- Federal Court Enjoins North Carolina's HB 2 as applied to UNC
- Federal Court Enjoins Title IX Transgender Guidance
- Florida accuser tries new tactic
- Law Professors Publish Support for DCL's Preponderance Standard
- Another Religious Exemption Withdrawn
- Not IX but...
- Supreme Court Stays Ruling in Transgender Bathroom Case
- Lawsuit Filed in Green Wristband Case
- CA bill says no exemptions
- Second Circuit Reinstated Disciplined Student's Title IX Claim Against Columbia
- Does Michigan State's Women-Only Study Lounge Violate Title IX?
- