- Former University of Toledo Softball Coach Files Discrimination Suit
- Department of Education Releases New Clery Act Regulations
- Attorneys Fees Awarded to Prevailing Plaintiffs: An Example from Delaware State
- Another California School District Settles Title IX Case Over Harassment and Discrimination of Transgender Student
- In my inbox: Trans students at women's colleges
- Comparing Universities' Response to Charges of Sexual Assault -- What a Difference a Year Makes?
- Football season cancelled in NJ
- Settlement in Seattle sexual assault case
- Title IX Invoked in Early Efforts to Protect Rights of Female Athletes at Alabama, Berkeley
- Catholic Diocese in PA Bans Schools' Participation in Coed Sports
- California Requires Affirmative Standard for Consent to Sex at State-Funded Colleges and Universities
- Results of an investigation: The SUNY system
- Intercollegiate football <--> NFL: The case of Jameis Winston
- Ninth Circuit Affirms Title IX Win Against California School District
- White House Unveils New Public Awareness Campaign Aimed at Campus Sexual Assault
- Do Competitive Spirit Competitions Offer Athletic Opportunities that Count Under Title IX?
- Opportunity for Emerson
- OCR Concludes Compliance Review of Ohio State
- Light punishments, heavy mattresses, and lawsuits: Campus sexual assault round-up
- Back to campus: Policies and practices for trans college students
- Mount Holyoke College Clarifies Admissions Policy in the Most Trans-Inclusive Way Possible
- Title IX, sexual assault and high schools
- High School Basketball Hazing Case May Go to Trial
- Oklahoma colleges handling misbehaving student athletes
- NCAA Reform and Title IX
Last week, the former softball coach at the University of Toledo filed a Title IX lawsuit against the institution in federal court, alleging that she was the victim of sex discrimination and retaliation and seeking damages and reinstatement to the position from which she alleges she was forced to resign. The coach, Tarrah Beyster alleges that she advocated for gender equity in her athletic department including by challenging: the disparity in multi-year contracts, which were granted to male coaches, and other gender-based pay inequity; the departments failure to assign a long-term grad assistant to the softball team like it did for the baseball team; preferential treatment for the baseball team in allowing it to keep the revenue from renting out its field; the departments failure to provide the dirt for the field or a new backstop to the softball facility, despite providing both to the baseball team; the departments requirement that the softball team to do its own fundraising to bring the outfield fence into compliance with NCAA regulations; and the singling out of softball to share a locker room with other teams, as well as requiring female coaches to share a locker room with referees and officials. Beyster alleges that, after raising these concerns, she endured retaliation in the form of a hostile work environment -- a former associate athletic director called her "Coach Bitch" -- as well as being charged with insubordination at a surprise disciplinary hearing in which she was forced to resign. She further claims that the "insubordination" charge is pretext for retaliation by alleging that other coaches have engaged in more egregious offenses, like having relationships with their students, without being fired. Retaliation claims by coaches and administrators are increasingly common in college athletics, especially in the wake of a 2006 Supreme Court decision affirming the statutes application to retaliation, and plaintiffs have successfully obtained verdicts or settlements in a number of them. For examples, see here, here, here, here, here, here, here, here, here, and here.
Yesterday the Department of Education released new regulations implementing the revisions to the Clery Act imposed by Congress when it reauthorized the Violence Against Women Act last year. The Clery Act requires colleges and universities to report statistics on crime that takes place on campus and in related areas. Specifically, VAWA required that Clery’s existing requirement to include sex offenses like rape and sexual assault in their annual security reports be expanded to include other sex offenses including dating violence, domestic violence, and stalking. VAWA also required that colleges and universities include in their reports information about their policies and procedures for preventing and addressing those offenses when they occur.
The Department of Education’s job in promulgating regulations was to flesh out the details of those requirements, such as by providing definitions of the newly-included sex offenses, as well as the content to be included in the institution’s disclosures about policies and procedures. The process of creating those regulations began last year when a committee of experts representing a variety of stakeholders convened to help negotiate a draft of these proposed rules. In June, the Department published the draft and opened it for public comment. The final rule announced yesterday contains no surprises in the form of major departures from the earlier-published draft. It does include insight into the agency’s reasoning for rejecting suggestions from commenters that certain changes be made.
Here are some highlights of the new regulations: _ITS ALL ABOUT THE DEFINITIONS. _Definitions are a big part of the new regulations, which seek to ensure that institutions are reporting on crimes and offenses in a consistent manner. However, the Department pushed back on suggestions that the regulations provide a uniform definition of consent as it used in the description of sexual assault and other sex offenses. For one reason, an institution’s annual security report must include all offenses that are reported, not only those that result in discipline that turns on a precise finding of the lack of consent. For another, states use different definitions of consent in their own laws, a fact that could cause confusion and make reporting more burdensome for institutions in those states whose definition differs from whatever definition the Department could have required. I think, in addition, that Title IX enforcement provides some assurances that institutions wont vary too dramatically from suggestions the Department of Education and the White House have already provided (here and here, e.g.) for defining consent as voluntary, revocable, not implied by past relations, and not applicable where the individual is impaired, unconscious, or asleep._TRANS-INCLUSIVE SECURITY REPORTS_. The requirement that colleges and universities report statistics on hate crimes has been amended to include crimes motivated by the victim’s gender identity, which should lend visibility and transparency to campus violence targeting transgender and gender-nonconforming people. _PREVENTION AND INTERVENTION MUST BE ADDRESSED_. Colleges and universities must describe their “primary prevention and awareness programs” related to sexual violence, including the institution’s policy prohibiting such conduct, its policies and procedures for dealing with sex offenses that are reported, and its ongoing efforts to promote bystander intervention and prevention. In requiring efforts aimed at "primary" prevention the Department is signaling that it requires institutions to go beyond informing students how to keep themselves safe, but to target and prevent "primary" offending behavior itself. _NO STANDARD OF EVIDENCE REQUIREMENT._ The regulations’ requirements for the substance of disciplinary procedures that must be included are compatible with the Department of Education’s interpretations of Title IX in that both require institutions to provide symmetrical rights to the victims and accused. One difference, though, is that the new Clery regulations do not require institutions to use any particular standard of evidence during a disciplinary proceeding (only that they report whatever standard they use). The Departments analysis makes clear that "A recipient can comply with both Title IX and the Clery Act by using a preponderance of evidence standard." Still, I regret that the Department has missed an opportunity to elevate the preponderance standard from a requirement imposed by agency guidance (which can easily be revoked by a subsequent presidential administration) to the status of binding regulation that is more difficult to change. _ATTORNEYS MAY SERVE AS ADVISORS_. Another controversial issue addressed in the Clery regulations regarding the disciplinary process is the role of the advisors to both the victim and the accused. The regulations require institutions to allow students to be represented in the process by an advisor of their choice, and any restrictions on the advisors role must apply symmetrically to both parties. Some commenters argued that the regulations should prohibit attorneys from serving as advisors, in order to prevent the process from becoming judicialized and potentially more complicated, expensive, and unfair to whichever side cannot afford an attorney. The Department thought those concerns were best addressed by institutions in their decision on whether and to what extent to limit the advisors role. These regulations are effective as of July 1, 2015, but should likely inform institutions existing efforts to comply with the amended Clery Act, which has already gone into effect.
