on this issue when it recently intervened in the case of young girl in Illinois who was prevented from using the girls locker room.The states House of Representatives approved the bill by a wide margin (58-10). The bills author specifically discussed the so-called incursion of the federal government into schools: "The federal government is now telling our schools that these students must have full, unrestricted access to restrooms, locker rooms and shower rooms," Deutsch said. "This means our schools must allow biologic boys and girls to use the same facilities together regardless of biologic sex." Another proponent of the bill said the "movement of transgenderism" is "endorsing confusion in the lives of little kids for whom were responsible." The bill moves to the senate and then, if passed, to the governors desk. Though he has not read it, he said it seems like a good idea. If it gets that far, I see lawsuits. Another issue in Oregon. It was in Oregon, at George Fox University, where the issue of religious colleges receiving Title IX exemptions first drew media attention (though the requests had begun before that). This time a high school is debating whether a transgender student can use the boys bathroom. Like in South Dakota, everyone knows about what happened in Illinois, and opponents do not seem to care. At a school board meeting in December, in which this issue was not on the agenda but had gained enough local attention that parents flocked to the meeting, many people had things to say. Earlier in the fall, a letter had been sent home explaining that a trans student would begin to use the boys locker room for gym class. We have not been writing about every case of transgender discrimination in K-12, and this one has--seemingly--only just begun. I give it attention here because it was one of the saddest stories I had read in quite a while. Other cases such as that of Nicole Maines or Gavin Grimm or Jayce (the George Fox student) included testimony from their parents, who all stood/are standing behind their children. The paths to this place were different among the parents, but they all got there. The child at the center of this latest controversy does not have that support. Elliot Yoders mother has not quite gotten there. This is not to say that she will not, but this fight is happening now. And Yoder walked to the front of that meeting hall by himself after standing in the back of the room listening to people talk about him. They invoked the usual: religious freedom (its a public school) and fears about sexual assault and spying by students pretending to be something they are not. They added some threats of violence. And then Yoder walked to the front of the meeting hall, after hearing members of his own family and some of his friends support his exclusion from the boys bathroom, and explained his situation. This is why we need education and legislation about transgender student rights. Because I imagine there are many more students in Yoders situation--ones who do not have family or local support--who cannot bring themselves to speak out in front of a crowd of people who are, for all intents and purposes, against them. When clear laws and policies are in place and supported vehemently by the administration, then these students can begin to exercise their rights even if they do not have a lot of people in their corner. In Texas, school superintendents have voted that student athletes must compete according to the sex listed on their birth certificates. The University Interscholastic League, which governs school sports in Texas, had this policy informally but punted a final decision to the superintendents association. The overwhelming vote in favor a birth certificate policy puts the state in line with only six others. On a happier note for transgender athletes, but one that has nothing to do with Title IX, the International Olympic Committee has changed its policy regarding the conditions under which transgender athletes can participate. The major change from the previous policy is that participants do not have to undergo sex reassignment surgery. As many critics of former iterations of the policy have noted, surgery is not a performance enhancer and often recovery from surgery can impede an athletes training. MTF individuals will have to be able to prove they have sustained a specified testosterone level for at least a year. FTM athletes can compete without restriction. This means, I presume, that there will be an exception made for exogenous testosterone. I find this curious given how concerned the IOC has been about testosterone levels. Though the IOC will apply these rules to Olympic participants, the new policy serves only as a recommendation to other international federations. In other words, governing bodies in any sport can implement their own rules. And to end on a smh moment: a Virginia state delegate in the House of Representatives has proposed genital inspections before people go into public bathrooms, including students going into school bathrooms. It may be wrong to even mention this, but genital inspections do not reveal sex. Ask the International Olympic Committee circa 1960. This is, of course, beside the point. What the senator is trying to do is to prevent transpeople from using the bathrooms in accordance with their lived gender. The measure calls for a $50 fine for anyone using a bathroom not in accordance with anatomical sex. The fine can be issued by any law enforcement officer. So in an age where fears of pedophilia abound, there is a proposal calling for adults to inspect childrens genitals. Again, pointing out all the problems with this proposal is an exercise in futility. The point is that it is being proposed to shame and out transpeople. [Dont forget: Virginia is the state where Gavin Grimm is fighting for his right to use the boys bathroom at Gloucester High School. He has received the support of the Obama administration in his case. The Federal Court of Appeals heard Grimms case last week. ] I would like to think that Mark Coles proposal is a publicity stunt--an attempt at media attention. But I doubt it. It is a response to a perceived threat that people like Cole find so outrageous and it inspires outrageous responses. My fear is that measures that are perceived as slightly less outrageous, such as the bill in Houston will be seen as legitimate in comparison.
