- Oklahoma colleges handling misbehaving student athletes
- NCAA Reform and Title IX
- Expanding the movement
- The latest investigations
- The answer to Monday's question is...
- Who will investigate AFA next?
- Assailant given third chance
- Senators Propose New Law Aimed at Campus Sexual Assault
- Even with exemption, George Fox not off hook
- Understanding the Religious Exemptions from Title IX
- Two more religious exemptions
- UTexas learning from others' mistakes?
- Ohio State Marching Band Director Fired Over Sexual Harassment
- FSU finally addressing sexual assault
- UConn settles lawsuit
- George Fox updates transgender policy
- Thoughts on Hobart and William Smith Colleges case
- George Fox University's Religious Exemption From Title IX Compliance
- Twice accused athlete going to third campus?
- Krakauer digging into Montana case
- Lawsuit against University in Denver
- USC announcement inspires complaint
- What are the Title IX Implications of USC's 4-Year Scholarship Plan?
- Clery Act expansion
- Investigation Opened at James Madison University
Not all of these cases are Title IX specific, but given the cover-ups and repeat offenses that happen when colleges look the other way (see the last incident below) or lightly punish student athletes who commit assault, I felt this update is relevant. The athletic and college administrators at the University of Oklahoma have announced the suspension of first-year Joe Mixon, a "highly-touted" recruit. Mixon was charged with a misdemeanor after punching a woman in a restaurant, breaking four bones in her face and leaving her unconscious. And OU has decided to suspend him for the season. He had been banned from team activities since right after the incident. In the wake of the wrist-slapping the NFL gives players who commit assault, it might seem that OU is taking a hard line in this case. But as Deadspin writer Diana Moskovitz notes, this is the same team advocating for the eligibility of Dorial Green-Beckham, former Missouri football player who was dismissed after breaking into his girlfriends apartment and assaulting someone at that residence. The girlfriend did not press charges because she feared backlash from the Missouri football community. (She must have learned well from FSU.) OU should tread cautiously given that elsewhere in Oklahoma there is a Title IX issue.... University of Tulsa is facing a Title IX lawsuit from a female student who alleges the university did not do enough in addressing the history of sexual assault allegations by basketball player, Patrick Swilling, Jr. The lawsuit states that the university knew of an incident at Swillings former school, the College of Southern Idaho and ESPN commentator said it is "shocking that the coach [at Southern Idaho] would pass the buck" on this. This is NOT AT ALL shocking. This underground passing of suspect student athletes happens all the time. What is more shocking--to me--is that the Southern Idaho admitted it handled things poorly. The former president said he felt the schools duty to investigate was mitigated by the fact that local law enforcement conducted an investigation. Back in Tulsa, though, Swilling was cleared by a university investigation into the sexual assault (there was also a prior sexual assault allegation to campus security by a student who has graduated and does not want to pursue the issue--which was not pursued by the university). This has seemingly cleared Swilling for athletic participation and he is in fact trying to get on football team and coach wants him. How this lawsuit (and an Outside the Lines investigation into sexual assault) affects his chances remains up in the air.
Last week a federal district court judge ruled in favor of the former college athletes, lead by Ed OBannon, who were challenging NCAA rules that prevented them from sharing in the proceeds that their colleges and universities earned by licensing their names and likenesses for commercial purposes like television broadcasts. The court agreed with the athletes that NCAA restrictions on athlete compensation are a form of price fixing that unreasonably restrains trade, and, as such, violate federal antitrust law. As a result of the courts decision, the NCAA must allow schools to use broadcast proceeds to provide stipends that compensate athletes for the true cost of attendance, which is often more than the cost of tuition, room and board, and books to which athletic scholarships are currently limited. And it must allow schools to hold some of the money they receive from television broadcasters for using players names and likenesses in a trust fund, to be shared among the players when they graduate. Though these changes will result in only modest compensation for former athletes -- the court specified that the NCAA could restrict payments from the trust fund to ensure that athletes only receive up to $5000 -- the case is still a very big deal. No longer can the NCAA invoke the concept of amateurism to justify whatever restrictions it would like to place on athlete compensation. Notably, the OBannon plaintiffs came from the sports of mens basketball and football, which are the sports that generate broadcast revenue. Accordingly, the decision only speaks to athletes in those sports. Yet, the decision is bound to have an indirect effect on womens sports, as a result of Title IX. As economist Andrew Schwarz explains, both in Jane McManuss column on espnW, as well as in his own Deadspin column yesterday, Title IX requires schools to allocate scholarship dollars in manner proportionate to the gender ratio of student athletes. A school that decides to offer male football recruits some additional compensation would have to ensure that a proportionate dollar amount is allocated to female athletes as well. Otherwise, they have a compliance problem. (Or more likely, a _worse _compliance problem, as many schools already do not provide enough scholarship dollars to female athletes.) As McManus points out at the end of her column, the effect of the OBannon decision on womens sports could be to inject a little more money into womens sports. But is that really a victory? To the extent the decisions legitimizes a version of college athletics that operates, as McManus says, "as platform for ticket sales, TV contracts and cash" rather than an "educational tool" is it really a victory for college athletes at all?