The American judicial system typically requires each party to pay their own way when it comes to attorney fees -- in contrast to, say, the British system that has a "loser pays" approach. The American system can make it difficult for individual plaintiffs to get justice in some cases. If the plaintiff is seeking large monetary damages, she may be able to make an arrangement to pay an attorney on "contingency" or out of the proceeds of the case. But if the plaintiff is seeking non-monetary relief, such as an injunction, this is not possible, and either she, or a pro bono attorney, would have to bear that cost. Fortunately, a statute applicable to civil rights laws litigation permits courts to make exceptions to the "pay your own way" American rule and require defendants to pay for the plaintiffs expenses of hiring an attorney and litigating the case. Sometimes, there are disputes about how much is reasonable to expect the defendant to pay, and those cases end up producing litigation themselves (and thus, get on my radar for possible fodder for blog). Thats what has happened in the Delaware State litigation. You may recall the litigation challenging the universitys decision to discontinue its womens equestrian team. In approving a consent decree to settle the case on plaintiffs terms, the court ordered the university to pay the plaintiffs attorneys fees -- not only for the cost of litigating the case, but also for the cost of continuing to monitor the consent decree. When the plaintiffs lawyers -- which include the nonprofit Womens Law Project -- requested fees for monitoring the consent decree from Delaware State, Delaware State argued that some of the things they had charged for were not reasonable. Recently, the district court rejected Delaware States argument and ordered it to pay what the plaintiffs had requested -- a total of $77,293.64. This was on top of the $475,442.21 that Delaware State had to pay the plaintiffs attorneys back in 2010 to litigate the case in the first place. The substance of this particular dispute over attorneys fees, as well as the result, is not particularly unusual or noteworthy, but I offer it here as an example of this important aspect of civil rights litigation. The ability to recover attorneys fees to litigate a case makes it possible for plaintiffs and their lawyers to afford the cost of seeking justice. Moreover, that Delaware State has had to pay over half a million dollars -- in a case that settled even before the lawyers had to litigate motions for summary judgment, a trial, or an appeal, no less! -- also serves as a cautionary tale to erstwhile defendants that even where money damages are not on the line, it doesnt pay to discriminate. Decision: Foltz v. Delaware State Univ., 2014 WL 4954304 (D. Del. Sept. 30, 2014) (awarding attorneys fees for continued monitoring of consent decree).
The Department of Education announced this week that it has entered into a resolution agreement with the Downey Unified School District. The Department had been investigating a complaint filed on behalf of a transgender student who has consistently asserted aspects of her female gender identity since enrolling as a kindergartner in the Downey public schools. The complaint alleged that while she was an elementary student, the student was the subject of discrimination on the basis of gender identity when school officials disciplined her for wearing makeup when other female students were allowed to do so. As part of her punishment, she had to write a letter of apology for making male students uncomfortable. She was also allegedly the victim of verbal harassment including being called homophobic and sexist slurs by other students on the bus, to which school officials failed to adequately respond. After she fully transitioned to female during her fifth grade year, school officials refused to use her female name. While some things improved when the student graduated to a middle school that respected the students gender identity, name and pronouns, the student was still subject to peer harassment and the complaint suggested some school-wide measures that were not taken to try foster a more tolerant and inclusive climate. Based on her experiences in elementary school and middle school, the student wanted assurance going forward that high school administrators and faculty will be responsive to harassment, respectful of her gender identity and expression, and willing to treat her just like any other girl. The resolution agreement addresses the students concerns for the future by requiring the school district to "continue to treat the student the same as other female students in all respects in the education programs and activities offered by the District, including access to sex-designated facilities for female students." The district is prohibited from disciplining the student from "appearing in a manner that does not confirm to stereotyped notions of masculinity and femininity" and must remove all past such disciplinary notations from the students records. Additional measures the school district will have to undertake include hiring a consultant to help the school address the climate issues giving rise to harassment, conducting mandatory training for district administrators to ensure they are responding appropriately to gender non-conformance- and gender-based harassment, and reviewing its policies to ensure that transgender students are provided every opportunity to participate in all programs "in a manner that does not discriminate based on sex, gender identity or gender expression." Like the Arcadia school district resolution, which was similar, this resolution is an important signal of a school districts obligation under Title IX to protect equal rights of transgender student. While the requirements that school districts appropriately respond to gender-non-conformance-based harassment is not a new or groundbreaking application of Title IX, other aspects of the resolution are cutting edge. In particular, the requirement to treat transgender student like any other girl with respect to sex-designated facilities is part of an emerging definition of sex discrimination that enhances Title IXs effectiveness to challenge transgender students exclusion from the bathrooms, locker room, dormitory, or sports team that comports with their gender identity.
It was a trans-centric day for my email inbox. First I received this petition from change.org asking Smith College to adopt a more trans-inclusive admissions policy. This is somewhat similar to a petition from last year that was protesting the denial of admissions to a transwoman because her FAFSA identified her as male and after she was told by someone from Smith that this would not be an issue. The change.org petition, created by a group called Smith Q&A, actually includes a recommended admissions policy which they modeled after the one Mills College (in California) recently adopted. It is asking the administration to change its policy requiring female gender markers on transcripts and letters of recommendation for transwomen seeking admission to the college in light of the constraints--legal, emotional, cultural--that transwomen face regarding "official" change of gender or even being out as a transperson. Interestingly, the recommended admissions policy does not extend its categories for admission as far as the one announced earlier this fall by Smiths Pioneer Valley neighbor, Mt. Holyoke College. Though the policy created by Smith Q&A does allow for women who transition to men while on campus to remain on campus and enrolled, it does not allow for those men who are seeking admissions after already or in the process of transition. I suspect that Smith administrators and trustees will be addressing this (publicly) before the end of the academic year given the attention the MHC announcement received (and the comparisons being made to Smith) and because other womens colleges are also grappling with this issue... One of the other emails I received today was from a student who was pointing me towards this NYT article about transmen at Wellesley. Similar to what is happening at other womens colleges, transmen are becoming a more visible part of the student population with some transitioning while at school and others entering somewhere along their (own personal) transition process. And this visibility has some people quite concerned. If womens colleges are for women, as some point out, what does it mean when students who do not identify as women are entering leadership roles on campus? One student whom the story focused on entered Wellesley knowing he was transmasculine but was not out to his family and checked female on the admissions application. He chose the school because he felt it would be a safe space for him. This is an issue being raised as part of the discussion. It is not simply about who womens colleges are for? But what are womens colleges for? What is their mission in the 21st century? These are the questions womens colleges should be asking themselves--and many seemingly are doing so already. And this is an issue that exists in sports as well. Erin and I have explored the role of womens sport spaces and their role in womens community as part of our research. We looked at recreational sports and the history of womens-only rec sports asking similar questions. Who is this for? What purpose does it serve? What changes occur when transmen are included in these spaces? Interestingly I see parallels in the historical missions of many womens colleges and womens-only sport spaces. They were created as an environment (relatively) free from male influence, to empower women, to provide access to something that had been historically male-dominated. I understand why the presence of transmen feels threatening to some of these institutions, but I think more soul-searching needs to be done and more external searching for multiple voices from many constituencies about the meaning and purpose of womens spaces in our culture.