Title IX news out of Florida late last week: a $1.25 million settlement in favor a dismissed female basketball coach.This case flew completely under the radar. News of the substantial settlement was the first we had heard of coach Mary Tappmeyers claims of discrimination against the University of North Florida and only because friends-of-the-blog emailed us the press release. Since we have yet to write about it, here is the synopsis of Tappmayers case: She was dismissed from her position a year ago (March 2015). Her contract, which had been set to expire at that time, was not renewed. She had been the only womens basketball head coach in the programs history, which began in 1991. She alleged that the university fired her as retaliation for complaining about the inequitable conditions for female student athletes and made claims of sex discrimination as well. The university said she had a losing record and that every complaint about discrimination that Tappmeyer brought forward was investigated. These investigation never found that the coachs claims had any merit. Complaints included: academic exceptions (to university admissions requirements) for male basketball recruits but not female, a larger operating budget--including travel--on the mens side, and disparities in training, office, and locker room facilities. She got paid less, but claims the university held her to higher performance standards. Her lawsuit also included allegations that administrators spoke badly of her and her all-female coaching staff to student athletes, athletic department employees and donors and that they impeded her ability to coach and recruit. So why is this case significant? One, it is a large settlement. This hints at the possibility that the university thought it would not have done better in court, though the statement from the university president stated that they settled to avoid extensive legal fees. And it is a large settlement for a case that got very little national attention and was underway for less than a year. Did the university just throw some money at this to make it go away quickly and quietly? Possibly. More on that theory later. The second reason why this case deserves some additional analysis is because it shares characteristics with other cases we have seen. Tappmeyer did not report her allegations to the Title IX coordinator because she feared for her job. She went to the presidents office instead where she was assured her position was safe. In other words, she knew that complaining within the department was dangerous for her. This is reminiscent of another Florida institution, Florida Gulf Coast University, where a group of female coaches anonymously sought help from outside the university to file a Title IX complaint about the inequitable treatment. Sex discrimination rarely stands alone. In allegations about the culture of the department, some of which did not make it into Tappmeyers lawsuit, she noted that Athletics Director Lee Moon engaged in racist and homophobic behavior. He did not want LGBT or black athletes recruited. Regarding the latter he was alleged to have said that audiences will not come out for an all-black team and encouraged coaches to recruit from the midwest. He wanted teams with female head coaches to have male assistants on staff, presumably to challenge the idea that the team was coached by lesbians. There are no people of color in head coaching positions on the mens side. Tappmeyers replacement is a black man; he is the only Black person in a head coaching position. Single axis discrimination is rare. We saw this at Penn State with the case of former womens basketball coach Rene Portland. The lawsuit by a dismissed player (which also ended in a settlement--terms undisclosed) alleged race, gender, sexual orientation discrimination. Penn State also used the internal investigation method and found no evidence of the race or gender discrimination. There is a lack of understanding about intersectional discrimination, which is part of the reason why allegations are not proven. But it exists and it contributes to the hostile climate in athletics departments. Another similarity: discernible patterns. In addition to the racist comments and inequitable treatment, the UNF athletics department had a practice of firing female coaches and replacing them with male coaches, a la University of Iowa. Sometimes athletics directors who are in charge when the discrimination occurs are themselves fired often as a measure to demonstrate that the university is taking the claims seriously and attempting to change the offensive and discriminatory culture. Not at UNF where Moon remains in his position and supported by the administration. This is also happening at Iowa where the university is standing solidly behind AD Gary Barta who, in addition to having his contract renewed, has just won an award for being the best athletic director!! Though the lawsuits are not yet settled at Iowa and it remains to be seen what happens to Barta, the announcement that the National Athletic Collegiate Directors Association chose him for the Under Armour Athletic Director of the Year Award was startling, to say the least. I realize that this is an aside. Perhaps it deserves its own post, but it certainly speaks to the culture that female coaches are dealing with not just at their institutions but at the national level. NACDA thinks that someone who is at the center of several lawsuits and a federal investigation about gender equity is the best athletic director in the country. I might worry about what is happening everywhere else, if I did not know that this award is the epitome of an old white boys club, lets look out for one another mentality. For a more thorough analysis of situation see this post. While Bartas recognition certainly seems to contradict some of NACDAs own criteria, Under Armours involvement may be the thing that engenders more outrage about this situation. After all, UA is working very hard to win female athletes and fitness fans away from Nike. The signing of Giselle Bundchen, Lindsay Vonn, and Misty Copeland along with others to star in "inspiring" ad campaigns in the past two years reflects these efforts. Being connected to this award recipient is a major faux pas for this company at this time. Consumers should let them know that. Back to Tappmeyers case and one final point. We like to think that lawsuits and settlements will change attitudes and cultures. While this is possible and we have seen it happen, it is not always a guarantee. I do not see change happening at UNF. Their reliance on internal investigations (versus outside consultants), their support of Moon, and the outright denial of Tappmeyers claims alongside the roundabout blaming of her for costing them money suggest that things will move along as they always have. Tappmeyer challenged the culture she encountered, but she could not change it. Maintaining the culture of male and white privilege and power cost UNF $125 million. I think that they are happy to pay that to continue on with business as usual.