Two recent pieces about sexual assault and harassment on college campuses will hopefully open up more dialogue and more changes that offer protections to others in addition to undergraduate students. Actually, one of the pieces--from _Inside Higher Ed_--reported on the harassment that takes place when doing fieldwork; so in off-campus situations. The article reports on the recent publication of a survey that asked people involved in off-campus fieldwork about their experiences with sexual harassment in these settings. The harassment happens between colleagues and also between supervisors and trainees (often graduate students or postdocs). In other words, most often it is between people with different levels of power, though it is not unheard of for harassment to occur, for example, among graduate students or other trainees. The harassment women experienced was more likely to occur with people who were more powerful than them, whereas the harassment men reported was more often peer-to-peer harassment. There were 666 respondents to the survey, 78 % of whom were women. A majority of respondents (about 75%) had heard of or witnessed sexual harassment in the field. A slightly lower number, 64% said they had experienced it themselves. And 20% reported being victims of sexual assault, which the researchers defined as any unwanted sexual contact, including rape. Several academic professional societies have responded to the study noting their obvious opposition to harassment in the field. But whether these organizations have policies or make statements is of little consequence since they generally have no authority over the people involved. In other words, schools need to address this issue. Fieldwork is a very different situation and it requires very specific attention. How does one report harassment and assault while in the field? How are protections offered to victims? What are the protocols from removing an assailant from the field? An additional factor that is specific to this situation is that trainees and lower level colleagues have a lot to lose by reporting assault and harassment. Supervisors can be dissertation committee chairs and members, advisers, tenure committee members, recommendation writers and general notable people in their fields. This is an issue that also faces graduate students. This was well-noted by Brown graduate student, Sara Matthiesen in this article. Matthiesen has been advocating for specific attention to the issues graduate students face being neither students nor employees. Private institutions, such as Brown, do not have to let graduate students unionize, thus providing even fewer avenues for protections. Matthiesen is asking for greater awareness within departments about resources and training for graduate students about sexual harassment. Peer to peer harassment can be addressed via student judicial boards, but harassment by supervisors, professors, and others who hold more power than graduate students go through different processes which end in a final decision about, for example, the employment of a faculty member, with the word of one individual (usually president, dean, or provost) even if an entire panel has heard the case and made a recommendation. Victims also do not receive the same level of support in going through a grievance process--no advocate, no office providing support. But even these practical issues do not entirely address the problem of the academic hierarchy. Matthiesen sums it up well: _Graduate students not only risk their educational opportunities when they take steps to hold advisers and colleagues accountable for sexual violence. No longer able to conduct research in the lab, or obtain letters of recommendation from the leaders in their field, or secure access to faculty research money, they risk losing their current and future livelihoods. No amount of Title IX coordinators or university-wide committees on sexual misconduct can correct for the power imbalance that defines this professional relationship, an asymmetry that is only compounded when universities refuse to acknowledge graduate students’ work lives and goals._ This moment of student activism on the issue of campus sexual assault has been impressive and drawn considerable attention and hopefully will result in positive changes. And though the focus has been on the experiences of undergraduates, it is a good time to realize that sexual harassment and assault happen to other members of a university community both on and off campus. As many schools scramble to correct and clarify their policies and procedures for undergraduate sexual assault, they should also take the moment to broaden their scope.
Johns Hopkins University and UCLA were added to the list of schools being investigated for handling of sexual assault this week. That brings the total number of investigations to 80 At JHU, the student-filed complaint states that the student was discouraged from reporting her rape by a dean who noted that no student had ever been expelled for a sexual assault charge. I wonder what they do expel students for... I have not seen any information about any precipitating events for the UCLA investigation. Also, late last month OCR announced that Hampshire College was under investigation. This is an investigation that was not prompted by a complaint, though. The Department of Education, however, does not randomly investigate schools. This suggests that the department received some kind of information whether data or reports that was compelling enough for them to launch an investigation.
...no one. Well maybe the Department of Defense. Though I knew that military academies were Title IX-exempt, I believed that, like religious institutions, exemptions were based on the mission of the institution. In other words, when Title IX first passed and military academies were single-sex institutions, the argument was that there was a compelling military interest for keeping them that way. But exempt for military academies is complete exemption. Go to the websites and try to find a Title IX coordinator. There isnt one. Go to the Equity in Athletics Data Analysis Cutting Tool and enter the Air Force Academy or Coast Guard Academy to find the breakdown of male-female athletes, spending on sports, revenues, etc. There is nothing. I do not see a compelling military or national interest for exemptions from all aspects of Title IX. And when it comes to campus sexual assault, I feel similarly. Though, as I told _Inside Higher Ed_, it is possible that the military sanctions against sexual assault are even more severe, the lack of transparency and the lack of oversight are problematic at a time when the federal government has committed itself to greater transparency on this issue and asking for funding to increase the number of staff to do investigations. The militarys record on sexual assault is abysmal and the cover-ups of both large-scale scandals individual cases inspires little faith that there can be change without more public oversight.