Last week, the day after he came off the bench to lead the University of Florida to a 10-9 victory over Tennessee, quarterback Treon Harris was accused of sexually assaulting a female student on campus in the early morning of Sunday, October 5. The following day, the University announced that campus and local police were working together to investigate forensic evidence, and that it was suspending Harris from the team in the meanwhile. Citing "no tolerance" for sexual assault, University president Bernie Machen vowed that student safety was the institutions top priority. But last Friday, Harriss accuser withdrew her complaint. The university reinstated Harris and he is expected to be back on the field this weekend. Meanwhile, 150 miles away in Tallahassee, Florida State is struggling to get a handle on its own controversy arising from allegations of its quarterbacks sexual assault controversy. This week Fox Sports News reported on evidence seeming to suggest that FSU officials and Tallahassee police worked together to delay turning over the case to the state prosecutor and give a "head start" to the attorney for accused Jameis Winston. Moreover, the universitys own public statement released in advance of that report as preemptive damage control may have backfired in that it has provided ammunition to the victims attorney to point out that the university athletic departments early role in the Winston case was concealed from other branches of the university like its Title IX office. What do we make of these two Sunshine State examples, in close proximity of time and space, but otherwise worlds apart? For one thing, I dont think well ever know what prompted a student to accuse Harris of sexual assault and then withdraw that complaint. One possibility is that she deliberately filed a false charge against Harris and then later had a change of heart; at the other extreme, its possible that she a victim two-times over -- first of sexual assault and then of social pressure to stay silent. Or, maybe she was deterred from standing by her initial accusation after weighing the downside of going forward and having to deal with upheaval that Winstons accuser has faced, against the downside of going without justice. If either of those last two possibilities reflect the truth, this case represents that we still have a ways to go as a society in terms of the support we provide to victims and the respect we give to their privacy. Yet by comparing University of Florida to Florida State, we might also come to a tentative conclusion that at least university culture is moving in the right direction in its response to sexual assault and the prioritization of student safety over athletics. Even though the charge was later withdrawn, and even though we dont know why, what the University of Florida did when it _had _the charge seems, from what we know, to have been the right thing. Declaring "no tolerance" for sexual assault was not a rush to judgment against Harris but an explanation for the universitys prompt response, transparency, and decision to suspend Harris as an appropriate interim measure to protect the students safety. Whatever remains uncertain about Florida States response to the charges against Winston, it is clear that its response was distinguishable from that of University of Florida under similar circumstances. Maybe we chalk that distinction up to the difference a year makes -- especially a year as big as this past one has been for public attention and legal scrutiny into to the problem of campus sexual assault.
There is no Friday night football game tonight in Sayreville, New Jersey. The school board cancelled the season earlier this month after systemic hazing of first-year football players came to light. More details are sure to emerge as an investigation into the incidents, which took place in the team locker room, allegedly unbeknownst to coaches or any other school staff person. This is not a Title IX case yet (and it may never turn into one) but some parents have hired lawyers and because the hazing was sexual in nature, the incidents described surely fall under the category of sexual assault. According to various reports, upperclass players would come into the locker room, turn off the lights, and grab a first-year player and then use a finger or some other object to anally penetrate the player (who was being held down). Sometimes the player was forced to suck on whatever had been put in him. The outrage over the cancelled season among some members of the community, including students, is especially disappointing. One, it speaks to the idea that football is a right and not a privilege--even when you are a highly successful program (making the playoffs for the past 20 years). Two, it trivializes sexual assault in two ways: when it occurs amongst boys (something recently addressed by the federal government in its new sexual assault laws) and when it occurs under the guise of hazing--a ritual required for admission to a group. And finally, in regards to students, these are young people who may be heading off to college in a few years, where the issue of sexual assault is being taken (more) seriously. So in regards to the female student who said "things have been blown out of proportion.We know the players, and hazing, to them, they didnt mean it in that way. It was more like being friends"--well the idea that talking about and reporting and punishing sexual assault is blowing things out of proportion is a paradigm that is shifting. And non-consensual digital anal penetration is not something that happens between friends.
The case of a high school student who was raped during a school field trip has settled out of court. The Seattle Public Schools initially tried to downplay and dismiss the students story that she was assaulted by a student-athlete on an overnight field trip when she was 15--despite the medical evidence that indicated sexual trauma. The student and her family continued to fight the school system, even when they moved out of state; and the story began to earn nationwide attention even as the school finally began a more substantive investigation. I wrote about the details of the case, the parents advocacy, and the schools response at the end of the summer so I will not rehash them here. The school district has agreed to a $700,000 settlement (which still needs to be approved by the school board) even though their investigation has not yet concluded.
A couple of Title IX stories about womens college athletics caught my eye this week. Here is a brief roundup. First, a former womens basketball player at the University of Alabama is using Title IX to challenge the athletic departments allegedly discriminatory manner of allocating scholarships as well as a "fairly broad and comprehensive pattern of bullying, harassment, retaliatory conduct and institutional hazing," according to the attorney representing Daisha Simmons. The details of these allegation are not entirely clear, but the alleged retaliation and harassment are argued to have crystallized in the athletic departments attempt to block Simmonss request to the NCAA for a waiver that would have allowed her to play immediately upon transferring to another institution. It appears from this article that the players lawyer has filed a complaint with the university, as it is noted that the complaint triggers an internal investigation by the university. However, if the matter is not resolved internally the players attorney says the matter would likely "wind up in federal court." Second, some members of the womens field hockey team at the University of California - Berkeley are considering whether to file a Title IX lawsuit against the institution to challenge its failure to provide them with a field the 2015-16 season. The Bears are already playing without a home facility this season while their field is under construction, and recently found out that the displacement would last into next season as well. As a result of their displacement, the team has to travel to other facilities -- the closest of which are an hour away -- for both competitions and daily practice. All that time spent commuting time cuts into the players available time to take classes and engage in other aspects of student life. If the players pursue Title IX litigation, I predict that central issue will be whether Berkeley treats other mens teams differently when they are displaced for field construction, such as by doing a better job to minimize the length of displacement and finding better temporary facilities for games and practices. If the players dont have an argument along these lines, however, it is possible that a court would see this situation as one that is unfortunate but that does not constitute sex discrimination.