A federal court of appeal affirmed an $850,000 verdict that Wayne State University was ordered to pay to a social work masters student after it failed to address pregnancy discrimination she was subjected to while participating in a school-sponsored internship at the Salvation Army. Plaintiff Tina Varlesis internship supervisor made discriminatory remarks about her pregnancy and gave her a negative performance evaluation that lead to her receiving a failing grade that obstructed her graduation from Wayne States social work program. Varlesi alleged not only direct discrimination on the basis of her pregnancy, but also retaliation for having complained about her supervisors conduct to university officials. In appealing the verdict, Wayne State challenged the award as excessive, as well as some evidentiary rulings by the lower court. The appellate court said that the lower court had not abused its discretion in these matters. Wayne State also complained about instructions that were given to the jury, including an argument that it was insufficient to instruct the jury to find for the plaintiff on her retaliation claim if they found that the institution took adverse action _because _she complained about pregnancy discrimination. Even though a recent Supreme Court decision held that under Title VII, a retaliation plaintiff must prove that retaliation was the employers sole motive (as opposed to a substantial motive, mixed with other considerations), the court ruled that the word "because" in this instruction complied with that requirement, even if we assumed -- which the court did not -- that Title VII caselaw applies to Title IX on issues of retaliation where the statutes are markedly different. More broadly, the case confirms Title IXs application to discrimination based on pregnancy, as well as the responsibility of educational institutions to address sex discrimination when it occurs in the context of an internship that is part of an academic program.
The long awaited lawsuit against the University of Iowa was filed today by former field hockey coach Tracy Griesbaum. As expected, the complaint alleges a department culture of discrimination against women and points places responsibility on current Athletics Director Gary Barta who has been in the position since 2006. (Bartas contract was just extended--see below.) Griesbaum is asking for her job back and that measures be taken to change the culture of the department. Regarding the latter, the complaint cites the retaliation against female coaches who asked for improvements in conditions for female student-athletes, the firing of female coaches and replacement with male coaches, and different standards for male and female coaches in regards to behavior with athletes and win-loss records. The University released a statement supporting Barta in response to the filing. Iowa settled a lawsuit brought by a former assistant track and field coach earlier this year. Mike Scott was a volunteer in the program and applied for a paid position with the program multiple times (there were several failed searches). He had a temporary contract, but ultimately lost the position to a woman. In his lawsuit Scott stated that the was told that the department wanted a woman to fill the position. The final search did indeed yield a female coach. It seems like this insistence on a female coach was an attempt to counter the ongoing allegations against female coaches that existed before Griesbaums lawsuit. Scott received $200,000. In other somewhat related Iowa news: The faculty expressed their concern with the ways things are operating within Iowas administration. The controversial process and selection of the new president, J. Bruce Herrald, a businessman with no experience in academic administration, already had faculty and other Iowa community members concerned. So recent moves by the administration, including the reappointment of Barta draw criticism all around and a public letter from the universitys chapter of the AAUP. Regarding Bartas reappointment, they noted that--according to AAUP philosophies of university governance--faculty are responsible for the welfare of students, including student athletes, Regarding the latter, there is a committee comprised of faculty members who look at and address issues in the athletics department and make recommendations. The Presidential Committee on Athletics also participate in job searches for staff members who work with student athletes.The PCA was not part of the decision to extend Bartas contract. From the letter: _Despite these directives that faculty be involved in important decisions involving student athletes, early this year your office extended the contract of Athletics Director Barta for an additional five years. There was no consultation with the PCA. This happened in a year in which — though there was impressive success on the playing fields — significant concerns were raised regarding gender equity in athletics. The university now faces investigation by the U.S. Department of Education in response to student athletes’ complaints._
Last week, a federal district court in New York denied part of Cornells motion to dismiss a lawsuit against the university filed by a student whom it had conditionally expelled for sexual assault. Like the decision against Brown that we blogged about last week, the ruling allows the plaintiff to continue to litigate his "erroneous outcome" claim against the university. To proceed on a Title IX/erroneous outcome claim, the plaintiff must plead: (1) "facts sufficient to cast some doubt on the accuracy of the result of the disciplinary proceeding"; and (2) "particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding." The plaintiffs complaint against Cornell contained several allegations that satisfy the first requirement, including that investigators ignored exculpatory statements of several eyewitnesses and ultimately produced a biased report. Apparently, Cornells disciplinary hearing process provides little opportunity for a respondent to challenge the findings in the investigators report, so the claim that the report was deficient calls the proceedings outcome into question. As for the required allegations of gender bias, the court found the plaintiffs complaint sufficient based on the "totality of the circumstances" described in the plaintiffs complaint, including that:
Jane Doe was treated more favorably than Plaintiff, that the investigators seemingly slanted the Investigative Report against Plaintiff, a drastic change in position of one investigator in the closing weeks of the investigation, and the possibility that male respondents in sexual assault cases are invariably found guilty at Cornell.Cornell pointed out that the "men are invariably found guilty" allegation has been rejected by other courts as a "conclusory" allegation that lacks the requisite specificity to satisfy the pleading standard. But the court rejected that argument, pointing out that reading it together with the other allegations of bias turns it into an allegation that is sufficiently specific:
Further, unlike in Doe v. Columbia where a similar “invariable treatment” allegation was rejected as “wholly conclusory,” see Doe v. Columbia, 101 F. Supp. 3d at 369, Plaintiff alleges that anti-male bias was exhibited by the differential treatment he and Doe received during the administrative process, by the on[e]-sided manner that the investigation was conducted, and by the outcome determinative style that the Investigative Report was drafted.Notably, then, this court appears to view the "differential treatment" and problems with the report as allegations of _gender _bias, in contrast to the position taken by others courts that allegations of bias against respondents is not the same as bias against men. Besides the erroneous outcome claim, the plaintiffs selective enforcement claim was dismissed for lack of allegation that women are treated more favorably when they are in the position of respondent. The court also permitted the plaintiff the opportunity to clarify his breach of contract claim and possibly continue to litigate that as well.