The Air Force Academy announced it was launching an investigation into its athletic department after the local paper, the Colorado Springs Gazette, did its own investigation into the department. The latter revealed sexual assault by athletes, use of date rape drugs, academic allowances to athletes, drinking and drug use. At the center of controversy is a 2010 party that resulted in 32 students being investigated. Not all were athletes but three athletes, 2 male, 1 female, were expelled. It does seem like AFA addressed the misbehavior of the students, so I am not completely clear on why the Gazette was looking into this now. My guess is that they were looking to expose a culture of privilege in AFA athletics. Perhaps the party and the punishments were kept quiet. But the schools (somewhat new--2013) superintendent, Lt. Gen. Michelle Johnson, is committed, she says, to addressing these issues and has conveyed that message to coaches who are being asked to look more carefully at the character of recruits. Johnson is concerned that athletes are more loyal to their teams or other athletes than the schools codes and ideals. Of course the culture of the academy and military in general, I would argue, is about loyalty to ones "brothers and sisters" or immediate peers in the group. I dont find it surprising that the loyalty (to country, to fellow soldiers) that is central to military ideology has resulted in a situation such as this. There are plenty of other military scandals that reveal a culture of secrecy and privilege stemming from this version of loyalty. The question remains: will this publicity and the multiple investigations lead to an investigation by OCR? Are the academys Title IX policies and procedures part of the issue here?
Less than a month ago I wrote about the prospect of former Oregon basketball player, Brandon Austin, being recruited by a school--the third of his collegiate career. Austin started at Providence College, was dismissed from that team for sexual assault then went to Oregon where he committed sexual assault again--in the form of a gang rape with other team members--and was again dismissed. Criminal charges were not filed in either case. And now he is going to a junior college in Florida to play ball. As I noted last month he was being wooed by a school in Kansas, but that school opted not to make him an offer. Northwest Florida State College did. And administrators--unlike those at Oregon who claim ignorance--know of Austins past. And they think they can help him. Said the head coach: "We have the experience, support and resources to help Brandon get back on track towards graduating and help him be a successful student athlete on and off the court." We see professional athletes passed around teams after committing various crimes and misdemeanors. And though some of us know that this happens in intercollegiate athletics, there is less visibility. But I argue that there is more liability--for the school that takes on these athletes. Even if athletes such as Austin are not criminally charged, they have been disciplined by their schools (i.e., kicked off or suspended from teams). If the new school knows of that history and that athlete again commits sexual assault what kind of case would a victim have? It probably depends on the measures the school takes when the student arrives on campus. What kind of resources and support will Austin receive in Florida? Individual therapy? Group therapy? How is the school going to specifically address his history of sexual violence against women? Studies show that the many campus sexual assaults are committed by repeat offenders. Austin has already shown himself to be a repeat offender. Unless Northwest Florida intervenes and tries to break this pattern, I think they put themselves in danger of being partially responsible if Austin offends again.
Today a group of bi-partisan senators proposed new legislation in Congress called the Campus Accountability and Safety Act, aimed at addressing the problem of sexual assault on college and university campuses. Included in its provisions are: * a required annual survey of students at every university in America to help understand the climate of sexual violence on campuses * requirements that all campus personnel who deal with sexual violence in some way receive specialized training * a requirement that colleges and universities provide confidential advisors to serve as a resource to victims of sexual violence by helping to coordinate their support services, educational accommodations, and dealing with campus authorities and law enforcement * a prohibition on colleges sanctioning a student who reports sexual violence in good faith (such as punishing the victim for underage drinking) * requirement that the Department of Education publish the names of all schools with pending investigations, final resolutions, and voluntary resolution agreements related to Title IX * a requirement that colleges and universities use a uniform process of campus disciplinary proceedings that doesnt allow, say, athletic departments to handle sexual violence in a different way than the rest of campus * a requirement that colleges and universities coordinate with local law enforcement to delineate respective responsibilities and areas of jurisdiction Some of these provisions would codify (and thus make mandatory) recommendations contained in the White House Task Force report that came out last May, while others echo requirements in the Office for Civil Rights 2011 Dear Colleague Letter (which, unlike the requirements contained in a statute, could be easily revoked by a future Secretary of Education serving under a different presidential administration). But one additional provision of CASA is (as I told the New York Times) a potential "game changer" and that is the addition of financial penalties other than federal funding withdrawal as a tool the Department of Education can use to deal with schools that violate provisions of Title IX. This is considerably important. Because it the severity of revoking federal funds (leaving an institutions students without financial aid, most notably) the Department of Education has never and probably will never revoke federal funding over Title IX compliance. And schools know this, so the law provides little incentive for them to proactively comply. Under this new law, however, schools would have more to fear than just a scolding and a compelled promise to prospectively comply. They could potentially be fined for an amount equal to 1% of their total operating budget. I would expect the threat of such a penalty to more effectively motivate compliance than Title IXs current enforcement mechanism. The bills co-sponsors are Claire McCaskill (D-Mo.), Dean Heller (R-Nev.), Richard Blumenthal (D-Conn.), Chuck Grassley (R-Iowa), Kirsten Gillibrand (D-N.Y.), Kelly Ayotte (R-N.H.), Mark Warner (D-Va.), and Marco Rubio (R-Fla.). The fact of bipartisan support certainly increases the bills odds of passing into law, though it is also worth noting that other Title IX type laws proposed in Congress have not necessarily passed just because of bipartisan support. (Im thinking of the High School Athletics Accountability Act, the Safe Schools Improvement Act, and the Student Nondiscrimination Act). We will have to wait and see if CASA gets taken more seriously because of the high profile nature of the problem of campus sexual assault.