The Harrisburg, Pennsylvania Catholic Diocese has prohibited its schools from participating in coed sports where "substantial and potentially immodest physical contact" could occur. The policy, which also cites "safety" as a motivating concern, not only prohibits area Catholic schools from integrating their wrestling, football, and rugby teams, but also requires their teams for forfeit games or matches against (or against teams that include) opposite-sex opponents. The policy change, which went into effect this summer, coincides with a federal district court ruling earlier this year that acknowledged a female students right under the Constitutions Equal Protection Clause to try out for her public middle schools wrestling team. Because the Catholic schools of Harrisburg compete against public schools that would be subject to the ruling, it seems plausible that that the courts decision was at least part of the Dioceses motivation to enact its new policy. Are there any legal implications of the Dioceses new policy? After all, Catholic schools, by virtue of being private rather than government-run, are not subject to the Equal Protection Clause. Therefore, despite the fact that courts have repeatedly rejected the generalizations and stereotypes (like safety and modesty) that underlie most decisions to separate girls and boys in sports, such rulings are not binding on private schools like those run by the Diocese. Moreover, while Title IX would apply to any of those private schools should they happen to accept federal funds (such as, for instance, to run a school lunch program), Title IX is strangely permissive of the segregation of contact sports. Therefore, a student who opts in to private, Catholic education has no legal right to try out for teams designated for the other sex. But I also think about the rights of students at public schools whose athletic opportunities are limited by virtue of their schools decision to schedule competition against Catholic schools who are subject to this policy. Public school students, whose rights are protected the Equal Protection Clause, have the right to play on coed teams. And even though Title IX does not require a school to allow coed contact sports, schools that do allow it are prohibited by Title IX from discriminating on the basis of sex against those who make the team. When public schools schedule athletic competition against a school that is required to forfeit, that schools coed team ends up with fewer opportunities for competition compared to the teams that are not coed. Or, the girls on that coed team, who could possibly be benched or volunteer not to play in order to preserve the game, end up with fewer competitive opportunities. Either way, scheduling games against the Catholic schools creates discrimination against those teams that have a female participant (and thus, on the basis of in sex). In the interest of compliance with Title IX and the Equal Protection Clause, public schools ought to leave the Catholic schools off of their competition schedules. The law may not insist that private Catholic schools treat students equally on the basis of sex. But the consequences of a Catholic policy should not be allowed to impair the experience of coed participants at public schools.
This week the governor of California signed legislation putting into effect a requirement that colleges and universities receiving state funds define sexual assault as the absence of affirmative consent in their codes of conduct. Dubbed the "yes means yes" standard, the requirement for affirmative consent is meant to clarify what is often the murkiest element of sexual assault by clearly defining as nonconsensual any sexual contact that both partners have actively agreed to. The law also clarifies that someone who is drunk, drugged, or asleep cannot provide consent.While consent must be actively affirmative, it need not be express, as the law allows universities to include nonverbal expressions of consent, such as nodding ones head or moving in closer. On the other hand, consent must be revocable by either party at any time, and must be renewed for each encounter. Ive read many comments that criticize this challenge as an unrealistic expectation that is at odds with college students natural behavior. Yet at the same time, I noticed several indications of support for an affirmative consent standard among students whose colleges have already imposed one. One male student characterized the Grinnell College student body as generally enthusiastic about its affirmative consent standard that was adopted in 2012, while another male Grinnell student testified that he has worked in questions like "are you all right with this?" and "do you want to go further?" without it feeling odd. And on NPR last night, a female student at Occidental said affirmative consent was "already happening" in her experience, which has included getting questions like "are you good?" that have created openings for her to be specific about what she wants. Affirmative consent cant really be such a hopelessly unrealistic standard, then, if its garnered support among students in some places and is already happening naturally in others. Moreover, its worth pointing out that male and female students alike have entered the public discourse on this issue in favor of affirmative consent. Its possible that students of both sexes realize that just little questions like "are you good?" seem like a small price for the kind of clarity that reduces risks for both the asker and the receiver of such questions. And even if the critics are right, and affirmative consent is at odds with college students natural behavior, it is also worth remembering that its not worst thing in the world to challenge and support students to do better than they otherwise might and to cultivate character and emotional maturity than they have coming in. That is, already, a role that is undertaken by higher education in this country, and theres little reason why that role cannot extent to the issue of consensual sex as well.
We get asked a lot about what happens when OCR conducts an investigation of a schools sexual assault policies and procedures and what OCR will find and what they will require a school to do. Obviously before an investigation is concluded, we can only speculate based on what we know about the situation on campus and what OCR has done in the past. With so many schools under investigation we are hearing more about what schools have done to get themselves on the list and less of what becomes of them when an investigation is concluded. Erin wrote about the changes coming at OSU earlier this month, but usually we have to search to find out what OCR is requiring of a school. I found, though, this piece about how the SUNY system has been proceeding after OCRs investigation. The voluntary agreement SUNY (with 29 schools) has entered into requires yearly reports for the next two years that assess the situation at each campus and show what steps are being taken to address sexual assault and harassment. SUNY seems to be taking the agreement seriously noting that their tactics for addressing these problems differ across their campuses. So rather than instituting broad scope system-wide measures, they are looking at what kinds of problems are arising at each location: faculty harassment, sexual assault during travel abroad programs, and harassment by ex-boyfriends and girlfriends. See the link above for more details about what is happening across the state.
I have been meaning to write about the re-investigation by Florida State University into the sexual assault allegedly committed by Heisman Trophy winner Jameis Winston. The initial investigation into the charges of sexual assault, which is required by Title IX, was done more than a year after the assault for a variety of reasons, according to FSU which include lack of compliance by the accused and the then-ongoing investigation by Tallahassee law enforcement which did not result in enough evidence, according to the state attorneys office. (Perhaps, in part, because there was a never statement by Winston.) The re-investigation does not, of course, ameliorate the Title IX violations. It should have occurred within 60 days of the reported assault. But lawyers for the victim (who is no longer at the school) say they are pleased with FSUs current investigation. Though what results and when (after the post-season?) remains to be seen. So all this has been going on during the late summer and into the start of the academic year. And then this past week students and bystanders report that Jameis Winston was standing on a table in the student union yelling something obscene about women. The university investigates and decides, on Wednesday, to suspend him for the first half of their game against ACC rival Clemson. Winston gives a press conference and apologizes for his actions and seemingly to the FSU community--but not to women, curiously. He talks about overcoming adversity---as it relates to being a football team playing without its star player. And then late Friday, FSU announces that after the "continuing investigation"* into the incident the powers-that-be have decided Winston should sit the entire game. The reasons for this revision of the punishment were never clearly explained. There was some speculation that Winstons account of the event did not coincide with that of bystanders. I want to discuss Winston in light of his current position as an intercollegiate athlete who has been accused of sexual assault and as a future NFLer. (It is presumed that FSU is just trying to keep Winston eligible for this season and that he will enter the draft.) The campus sexual assault movement has raised the issue of athletes committing sexual assaults and how these assaults are being addressed by schools (i.e., handled by athletic departments, athletes transferred to new and willing schools). This past week, as Erin wrote about, the White House added to the conversation by creating a public awareness campaign about campus sexual assault. Part of the goal is to make this a campus community issue and not one that exists solely between victim and perpetrator (and those adjudicating and investigating). Whatever its faults, the purpose is to change campus climates. FSUs handling of Winstons latest "bad decision" (Coach Jimbo Fisher) fails to do this. And Winstons own understanding of what he did and how he handled it also reflects the failure of the institution to convey (assuming that it actually wants to) that it takes these issues seriously. Winston dressed for the game and went out in warm-up and took snaps. Apparently there had been some miscommunication, because Fisher sent Winston to the locker room and he came out with just his shirt and sweatpants and a baseball cap. How did Winston not get the message that his punishment would be enacted? Did he think that when things started going badly (as they did in the first half) that someone from on high would come down and say "ok, thats enough. Go in there and be the hero." Some media folks had suggested that the original half game suspension was actually setting Winston up for hero status. What was also troubling, especially in light of the campaign for community responsibility, was the way Jimbo Fisher talked about the punishment. In the pre-game interview he refused to talk about it all saying that it was something they were handling. This was a reiteration of his earlier statements made after the announcement of the half-game suspension and critiques that it was too light: "Were in charge. Its our team. Thats our thought." That is not a statement that suggests greater concern for the sexually hostile climate that exists at FSU. Switching attention to the organization Winston will likely become a part of: the NFL. I dont think anyone needs a refresher on the image problems that organization is facing. The question is, what will the NFL do with Jameis Winston? Which team will take him on? There have been some rumblings about whether Winston has hurt his future professional prospects (but mostly from the perspective of endorsements, not whether he will have a job as a football player). But Winston will enter the draft after the close of what is turning into a highly controversial season for the NFL and after the NFL releases its report on violence against women (expected by the Super Bowl). The culture of privilege and the institutional ignorance about violence against women do not just emerge when athletes enter professional sports. They are cultivated in intercollegiate sports. Winston is just the current example; he is not the first, but how his story and future unfolds will be an indicator of how serious both college and professional football are about challenging their own damaging cultures. * These are the moments that further our cynicism about internal investigations.