A federal district court in Rhode Island denied Brown Universitys motion to dismiss a Title IX "erroneous outcome" claim filed by a male student who was found responsible for sexual assault of a female classmate and suspended for two and a half years. (The court also permitted the student to continue to litigate some of his breach of contact claim, but did dismiss his Title IX "deliberate indifference" claim.) The court concluded that the plaintiff sufficiently alleged facts that could, if proven, satisfy both requirements of an erroneous outcome claim: (1) "facts sufficient to cast some doubt on the accuracy of the result of the disciplinary proceeding"; and (2) "particular circumstances suggesting that gender bias was a motivating factor behind the erroneous finding." As to the first element, the plaintiff alleged that the process by which he we found responsible and sanctioned was plagued by procedural errors, including giving inadequate weight to aspects of the victims statement that could be interpreted as consent. At the motion to dismiss stage, the plaintiff need only allege a basis for doubt, not prove that the result of the proceeding was inaccurate, and the court had little trouble concluding the plaintiffs allegation was sufficient. The second element was more challenging for this court, though it ultimately decided it in the plaintiffs favor as well. The plaintiffs allegation of gender bias is essentially an argument that Brown has a pattern of finding men responsible for sexual assault when they are so accused. He states this is connected to gender bias, but he does not allege a specific comparison to female students accused of sexual assault not found guilty. That makes his case more challenging to evaluate than a if it had contained a "comparison" allegation, which usually satisfy the pleading standard in sex discrimination cases that, like this one, are not based on direct evidence of discrimination (something like an express policy of treating women differently from men). But on the other hand, as the court acknowledged, a comparison allegation is difficult and maybe impossible for male plaintiffs to make in cases like these, since it is rare that women are accused of sexual assault, and perhaps Brown has not had the opportunity to decide such a case in order to make such a comparison possible. In Yusef v. Vassar College, a leading case on erroneous outcome claims, the Court of Appeals for the Second Circuit determined that a similar allegation that "men are invariable found guilty" (without a female comparison) was sufficient to survive a motion to dismiss. But since that decision, the Supreme Court has required discrimination plaintiffs to allege with a greater level of detail. As a result, some lower courts have since determined that the allegation deemed sufficient in Yusefs case is no longer sufficient under the Supreme Courts new pleading standard. These courts have reasoned that this is a conclusory (and thus, insufficient) allegation of gender bias because it only suggestive of a pattern that _accused_ students are found guilty. That accused students tend to be male is not something that the university controls; students of either gender are permitted to file a complaint, and it is possible that if female students were similarly accused, the universitys alleged bias against the accused students would affect them as well. In the Brown case, the court took a different view, reasoning that requiring anything more specific of the plaintiff at this point in the litigation would be tantamount to prematurely imposing the burden of summary judgment standard. If the argument is that the plaintiffs allegation of gender bias lacks evidentiary support, the court says, that will get sorted out after the plaintiff has had the opportunity to take discovery. It may turn out that, as plaintiff has speculated "on information and belief" that there is bias against men, not just "bias" (alleged) against the accused. My own view of this aspect of this opinion is a bit conflicted. On the one hand, I dont agree with the Supreme Courts heightened pleading standard for discrimination plaintiffs. At the same time, I dont see the Brown courts decision as a faithful application of that standard, since it really permits any accused student to turn his procedural challenge into a Title IX claim but simply invoking "information and belief" that the bias against the accused is motivated by gender. Moreover, while I would prefer that Title IX did permit plaintiffs to litigate disparate impact claims (claims based on a pattern without evidence of intent), the prevailing view after Sandoval, a Title VI, case, is that such claims are claims are foreclosed under Title IX as well. That said, I cant help but notice that the courts analysis seems to permit the packaging of what is essentially a disparate impact claim masquerading as an intentional discrimination claim. It will be interesting to see what happens to this case as litigation continues, and/or if this decision is appealed to the First Circuit. Decision: Doe v. Brown University, 2016 WL 715794 (D.R.I. Feb. 22, 2016).
We have seen emerge a pattern of sexual assault cover-ups by intercollegiate football teams recently. Kent State has interrupted that pattern--not in a good way. The university is facing lawsuit by a former softball player who alleges that her own coach, Karen Linder, tried to cover up the assault the player reported to her. Why? Because the assailant is the coachs son, also a student-athlete. When the player did indeed report the rape, the (now former) coach retaliated in ways that forced the player to quit the team. Though this in itself is awful, what exacerbates these feelings--along with my cynicism--is that the coach sought out her player who had not initially reported the assault but who was clearly affected by the incident. Changes in the players behavior, socially and academically, compelled the coach to ask if she had been sexually assaulted and also ask, according to the lawsuit, if her son was the perpetrator. When she found out that he was, she was apologetic but also asked that the player not share this information with anyone else (her family already knew) and wanted her to talk to her son to try to resolve the issue. The player tried to move on but had difficulties sharing facilities with the baseball team (of which the son was a member) and going to the coachs (and her sons) home for team events. The player also came to find out that Linder should have reported the assault to the university once she knew about it. The player initiated a complaint with the athletic director that her coach had not done this; the athletic director went directly to Linder who resigned almost immediately but did so railing against the student athlete the whole time and rallying support for herself while decrying the actions of the player and the university. This effectively created a culture on the softball team, maintained and perpetuated by the replacement coach, that was hostile to the student athletes continued participation. The lawsuit is against both Karen Linder and the university. The latter is not commenting at this time.
As I wrote last week, the University of Tennessee and Baylor University find themselves in similar situations: student athletes accused of sexual assault and subsequent indifference to these reports by administrators. More has come out about Tennessee, specifically Peyton Mannings involvement when he was a student athlete. I am moving on to discuss the cases at Baylor though for now and may return to Manning later. As I noted in my original post, the two situations share characteristics but are different in key ways. First, the judicial system has already handled the cases of two of the accused. Two former Baylor student-athletes were convicted of sexual assault, but the school did nothing about either of them. They did not investigate when victims came forward. What we more often hear is that schools think that because law enforcement and the legal system did not accrue enough evidence or did not find the accused culpable, schools are off the hook. Though not true, it is not difficult to see how this thinking manifests. But here there were two guilty verdicts. Tevin Elliot, a former football player serving twenty years, is one of those players. He was tried for one incident but is accused of a handful of others. ESPNs Outside the Lines ran a story on it which featured several of the women accusing Elliot of rape. The story reveals the culture at Baylor that allowed athletes to continue to assault women. Women reported the assaults to local police and to Baylor. One woman, a student athlete as well, reported Elliots assault to the Chief Judicial Officer at Baylor, Bethany McCraw. The student athlete named Tevin Elliot specifically and McCraw responded that this was the sixth accusation against Elliot. She told the victim that there was nothing Baylor could do until a court acted on it. We all know by now that this is wrong. Did the CJO know her institution was required to investigate? So scenario one: McCraw did not know Baylor was legally obligated to investigate all reports of sexual assault. This requires us to ask: why not? How do you not know the laws that directly affect your job which is maintaining the welfare of the students at your school? At best, Baylor has ineffective people in very important positions. Even if McCraw did not know the law, she knew this was not the first time. She knew that the football program and the athletics department were aware of Elliots behavior. As an administrator in the Dean of Students office, one might think she would be interested in the welfare of Baylor students who have been victims of sexual assault. What she offered this sixth victim was help with finals. This leads me to think that scenario two was more likely. McCraw was protecting and/or being pressured to protect the program by protecting Elliot. She discouraged the victim from seeking redress in the form of a restraining order or filing criminal charges. She did not initiate an investigation. So how administrations deal with reports contributes to the sexually hostile environment at Baylor and the culture of privilege within the athletics department: everyone knows and no one is doing anything. This is a legal failure most certainly and Baylor has, in the wake of the publication of these accusations, been releasing all sorts of statements about how they are examining and changing the policies and procedures. But this was a moral failure as well. While this is often true in other cases we hear and write about, it seems so much more salient at Baylor. I absolutely do not think a Christian university is or should be more morally upstanding than secular institution. But Baylor flies its Christian flag very prominently. They use the religious affiliation of the school to justify discrimination. It is unfortunate, but it is not difficult to see how Baylors intolerance of certain lifestyles and behaviors (including premarital sex!) has resulted in this culture of misogyny. Sadly, that culture extended to all corners of the institution, including counseling services. Victim number seven, the one whose criminal charges against Elliot were what got him convicted, sought out mental health services after she reported the crime to the Waco police. They told her they could not help her and warned her about hurting the reputation of the programs by accusing one of its premier players of rape. The second conviction against another Baylor football player came after Elliot was released from the team and expelled because of the criminal charges against him--still without an investigation by the school into the accusations. In this case the district attorney found a culture of ignorance about sexual assault at Baylor. She reported an inability by administrators to see non-stranger rape as rape. Maybe this is true, though the cover-ups and the narratives suggest something more insidious than ignorance or even indifference. Baylor has hired a law firm to look at old cases. But there is no promise that those findings will be made public. They hired, as of 2014, have a Title IX coordinator. Right now, all of those actions look like CYAs. I find it almost impossible to believe that in 2011, when these accusations began, that administrators were unaware of the issue of campus sexual assault. This was the year of the Yale complaint and the fallout from the Penn State scandal. There had already been verdicts (sometimes with large jury awards to victims) against K-12 schools who had neglected to address sexual assault against its students. There was a Dear Colleague letter that year as well. Everyone, including Baylor, was on notice. Final note: there is no OCR investigation into Baylor at this time.
Here are summaries of some recent judicial decisions involving Title IX claims against school districts for failing to adequately respond to reports of sexual harassment and abuse. A federal court in Connecticut refused to grant summary judgment to a school district in a case stemming from a ninth-graders repeated sexual abuse of the sixth-grade plaintiff. The abuse itself occurred outside of school, but the plaintiff alleges that the school district was deliberately indifferent to the fact that the abuse and her reporting of it subjected her to continued harm while at school. For one matter, the school did not take steps to expel the 9th grader, which created the opportunity for the plaintiff to encounter him in space that the middle school and high school shared. Additionally, the school did not respond to repeated requests from the plaintiffs parents to intervene in harassment that the plaintiff was enduring at the hands of some sixth-grade peers, including the perpetrators sister. The court agreed that based on these claims it is possible for a jury to conclude that the school district was deliberately indifferent and liable under Title IX. Its ruling allows the case to continue on to trial. Doe v. New Fairfield Bd. of Educ. 2016 WL 310720 (D. Conn. Jan. 26, 2016) A school district in Indiana must continue to litigate a former students claims that school officials tolerance of hazing on the boys swimming team violated Title IX as well as his constitutional rights. In denying the school districts motion for summary judgment, the court determined that a jury could find based on the evidence in play that the school tolerated conduct among boys that it would not have tolerated among girls, a finding that would subject the school to liability under Title IX. Because the plaintiff alleged that the school officials indifference to hazing was "because of sex" it was not fatal to his claim that his additional allegations that the hazing itself was "because of sex" was not supported by evidence. J.H. v. School Town of Munster, 2016 WL 427351 (N.D. Ind. Feb. 03, 2016). An Oklahoma school district prevailed on summary judgment in a case filed by a female student who was targeted for an inappropriate relationship by her history teacher. The student argued that the school should have been on notice of the teachers conduct as a result of an incident in which a custodian discovered the teacher and student together in a locked classroom with the lights off. While in fact that teacher had been kissing and touching the student behind the locked door, the teacher provided a plausible explanation for this situation when he was asked about it by school officials (the locked door he said was the result of on active shooter drill, the lights off because he was using a projector). In light of the teachers response, the court determined that the custodians discovery of the locked/dark classroom did not provide the school district of actual notice of the teachers inappropriate conduct and that it was reasonable to take no further action against the teacher other than warn him not to be alone with students in the classroom. Later, when school officials received additional evidence of the teachers conduct, they acted immediately to suspend the teacher and begin a disciplinary process that ultimately led to his resignation, thus fulfilling their obligation under Title IX to respond reasonably to actual notice of a threat of sexual harassment,. Roof v. New Castle Public School District No. 1, 2016 WL 502076 (Feb. 8, 2016). A federal magistrate in Texas granted summary judgment to a school district after determining that the plaintiff did not have sufficient evidence that school districts response to peer harassment was tantamount to deliberate indifference. The plaintiff, an 11-year-old boy, was harassed by fellow students because he had "breasts like a girl" and other physical characteristics that allegedly made him appear less masculine and gay to his classmates. In light of uncontested evidence that the school district took some disciplinary action in response to reports of bullying, the magistrate determined that school officials could not have been indifferent, even though the response was (at least arguably) too weak to curtail the bullying in question. Nor did it matter that the school district (again, arguably) failed to comply fully with its own anti-bullying policy. Concluding that the school district "should have done more" does not determine whether the school was deliberately indifferent. Drawing this distinction, the magistrate determined that the school district could not be liable under Title IX. K.S. v. Northwest Indep. Sch. Dist., 2015 WL 9450853 (E.D. Tex. Dec. 1, 2015).