As we noted, George Fox University was granted a religious exemption allowing it to enforce its policy that students will be housed by their anatomical sex. But the case for the transgender student who is asking to be housed with other male students is not over. Even though the university is now exempt from a Title IX lawsuit over this, the Justice Department is looking into whether the universitys housing policy violates federal housing laws banning discrimination. We were pleased to see our friend and colleague Jennifer Levi, who is the director of the Transgender Rights Project for GLADD, weigh in: “What we’ve learned in the few cases that have gone forward is that the only humane and consistent way to determine a person’s sex is based on their lived experience as male or female, that any other approach, whether anatomy or chromosomes, will discriminate against some people." George Fox did change its policy to say that it would house students based on anatomical sex rather than birth sex (the original policy). As I already noted, this is both a very conservative and burdensome standard. And I have a hard time believing that they will start to check the anatomy of every student to make sure he or she is housed correctly. But if they do, they could call on the IOC and IAAF for some advice. Those organizations have a long history of trying to determine gender based on anatomy. Of course, even those groups have given that up and are now using (in equally problematic ways) chromosome testing.
Weve blogged recently about a handful of religious schools -- namely George Fox, Simpson, and Spring Arbor universities -- that have been granted an exemption from complying with Title IXs application to transgender students. This post is intended to provide more background and context for the process and scope of Title IXs religious exemptions more generally, which is something that until now has not really come up a lot -- at least since weve been blogging. First, as I mentioned in my George Fox post, the basis for the religious exemption is contained in the statutory text of Title IX. See 20 U.S.C. 1681(a)(3) (exempting "any educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization"). Title IXs implementing regulations, promulgated in 1975, also acknowledge the religious exemption and require institutions seeking the exemption to file a statement with OCR "identifying the provisions of this part which conflict with a specific tenet of the religious organization." 34 C.F.R. 106.12. The Department of Educations Office for Civil Rights requires educational institutions to submit paperwork (called an "Assurance of Compliance") when they receive federal funds, promising that they will comply with Title IX and the other civil rights law that are conditioned on federal funds. In 1977, OCR (which was then part of the Department of Health, Education, and Welfare) published instructions for submitting the assurance. Contained in that document were specific instructions for applying for the religious exemption -- included there because OCR contemplates that requests for exemption will be filed at that time, though that is not a legal requirement and institutions can apply for the exemption at any time. These instructions clarified three types of religious institutions that are eligible for the exemption -- criteria that OCR still uses today: 1. A SCHOOL OR DEPARTMENT OF DIVINITY -- meaning, an institution that trains ministers and other members of the clergy, like a seminary. This category of exempt-eligible schools seems influenced by and consistent with, the recognized doctrine of "ministerial exemption" from civil rights laws. The First Amendments protections of freedom of religion limits the degree to which government can interfere with such core church functions as hiring (and here, training) personnel that are integral to the practice of religion -- like clergy and other religious leaders. 2. AN INSTITUTION THAT REQUIRES ITS FACULTY, STUDENTS, OR EMPLOYEES TO BELONG TO THE RELIGION OF THE ORGANIZATION BY WHICH IT CLAIMS TO BE CONTROLLED. My impression of this category is that it borrows from the legal distinction in public accommodations law between organizations or establishments that are open to the public and those that only open to members -- the latter receiving more latitude to exclude people in ways that would otherwise be unlawful discrimination. In general, the justification for this type of exemption is, again, rooted in the First Amendment -- the idea being that forcing an organization to accept as members people who do not adhere to its beliefs interferes with the practice of religion. Notably, however, religious undergraduate institutions are already permitted to discriminate on the basis of sex in admissions by virtue of being private. So this category contemplates allowing religious institutions to take that discrimination one step farther: to discrimination in some way in the manner that students or faculty are treated, rather than whether they are eligible to be admitted or hired. 3. An institution whose charter, catalog, or other official publication contains an explicit statement that it is CONTROLLED BY A RELIGIOUS ORGANIZATION OR AN ORGANIZATION THEREOF OR IS COMMITTED TO THE DOCTRINES OF A PARTICULAR RELIGION, and that members of its controlling body are appointed by the controlling religious organization, and that it receives a significant amount of financial support from the controlling religious organization. This category thus seeks to differentiate between private institutions that have a religious affiliation and tradition (a category that, as Kris pointed out, could include virtually all private colleges founded before 1900) and institutions that are actually subject to religious control -- the latter requiring (a) an express statement of that control by or adherence to that religion; (b) trustees or regents, etc. who are appointed by a religious organization; and (c) financial support from that religious organization.Reportedly, all three educational institutions that have received religious exemptions in recent weeks -- George Fox, Simpson, and Spring Arbor universities -- qualified for the exemption under this third category. George Fox --whose religious control I questioned in an earlier post -- is in fact controlled by the Northwest Yearly Meeting of Friends, which appoints four of its seven trustees. Also notable is that it appears OCR is open to revisiting the question of religious control in the event of a challenge, as the Assistant Secretary provided assurance that the agency would "potentially reach out to verify further whether a school is controlled by their stated religious organization" if it receives a complaint for something potentially subject to an exemption that has been granted. In addition to being controlled by a religious organization, the exemption only applies to institutions whose religious tenets conflict with some aspect of Title IX compliance. Historically, the most common example of such conflict related to regulations prohibiting discrimination on the basis of pregnancy. For example, one exemption considered in 1987 congressional report described an exemption for a school whose religion prohibited unmarried pregnant student to continue to live on campus, or to have unmarried female employees serving as role models for female students. Other early exemptions related to sports, physical activity, and modesty, such as an exemption that would allow a school to prohibit "mixed swimming" and another to potentially restrict the athletic opportunities of female teams by sending home opponents who show up in immodest uniforms. Recent requests for exemption have focused on Title IXs application to transgender students, accommodation of whom would require compromise of the belief that God created man and woman to procreate heterosexually. For example, Simpson University stated its belief that it is sinful to "construct ones own sexual identity by medically altering the human body, cross dressing, or similarly practicing behaviors characteristic of the opposite sex." Because their religions do not validate transgender identities, Simpson and the other exempt universities sought permission to exclude transgender students from gender-consonant housing so as to avoid sinful "cohabitation" between members of the "opposite sex." On related grounds (i.e., opposition to the mixing of "different" sexes) they received permission to exclude transgender students from locker rooms, rest rooms, and athletic teams that dont accord to their assigned sex at birth. In conclusion, it appears that OCR does use published criteria to isolate those religious institutions that are eligible for the exemption by virtue of being subject to a religious organizations control. It also appears to have required an articulated conflict between Title IX compliance and the institutions faith. Personally, I dont agree that Title IX should have provided educational institutions that accept federal funds and which already have permission to ignore Title IX when it comes to admissions so much latitude to discriminate. Thats an awful lot of having ones cake and eating it too. But after digging into the matter a little deeper I am at least reassured that OCR is applying the exemption in a manner consistent with the text of Title IX.
Spring Arbor University and Simpson University have both asked for and been granted Title IX exemptions based on religious grounds from the Department of Education. This means that the Michigan and California schools will be allowed to discriminate on the basis of gender identity. George Fox, as we have written about, also received a religious exemption after asking for one that would allow them to deny housing (all of which is sex segregated) to a transgender student. Are we seeing a pattern here? The DOE is saying there is very little it can do about religious exemptions. But what standards are being applied when assessing a request for religious exemption? A representative from Spring Arbor University has said that the school is "Christ-centered." But what does that mean? They say they are affiliated with the Methodist Free Church. But what kind of affiliation creates a case for exemption? Spring Arbor has already dealt with this issue after keeping from the classroom a professor who transitioned while working for the school. There was an EEOC complaint that the university settled in 2007 (unclear what the settlement entailed). Simpson is affiliated with the Christian and Missionary Alliance. The latters website lists the school as one of six "education centers." I imagine the other schools will also be asking for exemptions. The term affiliation needs to be clarified--what is the difference between affiliation and control?--as do the criteria for religious exemptions--or at least made more transparent.
Two University of Texas football players were arrested this week on various charges related to a June assault of a female student in the UT dorms. The woman reported the assault immediately. Police found text messages between the two men who were trying to get their respective stories straight. There is also at least one photo taken during the assault. Not a great time for such attention for both first-year football coach Charlie Strong and embattled president Bill Powers. Strong suspended both players for an indefinite time period and there is a school investigation underway and expected to be completed before the end of the summer. It seems from here that UT is taking the right steps. Investigations were started and will completed in a timely manner. The players were suspended from the team. I suspect the conclusion of the schools investigation will result in protections afforded to the victim. No word on what services the university has offered her in the wake of the incident or whether the men were allowed to stay on campus while both investigations were pending. This case is a contrast to FSU which waited a significant amount of time before investigating, which never disciplined quarterback Jameis Winston. And hopefully UT will take a lesson from the Arizona State case where the university allowed back in the dorms a football player who had been kicked out for aggressive behavior against women when he was attending a summer program. When he returned in the fall, he raped a student. The university settled for $850,000 in 2009--five years after the incident. Obviously this is just the start. Criminal proceedings will follow as well as university sanctions. But UTexas is on the right path at the moment with both athletics and administration working together.
Today it was reported that Jonathan Waters, the director of Ohio State Universitys marching band, was fired for tolerating sexual harassment among the students in the band. In response to a parents complaint about the bands secretive and sexualized atmosphere, the University conducted an internal investigation into the matter and produced a report detailing its findings. Among them, the investigation revealed that Waters and other staff members supervised an annual tradition that involved students marching into the football stadium in their underwear at midnight. Another set of findings involved the sexualized nicknames assigned to band rookies by the upperclassment, which Waters knew about and sometimes used. The findings also detailed sexualized content in band newsletters, songs, and various tests, challenges required of rookies that Waters knew or should have known was going on. OSU concluded based on these findings that the band consisted of a sexualized and hostile environment, that Waters knew about and did not take adequate steps to prevent. Acknowledging its duty under university policy and Title IX, the university terminated Waters and vowed to realigm the band with the Universitys mission through stronger oversight, policies and procedures. This seems to be a good example of proactive behavior on the part of a university to uncover and respond to Title IX problems.
In April, I wrote about the expose into the police handling of the investigation into allegations of sexual assault against quarterback Jameis Winston. In that post, I noted the lack of effort on the part of the university to address the issues, seek accountability, and make efforts at changing the culture and policies at FSU. In a move that flies in the face of my theory that some schools are making changes to sexual assault policies and procedures for the purpose of PR, FSU announced this week that it would be hiring a Title IX director and two sexual violence coordinators. My surprise is two-fold. One, an announcement from a university in the summer generally gets less notice and two, the hirings are being spun as proactive: _Florida State is not waiting for the federal government to complete an investigation into the universitys responses to sexual assaults before it adds additional experts to the staff and adopts a new model for making students aware of their responsibilities for maintaining a safe campus._ They have waited a year and a half, however, after the initial triggering event. Winston allegedly assaulted a former FSU female student in December of 2012. The university is under new leadership which might be part of the impetus. An interim president took over in early April. Of course, the investigation will likely result in other necessary changes.