On Friday, the U.S. Court of Appeals for the Ninth Circuit affirmed a district courts ruling after trial that the Sweetwater Union School District in California violated Title IX by providing inferior facilities and resources to girls athletics at Castle Park High School and committed retaliation when it fired a coach who advocated for equal treatment. First, the court affirmed the lower courts conclusion that Sweetwater failed to satisfy any aspect of the three-part test for equality in the number of athletic opportunities available to each sex. First, the disparity between the percentage of girls in the Castle Park student body and its percentage of female athletic opportunities was a minimum of 6.7 during the time frame at issue in the litigation. The court agreed that this could not amount to "substantial proportionality" because 6.7 percentage points translates to 47 more girls who would have had athletic opportunities if they were proportionally distributed, and 47 girls "can sustain at least one viable team." Second, the fact that Sweetwater increased the number of girls teams over the last ten years did not constitute a history and continuing practice of expanding opportunities for girls since the number of athletic opportunities actually decreased during that time (from 156 to 149). Third, the school district did not effectively satisfy the interests and abilities of female students, having eliminated a girls field hockey team twice within the time period at issue, and for reasons not related to a lack of interest in the sport. The court also rejected as both _false _and _irrelevant _the school districts argument that it should not be expected to sponsor a field hockey team because field hockey is not sanctioned by the state high school athletic association. The court also affirmed the lower courts ruling that the school district retaliated against the plaintiffs (a class of female student athletes) by firing the softball coach in order to keep him from advocating for equal treatment for his team. First the court agreed that the plaintiffs were challenging retaliation as it was directed to them, rather than asserting the rights of their coach, which would have raised concerns about standing. It then went on to affirm the lower courts conclusion that the school districts purported reasons for firing the coach were pretext for retaliation. The injunctive relief ordered by the lower court -- the requirement that the school district prepare a compliance plan -- should now go into effect. When we blogged about this case before, I mentioned that it was a historic case because it was the first time a high school had been brought to trial for violations of Title IX in its athletics program. There is comparatively little historical significance in the outcome on appeal, however, as any other result would have been difficult to imagine. Moreover, the Ninth Circuit decision adds to the overwhelmingly favorable appellate court win-rate for plaintiffs challenging sex discrimination in athletics. See, e.g. (95%). In fact, perhaps the most remarkable thing about this appeal was the school districts chutzpah in trying to justify the discrimination in this case, and its failure to back down either before or after trial.
As part of its larger effort to focus public attention and government resources at the problem of sexual assault on campus, the White House today unveiled a new public awareness campaign aimed at amplifying the message that sexual assault is not just a matter between the perpetrator and the victim, but "one in which the rest of us also have a role to play." The campaigns name "Its On Us" reflects what is at core a basic but fundamental idea that sexual assault is a community problem with a community solution. From the campaigns website, individuals can take a pledge, and then share And they can share the fact of their having pledged with their social networks via Facebook and Twitter. This is the pledge:
To recognize that non-consensual sex is sexual assault. To identify situations in which sexual assault may occur. To intervene in situations where consent has not or cannot be given. To create an environment in which sexual assault is unacceptable and survivors are supported.I recognize that is only small piece of a larger, more comprehensive governmental response, so its unfair to criticize this initiative for being simply an online pledge. Its fine to incorporate a pledge initiative as one aspect of a multi-pronged approach. Especially when combined with social media, a pledge has the power to, by going viral, help normalize intolerance for sexual assault. But I think as far as its content goes, the pledge has only modest value in its over-simplicity. The first sentence, for starters, is tautological. Sexual assault is defined as non-consensual sex and non-consensual sex is another word for sexual assault. The second sentence is uselessly vague, since sexual assault "may occur" in any situation where one person and another person are in each others company. I like the third and fourth sentence well enough for what they do say, but I think they miss an opportunity to dig at least a little deeper into the root cause of the problem. As far as Im concerned, sexual assault is a community problem worthy of a community-based solution (as opposed to a problem caused solely by individual offenders) because many more people than just rapists participate in the sexualization and objectification of women, which in turn creates a culture that gives offenders the perception of having permission to exert sexual power over women. This added layer of collective responsibility is lost in a message that makes it seem like its sufficient to pledge to be ready to stop your female friend from going upstairs with that guy, or to give her a shoulder to cry on after she is assaulted. Maybe we should pledge to avoid language of sexual dominance ("scoring" and whatnot). Maybe we could pledge to boycott products that use sexualized images of women (or men) in their advertising. Maybe we could pledge to criticize all social contexts (professional sports, online gaming, Reddit, etc) that purvey and condone womens (or anyones) sexual objectification. That might actually make more sense as a message that is taking as a starting point the idea that sexual assault is a community problem for which we are all responsible. Its well enough to pledge to "intervene" and "support" but I think its also necessary to encourage people to examine their own behaviors that contribute to the culture that has given rise to this problem.
As the school year gets underway in Texas, high school students there have the opportunity for the first time to compete in a statewide cheerleading competition sanctioned this summer by the states interscholastic athletic league (the UIL) on a one-year trial basis. The four-day competition will be based on "what cheerleaders do during a pep rally or on the sidelines, without the high-flying tosses and difficult gymnastics found in competitive cheer" -- according to the UILs executive director. The league was reportedly motivated to add the cheerleading competition in order to ensure that school districts cheerleading programs comply with its health and safety regulations. Ensuring the safety of cheerleading participants is an important objective, and I support the leagues decision to create a "Game Day Cheer" competition in Texas on these grounds. Separately, however, it is important that school districts who decide to participate in this competition do so because they wish to enhance extracurricular opportunities for the students involved, and not because it counts as a source of athletic activities under Title IX. While the Department of Educations Office for Civil Rights does presume that activities recognized by the institutions athletic association count as a source of athletic opportunities that should be counted under Title IX, this presumption can be rebutted by evidence that the activity in question is not similar in nature to the other athletic opportunities supported by the institution. The factors that are used as a the basis of this comparison include how the activity is administered (i.e., by the athletics department, like other sports), how the activity is structured in terms of having practice and competition schedule that is comparable to other sports, that opportunities to compete in a post-season tournament are, like in other sports, based on regular season results, and that selection for the activity is based on athletic ability. The application of these factors raises doubts about the ability of Texas competitive cheer to count as a source of Title IX opportunities. Moreover, the judge in the Quinnipiac case determined that the competitive cheer team at issue in that case did not count as a source of athletic opportunities under Title IX because too many of the teams competitions emphasized non-athletic factors such as spirit-raising. Given that Texass state championship deliberately emphasize spirit raising to the stated exclusion of athleticism, it would seem to be disqualified from the Title IX analysis for that reason as well. To be clear, I found no suggestion that the UIL is promoting competitive cheer as a means for its member school districts to comply with Title IX. However, I did note that just as the UIL endorsed competitive sideline cheer, it rejected proposals to sanction water polo and bowling, both of which could have served as sources of athletic opportunities for girls. I worry that this sends the wrong message to school districts that they can add competitive sideline cheer _instead of_ other girls sports, when for schools lacking in compliance with the three prong test, this is not legally the case. Any Texas school district that uses competitive cheer opportunities to suggest the appearance of gender balance in the distribution of athletic opportunities is taking a legally vulnerable position that would be hard to defend to OCR or to a federal court.
Emerson College in Boston has already found itself on the wrong side of Title IX compliance after being accused of mishandling sexual assault complaints. Some investigating by the campus paper has found that there was also a complaint against the school (and 99 other New England colleges and universities) alleging insufficient athletic opportunities for female students. The mass complaint format is not new. We have seen it in states including Washington, California, Idaho. All these were aimed at high schools. The commonality is that they have all been done by an entity calling itself The Old Guys for Title IX. Friend of the blog Herb Dempsey, who counts himself as a member of The Old Guys, spoke to the Emerson paper about the complaints--all of which have been dismissed. The Office of Civil Rights does not believe the complaints have sufficient evidence to prove denial of opportunities. And based on the comments of students at Emerson who were interviewed in the article, they dont feel wanting either. The numbers show the opportunities provided to female students are not proportional to their representation in the undergraduate population. The participation gap (based on 2013 numbers) is 16% or 39 opportunities. This does not mean Emerson is not in compliance, but we dont actually know that because, now that the complaint has been dismissed by OCR, they dont have to prove either prong two or three. As an Emerson alum (from the grad program admittedly), it didnt seem that athletics was an integral part of the Emerson experience. This, of course, does not mean that the female students are less interested than the male students who attend the liberal arts school. But Emerson should be required to ask, at least. If, as one student contends, students are more focused on the arts (and that is somehow more applicable to female students) and everyone is fine with what exists right now, it should not be too difficult for Emerson to assess that. With such a drastic participation gap, Emerson is setting itself up for future problems. Even if the complaint by The Guys was not successful, a future student complaint might be considered by OCR. And if Emerson has not chosen a prong and has data at the ready to prove it is indeed in compliance, it will be vulnerable. It continues to astound me that athletic departments are not crossing their ts and dotting their is when it comes to Title IX. It does not matter if the program is not "big time" or even if it is a smaller part of student life, it still has to comply with the law.
The Department of Educations Office for Civil Rights announced that it has concluded a Title IX compliance review at the Ohio State University that the agency commenced at its own initiative in 2010. OCR determined that OSUs written policies and procedures for responding to sexual harassment and sexual violence did not comply with Title IX requirements such as by failing to designate reasonable timeframes for the major stages of the disciplinary process, failing to extend the policies to harassment committed by third parties, and failing to define sexual harassment to take into consideration the subjective (as well as objective) perspective. In response to these and other findings, the agency negotiated a resolution agreement with the university that obligates OSU to make necessary revisions to come into compliance. In particular, OSU is obligated to: * Streamline and revise certain policies consistent with the law; * Review and confirm the proper handling of sexual harassment/violence complaints and reports since the 2011-12 academic year; * Expand sexual assault and harassment training programs to include all members of the university community – including students, faculty, administrators, and university police; and * Establish a campus focus group to provide input on strategies for ensuring that students understand their rights under Title IX, how to report possible violations, and Ohio State’s obligation to promptly and equitably respond to Title IX complaints. Now that the agency has concluded its compliance review at Ohio State, the university is no longer in the company of the eighty-some other colleges and universities with pending Title IX investigations. (By way of background regarding OCRs investigation methods, most of its investigations result from complaints that the agency receives, but a small percentage of are conducted proactively by the agencys own initiative -- with OSUs investigation falling into that latter category. Another example of a proactive compliance review was the SUNY-system review that concluded in a similar manner in 2013.) Another contextual point worth making is that the agencys review commenced long before the problems of sexual harassment and sexualized climate of Ohio States marching band came to light. Yet, OCR has taken the opportunity of its pending investigation to review and endorse the universitys response to that matter, which included terminating the band director and as well as implementing other structural changes to prevent similar problems going forward. In the press release announcing the resolution agreement, Catherine Lhamon, the Departments Assistant Secretary for Civil Rights "applauded" the university for setting "clear and vitally important expectations for a community-wide culture of prevention, support, and safety," and for serving as an example of "strong leadership.. to eradicate a culture of silence related to sexual harassment." As Ohio State endured criticism from the band directors supporters who believe his termination was an over-reaction, it no doubt appreciates the Departments inclusion of this public statement of support.