I wonder if Florida State officials are sending thank you notes to their counterparts at Baylor and Tennessee for helping take the heat off their recent settlement announcement in which they did not admit culpability for improper handling of a sexual assault accusation against former football player Jameis Winston as they paid out nearly $1 million to settle the lawsuit brought by Winstons victim. Because what is happening at those two schools is--and will be--taking up a lot of media space. Both Baylor and Tennesse are having problems dealing with their student-athletes and with accusations of sexual assault against their athletes. This post is just about Tennessee. I will post again shortly about Baylor. Though similar, they each have their own unique aspects that warrant separate consideration. Word came out yesterday about a lawsuit filed by 6 women at Tennessee alleging improper handling of their sexual assault reports. Five of those allegations are against student athletes (football and basketball). The non-student athlete assault happened at a football team party. The lawsuit details parties such as that one and the culture of illegal behavior that is, at best, tacitly supported by the school. It cites high-ranking university officials (including the chancellor) as responsible and aware of the assaults. The lawsuit also mentions additional sexual assaults of other women not associated with the lawsuit. In additional to the allegations of deliberate indifference, the lawsuit also states that the hearing process for sexual assaults is biased against victims. One accusation is that the accused can have lawyers. On its face, this does not seem like a problem--other universities allow this--unless victims are not allowed lawyers either expressly or through omission (i.e., they are not made aware of this option). The more particular issue is that one lawyer in town is being hired to represent all these athletes at their hearings. Not automatically a problem or violation, but there are potential issues with this. Community support in the form of the judicial and law enforcement sectors being "kind" to student athletes is not new. We saw it at Florida State and it was rampant at Washington in the Neuheisal era where law enforcement and the judicial system almost colluded in protecting football players charged with crimes (not all sexual assault). So one might ask: Who is paying this lawyer? Is he doing it for free? What is his connection to the program? To the university? These are issues that someone should investigate. Apparently an administrative law judge adjudicates these hearings. The lawsuit contends bias here because that judge is appointed by the chancellor and, again, the accusation is that the chancellor is part of the problem and arguably has a vested interest in protecting student-athletes and/or the reputation of his university. These will be interesting aspects with which the court will have to contend. How much leeway does a school have in establishing policies and procedures? How guide-y are the federal guidelines? Is Tennessee following the letter of the law, but not the intent in the way it addresses accusations of sexual assault? What will be less contentious, assuming the allegations are proven to be true, is the deliberate indifference and the sheltering of student athletes. Many athletes are publicly reprimanded for "bad behavior" by being suspended or even kicked off a team. What happens afterward is not as public. Often athletes stick around campus--still students in good standing--and then transfer to other schools or even graduate. According to the lawsuit, Tennessee violated Title IX by: "delay[ing] the investigation process until the athlete perpetrators transferred to another school or graduated without sanction or discipline." One named assailant, former football player A.J. Johnson was suspended during his last season with the team but was allowed to take part in graduation. The transferring to other schools is not new. The delay of investigation while everyone looks the other way is not new. We have written about it. There have been other lawsuits and complaints that report this. The SEC, of which Tennessee is a member!--now has a rule that its member schools cannot accept transfer student athletes with records of sexual and domestic assault. What we do not know, but what many of us suspect, is that this "procedure" for dealing with offending athletes is more widespread than the few incidents indicate. The Tennessee lawsuit may not reveal a national pattern, but it certainly adds to the mounting evidence that what happened there is business as usual in big-time college sports. Also, these allegations of bias and of collusion in hiding and protecting offending athletes at Tennessee is not new. There have been complaints and investigations against other officials as well as the football coach who has a great deal of control over the disciplinary proceedings against athletes. These alleggeations have been around for years. A side bar, of sorts, to this story is one about a Tennessee football player who was physically attacked--allegedly more than once--for helping one of the victims (taking her to the hospital and encouraging her to report her attack). I have seen some social media that critiques news outlets for running this story saying that the real story is the lawsuit and all that is contained within it (the events, the response, etc.) and that running the story about the football player takes attention away from what these 6 women endured. If that is the only story that a media outlet ran about what is happening at Tennessee, I would agree with the critiques. But this story is telling in itself. It speaks to the culture of secrecy and protection within athletic departments. A culture specifically cited in the lawsuit. A culture that both lead to the assaults and certainly affected how they were handled by university officials. It is a message to those within the program, arguably within the Tennessee athletics community as a whole, that if you do not conform to the cultural norms--the ones, in this case, that privilege athletes to such a degree that they are allowed to engage openly in illegal and violent behavior--that you will be punished. This is code red, A Few Good Men, culture. Officials knew what was happening, the victim told them this player was being assaulted, and they did nothing. This is something new. I have not seen reported anything about repercussions to those--who are not victims (because they are frequently shunned, bullied, further assaulted and harassed)--within the culture who in some way support a victim. Maybe because it does not happen. Those who disagree with what was done or what is happening will just remain silent rather than threaten their position within a culture that provides them protection and privilege. This may not be the main story, but it is a compelling one and deserves attention as well.