Late last week the University of Connecticut announced it had settled the lawsuit brought by five current and former female students. The women were accusing the university of mishandling their respective sexual assault cases. The $1.3 million settlement brings with it a no guilt finding and the withdrawal of the names of several of the women who had also filed a complaint with OCR. There are more names on that complaint, which continues to be investigated. The settlement will be divided among the five women with each receiving a different amount. What we found interesting was that the bulk of the money, $900,000, will go to the last woman who joined the lawsuit, a former student who was a first-year student at the time of her assault. She was also a goalie on the hockey team who was dismissed from the team after reporting she was raped by a member of the mens hockey team. Her coach, who left the team at the end of this past season, said she was not "stable enough" to play on the team. The university has said it was the goalies knee injury that lead to her release from the team. Obviously the amounts each woman will receive were carefully negotiated, but we have not heard the legal rationale for the large sum awarded to her specifically. It could be because of the loss of the opportunity to play college hockey, though there is no obvious monetary value there and the university did refund her tuition and expenses from the time she spent at UConn.
After being granted a religious exemption that allows the university to not house transgender students based on their gender identity, the school has updated its policy as it relates to this issue. As Erin noted the other day, the exemption itself is a little suspect, and the new policy may be new to GFU, but it is hardly an update. The new policy states that transgender students can be housed based on their gender identity if they have had sex reassignment surgery, specifically genital surgery. This is a highly restrictive policy, one that we have seen at the most competitive levels of sport (i.e., the Olympics and other international sport organizations) but one that has received considerable critique and certainly has no rationale when applied to students. The World Health Organization has expressed its disdain for policies that require surgery in order for transgender people to receive rights. Surgery is one, expensive and two, not always the desired path for many. Additionally, the health insurance GFU offers its students does not cover medical expenses related to gender transition including hormones and surgery.
Walt Bogdanichs article this weekend on the case of Anna, an undergraduate at William Smith College, who was sexually assaulted her freshman year likely raised awareness of campus sexual assault and shocked many readers. The details of Annas story of her assaults and how the school handled them are disturbing. They are not unusual, though. And unfortunately, though horrifying, they are not shocking to many of us who have been talking about this issue for years. There are almost 70 open investigations into schools handling of sexual assault. Schools are added weekly. Anna mentions that one person on her panel questioned her about how she conducted herself at the party at which she was assaulted making her think that administrators are a little out of touch with student life on their campuses. What this suggests is more than just that some administrators dont know that grinding is the preferred form of dancing, but that they are not aware of the culture on their campuses. Changing campus culture has been a focus of the movement. But is it happening? The Hobart and William Smith Colleges case points to no. Again, the story is not shocking, but it is dismaying. Because it looks like the school was more concerned with handling this quickly, than with handling it properly. Members on Annas panel were not trained. They lacked information about sexual assault and their own school culture; they asked irrelevant questions. The hearing was convened before the results of Annas rape kit were known to all. They did not protect her anonymity. She had no advocate with her. A 60-day window is provided for investigations; this one took less than two weeks. This is not simply an unfortunate situation. This is a situation born out of public image. The student activism on this issue and the government response has put every school on notice. And public images--something I myself have said to media outlets is a motivator for compliance--are suffering. Groups like Ultra Violet are also pushing the public image aspect as they seek greater transparency about the number of sexual assaults on campuses and how they are handled. But hearing about Annas case has made me wonder if public image concerns are overriding actual changes to campus culture and policies and procedures. But the image versus compliance issue was most palpable when I read this: _College administrators have their own incentive to deal with such cases on campus, since a public prosecution could frighten parents, prospective students and donors. Until last year, Hobart and William Smith’s chief fund-raiser also helped oversee the school’s handling of sexual assaults. The two functions are now separate._ If a school is approaching sexual assault as a PR issue, there will be no compliance, no change in culture.