There have been a few stories over the past week or so about campus sexual assault that deserve a mention. One that has been making the rounds in the press and on social media is the story of a Columbia University student who is protesting the fact that her assailant is still on campus by carrying around a mattress wherever she goes. This story has been picked up by multiple outlets and is about a student who has been part of Columbias very vocal group of activists who have protested the way the university has handled reports of sexual assault. Emma Sulkowicz is the mattress-carrier. It is protest but it is also art. She is calling it Mattress Performance or Carry that Weight and it is her senior thesis. Read the piece on HuffPo for a description of the project and its meanings. We have seen some creative means of protest during this national movement, examples of students taking control when they feel their schools have failed them and making sure the issues remain in the public and community eye. Sulkowicz is also the student who, even though her rape occurred several years ago now, went to the police to file charges at the end of last semester feeling that she had to do something when the university did not. She will carry the mattress around, she said, until he leaves campus--either of his own accord or because of university action. University of North Carolina is facing lawsuits from victims of sexual assault. In one, a student is claiming the university mishandled her complaint. from the facts provided, it seems they didnt handle it all with the complaint being lost in one administrators inbox for weeks before he told the victim he was passing it on to another administrator who met with the victim and then passed it on to someone else who never got in touch with her. There was failure to follow through with the victim who was told things were a little confusing because the university was in the process of revising its policies. She left the school, but pursued the case and UNC eventually began an investigation which took far too long and was plagued by other issues. The reasons behind OCRs investigation of University of Kansas which was announced in the middle of the summer have been revealed. A student who was raped by someone who admitted not stopping sexual activity when the woman asked for him to do so filed a complaint about the universitys handling of her case. The woman, who went to a party with her assailant and who walked her home because she was intoxicated, actually went to the police first who spoke to the assailant who admitted his actions. Local officials have refused to pursue a criminal case despite the confession and have threatened the victim with charges of underage drinking if she pursued the case. She then went to university officials who did investigate the case but found not rape but "nonconsenual sex" had occurred. (This post on Feministing takes to task this and other euphemisms for rape.) The university banned the assailant from campus housing, had him write a reflective essay, and required he go to counseling. They considered required community service but felt it would be too much punishment. They told the student, who appealed the light punishment, that his sanctions were in accordance with university policy. Could be true, but that doesnt mean the policy--for which university administrators are responsible--is a good one. That is what OCR will assess. Light punishments are also at the center of two other complaints. A graduate of UC Santa Barbara filed a complaint in response to her rape. The university basically offered a pleas deal to her male assailant saying that he could agree to a two-term suspension or go through an investigation which could result in his expulsion. He chose the suspension, but was allowed to complete the term and his finals. And because the victim was graduating, he was actually allowed back to campus after only three months. A University of Toledo graduate filed a complaint after her assailant who admitted that he heard her say she didnt want to have sex received probation, a $25 fine, and mandatory sexual assault education totaling ten hours.
Weve been doing this blog for some years now and so we notice trends. For example, every spring there are a dozen stories or so about trans and gender non-conforming students being denied access to their proms, other school-sponsored events, and sometimes even a spot in their own yearbooks. This fall there is far more attention being paid to the lives of trans students on college campuses. (Some of this did start happening over the summer with the visibility of an Oregon college students efforts to get housed with other men and with the rise in religious colleges seeking Title IX exemptions from accommodating trans students.) But yesterdays announcement from the all-female Mt Holyoke College about their new admissions policy is just one story about trans college students. Mills College, another womens college, also announced changes to its admissions policy. The California school will now admit self-identified women. It will not admit FTM students who have legally changed their gender prior to application to the school, but will--like MHC--retain those students who transition while at Mills. The public announcement of these policies is something certainly to be lauded along with those of co-educational institutions that are making explicit the legal protections afforded to transgender students as well as resources for these students. The Transgender Law and Policy Institute has published this about the rights of trans students and responsibilities of schools as well as examples of what schools are and are not doing. I could not find a date on this piece, so I am not sure how accurate the numbers are regarding the availability of, for example, gender neutral bathrooms or how many schools allow students to change their given name for school transcripts without legal documentations, etc. But the guidelines are valuable regardless touching on many aspects of student life: housing, bathrooms, health care, locker rooms, documentation. The issue may come in how this and other information is disseminated. This piece from Buzzfeed speaks to the burden trans students face in explaining their lives, their identities, their names and pronouns, etc. to not just their peers, but their professors. One student called it "Trans 101." And if you have been paying attention to some of the media this past summer around Laverne Cox and Janet Mock, two high-profile transwomen and their treatment by talk show hosts, you know that cisgender people often feel it is permissible to ask very personal questions. Both Cox and Mock publicly expressed the problems with such questions, but trans students likely have to make decisions every day in one-on-one or small group settings about how much to reveal and how to explain that even asking some questions is inappropriate and why. This subjects them to any number of responses from peers and those above them (professors, administrators, staff). It is not unusual for those in the majority to expect the minority to educate them. Jean Baker Miller discusses this dynamic in her article "Domination and Subordination." In other words, policies are great, but they do not change culture all by themselves. Such work requires additional and consistent efforts by those in the majority and the minority.
As of today, Mount Holyoke College, a womens college in Massachusetts, now clarifies on its website that it will consider applications for admission from transgender students. Specifically, the website reports that the following students may apply: * Biologically born female; identifies as a woman * Biologically born female; identifies as a man * Biologically born female; identifies as other/they/ze * Biologically born female; does not identify as either woman or man * Biologically born male; identifies as woman * Biologically born male; identifies as other/they/ze and when “other/they” identity includes woman * Biologically born with both male and female anatomy (Intersex); identifies as a woman By including those who are "biologically born female" who identify as male, Mount Holyokes admissions policy is even more inclusive than that of Mills College, a womens college in California that earlier this month welcomed applications from transgender women, but not those "female-born students, who have undergone a legal change of gender to male prior to the point of application." In my view, Mount Holyokes broad view of those eligible for admission recognizes that both biological sex and gender identity are relevant for defining a community whose ostensible purpose is an antidote to male privilege. Transitioning to male does not erase the privilege deficit that may have accumulated for a student during the time she was legally female. (Ive blogged about this before.) The other thing that makes me happy about Mount Holyokes public endorsement of trans inclusion is that it suggests the college has finally dropped its mistaken belief that admitting transgender women would somehow cause the college to lose their federal funding under Title IX (an argument that is belied by the fact that Title IX does not even apply to the the admissions practices of private undergraduate institutions). It seemed to me that Mount Holyoke was the public voice of this argument and that it was impervious to attempts at correction. So Im not only glad to see Mount Holyoke adopt an inclusive admissions policy, Im also happy to see an end to its misplaced blame on Title IX.
AMENDED: 9/3 While the stories we have heard from college students across the country about sexual assault and sexually hostile climates on their campuses are shocking, these stories are not--unfortunately--limited to college environments. We have recently heard about a case in Seattle where a rape occurred during an overnight field trip. The girl reported the rape right away and went to the hospital where a rape kit was performed and an advocate confirmed that the victim did exhibit the signs of someone who had been sexually assaulted. Evidence, however, was not compelling enough to pursue a criminal case against the perpetrator who admitted that the girl had said no to anal penetration and that he had not thought much about her during the act. But despite the pleas of the parents of the victim--who was never able to return to school and was admitted to a facility for treatment for PTSD--the school did not investigate the incident. When the school did undertake an investigation--6 months later--they found that the girl was not subject to unwanted touching or sexual assault. The assailant was suspended for 10 days right after the assault out of fear for other students safety. Interestingly, it was not his first suspension for this type of infraction. He had been suspended in middle school for having sex with a girl. Other problems with the school response to the situation, outside the obvious lack of an immediate investigation and that the parents had to plead with the school to investigate, was that the parents inquiries to Seattles Title IX coordinator were never answered. The coordinator always referred the family to the districts lawyers. The family left the state and went into debt seeking treatment for their daughter. There has been a lot of discussion lately about penalties to schools that fail to create and comply with effective sexual assault policies and procedures. But these discussions have focused on colleges which also face damage to their reputations, something public high schools have less fear of. Colleges do, however, share a similarity with this--and other--cases of assault in high schools: the threat of revoked federal funding just is not effective. And while that is certainly true of this Seattle case, a lawsuit would seem to go pretty far and the family has been diligent about collecting and presenting a significant amount of evidence already. Sanctions from the government may not be as effective as we would like them to be at this moment, but lawsuits cause considerable distress. K-12 schools have been put on notice for issues of bullying--where there have been significant damage rewards to victims--sexual assault should not be any different. The parents have started an advocacy group, Stop Sexual Assault in High Schools, in an attempt to garner national awareness of this issue and be a resource for other families and victims. There is a demonstration Wednesday, September 3 at 4:15 in Seattle. The details can be found at the above linked Facebook page.