On Tuesday the Obama administration proposed a federal budget to Congress that would increase funding to the Department of Educations Office for Civil Rights to $138 million, a 29% increase over its current level of support. As mentioned in this Huffington Post article about the proposed budget, OCR is presently investigating alleged Title IX violations at 162 colleges and universities, as well as 73 school districts. The backlog causes most investigations to take at least a year, with some taking far longer. The requested budget increase aims to address the problem by earmarking the additional funds for adding more personnel at the agencys regional offices, which handle enforcement.
As the Huffington Post article points out, request and reality often differ where federal budgets are concerned. Last year the President proposed increasing OCRs budget from $100 million to $130 million, but Congress only agreed to $107 million. If recent trends predict the future, it seems likely that that President would get some but not all of the requested increase. Hopefully Congress will add enough new funding to make a meaningful difference the agencys ability to conduct investigations in a reasonable amount of time, and ensure that the agency can vigorously enforce Title IX without losing focus on its other civil rights responsibilities, including the enforcement of statutes that prohibit discrimination based on race and disability.
Breaking news: FSU will pay Erica Kinsman just under $1million to settle the lawsuit she brought against her former institution in the wake of their mishandling of her rape allegations against former quarterback Jameis Winston. FSU had dug its heels in deep in the case, making repeated remarks to the media about how they had done everything according to the book, despite glaring evidence to the contrary. So I am somewhat surprised by the settlement--and somewhat not so surprised. A trial would have drawn more attention and potentially turned public opinion against the university which still remains very popular in the eyes of fans and alumni. I believe the evidence that would have been brought out at trial would have made them look horrible. Their initial lack of response to Kinsman and the more-than-a-year-late conduct board hearing which was handled so poorly could not have been overlooked. In the settlement FSU admits no wrongdoing, though most of us know that $950,000 is a pretty hefty sum for an innocent entity. But this way those who vilified Kinsman, (the harassment she experienced was one of the reasons she withdrew from her dream school) can continue to say that nothing was ever proven and that the university simply had to pay her off or incur even more costs to defend themselves. This narrative is somewhat frustrating. Though there are further legal actions pending against Winston. FSU is still maintaining that they would have won in a trial. This statement from President John Thrasher is particularly infuriating: _Although we regret we will never be able to tell our full story in court, it is apparent that a trial many months from now would have left FSU fighting over the past rather than looking toward its very bright future. We have decided to instead move forward even though we have full faith that the ultimate outcome of a trial would have been consistent with the previous law enforcement investigations and retired Supreme Court Justice Major Harding’s findings in the student conduct hearing._ I am not going to go back to rehash the student conduct hearing. I will just remind readers that it was somewhat of a comedy of errors--but not funny in the least. Whatever Hardings credentials as a judge, his expertise did not extend to overseeing and judging a student conduct hearing. _FSU was correct about the costs of litigation. Only $250,000 of the settlement is going to Kinsman. The rest covers her legal costs._ CORRECTION: New sources have emerged since this story broke, and I posted that this was breakdown of the settlement. The statement was from FSU. But the division of the settlement is to be determined between Kinsman and her legal team, who say that the $700,000 is what FSU determined legal costs to be but is not reality. What else has this cost FSU? As part of the settlement, FSU has committed to five years of of sexual assault awareness, prevention and training programs. Curious. Not sure what will happen after five years. These things are basically required anyway. There will be annual reports discussing these programs in an effort in "increase transparency." The latter has been an issue. One astounding fact that would have been brought up at trial is the statement from the former director of the Victim Advocate Office claiming that of the 113 reports of sexual battery to their office in 2014, the university reported only 9 to the federal government (Clery Act violation). This may be an issue, though, when OCR does its investigation. The university still has to contend with that.
The Iowa Civil Rights Commission has been investigating the 2014 firing of field hockey coach Tracy Griesbaum. The results, issued in early December in a brief report by the commission, clear the path for Griesbaum to file discrimination lawsuit against the university. It is expected she will do so in the next few weeks. The report states that there was a "reasonable possibility" that the coachs dismissal was a result of gender discrimination and that the university has not provided evidence that her dismissal was the result of a combative nature (one of the universitys claims for her termination). In related news, the complaint filed by four current and former field hockey players in the wake of Griesbaums firing will bring OCR to Iowa City some time this spring. Though the complaint deals specifically with the treatment of female coaches, OCR will assess the entire program and could issue a report on, in addition to coaching, things such as access to facilities and medical care, availability of practice times and equipment, quality of travel and competition. In other words, this visit is not just about whether there is discrimination against female coaches, it will be about whether there is equal treatment in the department. What we have seen is that when there is disorder in one part of the house, there are usually messes elsewhere. The university may be working hard on its defense in the presumed Griesbaum lawsuit, but the athletics department should also be doing an assessment of the overall state of the department and making proactive (in terms of an OCR visit; obviously things should already be in order) moves to demonstrate to OCR that they are committed to achieving equality in the department.