George Fox University is a Christian institution in Oregon that was founded on Quaker principles. In April, it denied a transgender student named Jayce M. the right to live in on-campus housing consistent with his male gender identity, offering him instead the opportunity to live with other men in off-campus housing if certain conditions were met. With the help of attorneys, Jayce filed a Title IX complaint with the Department of Educations Office for Civil Rights, arguing that the decision discriminated against him on the basis of gender identity. The complaint seemed poised to allow OCR the opportunity to give effect to the broad, trans-inclusive definition of sex discrimination that it has lately been espousing, such most recently in its guidance on sexual assault. But instead, OCR has granted a religious exemption to George Fox that has effectively immunized the institution from Jayces Title IX challenge. What is the legal basis for a religious exemption from Title IX? The statute itself exempts "any educational institution which is controlled by a religious organization if the application of this subsection would not be consistent with the religious tenets of such organization." 20 U.S.C. 1681(a)(3). This effectively creates two conditions: (1) that the school actually be controlled by a religious organization, i.e., not just a private school with a certain religious tradition; and (2) a showing that Title IX would apply in such a way that is inconsistent with the organizations religious tenets. Additionally, Title IX regulations require institutions to file a statement with OCR "identifying the provisions of this part which conflict with a specific tenet of the religious organization." 34 C.F.R. 106.12. Thus, the exemption is narrow in scope -- in that it only applies to the aspects of Title IX for which the institution can articulate a conflict with religious tenets -- and narrow in application -- in that it only applies to institutions that are run by churches, not just that happen to have a religious outlook or tradition. Both limitations are important to ensure that Title IX doesnt contain a giant loophole that offers any private school a justification for using federal money in the service of discrimination that would otherwise be prohibited by law. Interestingly, when I looked up the business status for George Fox University, I learned that it is incorporated as "public benefit" non-profit corporation, and not a religious non-profit corporation (which is also a type of corporation that exists in Oregon). In other words, I am having trouble confirming that George Fox University, despite its Quaker heritage, is actually controlled by a religious organization as the statute requires. (In contrast, when I went onto Notre Dames website, it took me two seconds to find the name of the religious organization that controls the school.) It is also interesting to note, as this article does, that GFU applied for the religious exemption after Jayce had already applied to live in male housing. One would think that if Title IXs application to transgender students conflicted with some fundamental tenet of Quakerism, the institution would have applied for the exemption in advance, in the manner contemplated by the regulations. Applying for it in retrospect gives the appearance of a defensive move. Just recently, the Supreme Court ended its Term with a decision that allows religious colleges to opt out of the requirements of the Affordable Care Act to make coverage for birth control available to employees and students. If this decision emboldens more religious institutions to claim exemptions from other laws as well, like Title IX, it will be increasingly important for OCR to carefully scrutinize all applications for religious exemption to ensure that both requirements -- the religious tenet conflict AND control by a religious entity -- are met.
The campus sexual assault survey administered by Senator Claire McCaskills office (more on the survey shortly) found that 22 percent of schools responding said that their athletic departments handle sexual assault accusations against their student-athletes. This is obviously a problem (and I suspect that it is larger than the survey reports) as evidenced by many cases (University of Montana, University of Iowa, University of Michigan, University of Missouri, to name a few) we hear about. The cover-ups, of course, happen both with assaults committed by athletes and non-athletes. The survey results point to the need for every case to be handled the same way by the same committees/commissions/boards. But the somewhat separate issue not addressed is that the cover-ups among athletic departments have lead to student-athletes being dismissed as quietly as possible--usually suspension from team and departure at the end of the semester--sometimes facing no formal sanctions from the institution. Where do they go? Some of them go to other schools and continue to play sports--and commit sexual assault. As we wrote about earlier this summer, Brandon Austin started playing basketball at Providence College. Accused of sexual assault but not criminally charged, he transferred to Oregon after being suspended from the PC team. In June he and two of his teammates where forbidden from returning to school for ten years--again because of sexual assault charges. He has been looking at a community college in Kansas which is known for feeding basketball players to DI schools. But as more attention is drawn to these cases, these covert transfers might become less common. One of the other suspended Oregon players had intended to go to St. Johns; but the school has decided not to recruit him.
We have covered the cases and investigations into sexual assault at the University of Montana, a place TIME referred to as a rape capital. One of the early posts was from Erin and about the accusations against members of the football team. The football coach and AD were fired. In this post Erin mentions additionally that a restraining order was taken out against the quarterback. It is this case that is of interest to _Into the Wild_ author Jon Krakauer who has asked for records related to the case be released. After our post about the restraining order, it seems that the quarterback, Jordan Johnson, was found by the university to be guilty of rape and was expelled. Except he wasnt expelled. He was suspended from the football team and reinstated in time to help the team to a 10-3 record in 2013. He was acquitted by a criminal court. Krakauer wants the records from the university hearings, but because they are student records, the university will not release them. He has said failure to release the records of the education commissioner (he is looking for information about how the expulsion order was reversed) is a violation of state open record laws and the state constitution. It will be interesting to see if he can get that information and, of course, what he does with it.
A former student at University of Denver is bringing a lawsuit against the school for violating Title IX in the ways they handled her reported sexual assault. The details, provided by the woman, seem--though awful--far less complicated than other cases we have seen in the past few years. She believes she was drugged at a party and then raped at a students apartment. She reported the rape to the police as soon as she got back to her dorm. She was taken to the hospital. The school launched an investigation (the police investigation did not lead to charges). It is at this point that the victim feels things were handled improperly. She reports not being given all the information--in writing--about how to proceed during the disciplinary hearing. For example, she did not know she did not have to be in the room with her alleged assailant during the hearing. A school representative claims that the lawsuit was motivated by the fact that the victim did not like the findings of the disciplinary hearing. The board found that the student did not realize he was forcing sex on the victim. The finding does seem kind of "off" given the physical evidence. I do not know how DU defines consent, but it seems hard to believe someone who has been drugged can give consent. Im not sure though, given these early details, how much of a factor the finding is in this case.