Last year we posted about a lawsuit filed in federal court in Tennessee, in which the plaintiffs -- three high-school aged sisters and their parents -- sued the Rutherford County Board of Education after being hazed in a sexual manner upon joining the girls basketball team at Siegel High School. The girls alleged that they were subjected to an initiation or hazing ritual that the court refers to as "cornholing" -- a practice "whereby a girl on the team would attempt to place her finger up the rectum of another girl by surprise." Moreover, the plaintiffs claimed that school officials tried to keep the issue quiet and did not meaningfully discipline the player involved because she was the coachs daughter, and that the coach of the team retaliated against the girls for reporting the incident by reducing their playing time and eventually suspending them from the team. At the time the lawsuit was filed, we noted that the school districts position on the matter was that the cornholing was not sexual in nature. Fortunately, a district court disagrees with the school districts absurd suggestion that nonconsensual anal penetration is not sexual in nature. In denying the school districts motion for summary judgment, the court agreed that a jury could find that the incident satisfied all of the elements for institutional liability for discrimination under Title IX. First, the court agreed with the plaintiffs that "inserting (or attempting to insert) a finger in another persons rectum or vagina reasonably could be construed as a sexual act that is a severe violation of an individuals body and personal privacy." The court next determined that the plaintiffs had introduced sufficient evidence for a jury to conclude that school officials had actual notice that the incidents had occurred, since the parents reported the them first to the basketball coach, then to the principal, and then to the Director of Schools. Finally, the court found ample evidence of the schools deliberate indifference, characterizing the schools response as "foot-dragging in violation of school policy, which endured for months and at multiple administrative levels." The court makes clear that the school was not on notice of the teams initiation practices prior to the plaintiffs reports, and thus cannot be liable for damages arising from the cornholing itself. However, its indifferent response (which included the assistant principle telling the girls to "keep the issue quiet" to avoid giving their high school "a bad name") to the matter once it had been reported subjects the school to potential liability for damages that the girls endured from that point on. To this end, the court noted that the sisters "faced the prospect of additional harassment or at least the indignity, intimidation, and justifiable discomfort of being forced to play alongside their alleged harasser and under the coach/father who seemed to be protecting her." Additionally, the court found sufficient evidence in support of the plaintiffs retaliation claim for that to proceed to trial as well. Unless the parties settle first, the case will proceed to trial, and a jury will determine whether the Board of Education is liable and for how much.
Doe v. Rutherford Cnty., Tenn., Bd. of Educ., 2014 WL 4080163 (M.D. Tenn. Aug. 18, 2014).
Not all of these cases are Title IX specific, but given the cover-ups and repeat offenses that happen when colleges look the other way (see the last incident below) or lightly punish student athletes who commit assault, I felt this update is relevant. The athletic and college administrators at the University of Oklahoma have announced the suspension of first-year Joe Mixon, a "highly-touted" recruit. Mixon was charged with a misdemeanor after punching a woman in a restaurant, breaking four bones in her face and leaving her unconscious. And OU has decided to suspend him for the season. He had been banned from team activities since right after the incident. In the wake of the wrist-slapping the NFL gives players who commit assault, it might seem that OU is taking a hard line in this case. But as Deadspin writer Diana Moskovitz notes, this is the same team advocating for the eligibility of Dorial Green-Beckham, former Missouri football player who was dismissed after breaking into his girlfriends apartment and assaulting someone at that residence. The girlfriend did not press charges because she feared backlash from the Missouri football community. (She must have learned well from FSU.) OU should tread cautiously given that elsewhere in Oklahoma there is a Title IX issue.... University of Tulsa is facing a Title IX lawsuit from a female student who alleges the university did not do enough in addressing the history of sexual assault allegations by basketball player, Patrick Swilling, Jr. The lawsuit states that the university knew of an incident at Swillings former school, the College of Southern Idaho and ESPN commentator said it is "shocking that the coach [at Southern Idaho] would pass the buck" on this. This is NOT AT ALL shocking. This underground passing of suspect student athletes happens all the time. What is more shocking--to me--is that the Southern Idaho admitted it handled things poorly. The former president said he felt the schools duty to investigate was mitigated by the fact that local law enforcement conducted an investigation. Back in Tulsa, though, Swilling was cleared by a university investigation into the sexual assault (there was also a prior sexual assault allegation to campus security by a student who has graduated and does not want to pursue the issue--which was not pursued by the university). This has seemingly cleared Swilling for athletic participation and he is in fact trying to get on the football team and the coach wants him. How this lawsuit (and an Outside the Lines investigation into sexual assault) affects his chances remains up in the air.
Last week a federal district court judge ruled in favor of the former college athletes, lead by Ed OBannon, who were challenging NCAA rules that prevented them from sharing in the proceeds that their colleges and universities earned by licensing their names and likenesses for commercial purposes like television broadcasts. The court agreed with the athletes that NCAA restrictions on athlete compensation are a form of price fixing that unreasonably restrains trade, and, as such, violate federal antitrust law. As a result of the courts decision, the NCAA must allow schools to use broadcast proceeds to provide stipends that compensate athletes for the true cost of attendance, which is often more than the cost of tuition, room and board, and books to which athletic scholarships are currently limited. And it must allow schools to hold some of the money they receive from television broadcasters for using players names and likenesses in a trust fund, to be shared among the players when they graduate. Though these changes will result in only modest compensation for former athletes -- the court specified that the NCAA could restrict payments from the trust fund to ensure that athletes only receive up to $5000 -- the case is still a very big deal. No longer can the NCAA invoke the concept of amateurism to justify whatever restrictions it would like to place on athlete compensation. Notably, the OBannon plaintiffs came from the sports of mens basketball and football, which are the sports that generate broadcast revenue. Accordingly, the decision only speaks to athletes in those sports. Yet, the decision is bound to have an indirect effect on womens sports, as a result of Title IX. As economist Andrew Schwarz explains, both in Jane McManuss column on espnW, as well as in his own Deadspin column yesterday, Title IX requires schools to allocate scholarship dollars in manner proportionate to the gender ratio of student athletes. A school that decides to offer male football recruits some additional compensation would have to ensure that a proportionate dollar amount is allocated to female athletes as well. Otherwise, they have a compliance problem. (Or more likely, a _worse _compliance problem, as many schools already do not provide enough scholarship dollars to female athletes.) As McManus points out at the end of her column, the effect of the OBannon decision on womens sports could be to inject a little more money into womens sports. But is that really a victory? To the extent the decisions legitimizes a version of college athletics that operates, as McManus says, "as platform for ticket sales, TV contracts and cash" rather than an "educational tool" is it really a victory for college athletes at all?