Someone has challenged the University of Southern Californias recently announced plan to provide four-year scholarships to football, and mens and womens basketball players. As Erin noted the other day, the disproportionate benefit to male student-athletes is likely a Title IX violation. And a properly signed complaint (we dont know by whom at this point) to OCR is challenging the new policy and pointing out other Title IX violations at the school including: less pay for head and assistant coaches of womens sports; fewer womens coaches, fewer opportunities for female student-athletes, inequitable funding of womens sports; inequitable funding of recruiting. Differences in funding and salaries and positions do not always equal Title IX violations. If athletic departments can justify the differences and prove they are providing a similar quality of experience to men and women, this is enough. That being said, in addition to the likely problems with four-year scholarship distribution, the differential between average salaries between coaches of mens and womens teams at both the head and assistant coach level is startling. Head coach average salary: $647,202 (M) $129,552 (W) Asst coach average salary: $200,871(M) $45,629 (W) We dont know whether OCR will visit the LA campus to investigate. Its possible they will ask USC to do its own study and address the disparities and report back. I do believe they will have to explicitly address the scholarship issue and it would be nice if we could see some progress on salary equity.
On Monday, University of Southern California announced that it will offer four-year scholarships to all scholarship athletes in football, mens basketball, and womens basketball. This modifies the universitys existing practice of offering all scholarships on a one-year, renewable basis. Multi-year scholarships have only been permissible under NCAA rules since 2012. The NCAA actually banned them in 1973 as a means to promote competitive equity by leveling the playing field for schools that cannot afford to take that kind of risk. But concerns for athletes welfare and education motivated the NCAAs change of heart, and reportedly, USCs as well. An athlete with a four-year scholarship has "job security" if you will -- they cannot lose their scholarship status as long as they continue to follow team and NCAA rules. An athlete with a renewable scholarship has to worry every year that their coaches will replace them due to poor performance or injury -- leaving them to either figure out how to cover tuition or else drop out of school altogether. Multi-year scholarships are thus quite beneficial to athletes. But like any benefit, they must be allocated on a gender-equitable basis in order to comply with Title IX. Title IX regulations specifically address athletic financial aid at 34 C.F.R. 106.37(c). This provision requires that aggregate dollar amount allocated to athletes of sex be proportionate to the ratio of athletes of each sex -- i.e., if 50% of the athletes are female, they should receive 50% of the overall available athletic financial aid. Yet this provision is likely unaffected by an inequitable distribution of multi-year scholarships versus one-year renewables. This is because a multi-year scholarship paid out over the term of years does not increase the allocation of athletic financial aid in a given year (one-fourth of a four-year scholarship and a one-year scholarship are the same in dollar amounts). But elsewhere, at 34 C.F.R. 106.41(c), the Title IX regulations mandate that athletic opportunities receive equal treatment based on sex. For example, under this provision, it would be unlawful to provide higher quality equipment or facilities to only mens sports. "Tiering" is still permissible -- a school does not need to provide the same benefits to all sports -- but there must be gender equity within the tiers themselves. In my opinion, a school that provides four-year scholarships to 98 male athletes (85 football scholarships, 13 basketball) and 15 female athletes violates 106.41(c) -- the same way that it would violate Title IX to provide any other perq on this inequitable basis. If this is hard to understand, imagine that USC provided laundry service to 15 female athletes and 98 male athletes -- a clear violation of equal treatment. The "job security" aspect of a four-year scholarship relative to a one-year renewable is just another characteristic of how athletes are treated, similar to laundry service. Moreover, because the regulation says that the Department of Education will enforce this provision by considering a number of enumerated factors "among others," it is not relevant that 106.41(c) does not expressly mention multi-year scholarships a factor of equal treatment. Finally, it will not be sufficient for USC to justify its policy as only pertaining to revenue-producing sports. In 1974, Congress considered an amendment to Title IX that would have exempt revenue-producing sports. But the fact that this amendment failed to pass underscores the laws agnosticism when it comes to revenue. Neither Congress, the courts nor the Department of Education have ever endorsed a double-standard for revenue and non-revenue sports. It is good that schools are being responsive to concerns about athlete welfare and education. But the law requires that they do so on a gender-equitable basis.
Yesterday the Department of Education announced a new rule to the Clery Act. It includes the addition of national origin and gender identity to the definition of a hate crime. It adopts the FBIs definition of rape, which is often broader than that found in state law and does not consider gender as part of the definition. Another change, one that should hopefully quiet the recent backlash centered around alleged violations of the rights of the accused, is a provision that allows both the accuser and accused to pick an adviser of his/her choice to attend campus hearings. The institution can still dictate how that adviser may be used and involved, but this means that theoretically both parties could have a lawyer present. Ensuring greater confidentiality for victims who may be seeking help but do not want to go through campus or legal proceedings is also part of the new rule. And finally, the new rule calls for broader reporting of campus violence. Stalking, domestic violence, and date-related assault. These were proposed as part of the governments commitment to making schools more accountable for campus climate and for greater transparency. The new rule was published today in the _Federal Register_ and public comments will be accepted until July 21.
The Department of Education recently opened an investigation into allegations that James Madison University violated Title IX by failing to adequately punish three male students found responsible for sexual assault. The university has reportedly subjected the three to a ban from campus that kicks in _after _their graduation, raising serious questions about with it has satisfied its obligation under Title IX to take reasonable steps aimed at preventing the reoccurence of sexual assault. In January of this year, the victim reported that the three male students took advantage of her intoxication while they were all away together for spring break the year before. They videoed themselves groping her and trying to take off her bathing suit and then later circulated the video -- which reportedly shows the victim saying "this isnt okay; this isnt a good idea" -- around campus. A judicial officer found the men responsible and, as punishment, prohibited them from taking part in commencement or returning to campus as alums. Yet, they were able to obtain their degrees. The victim, meanwhile, has withdrawn from the university.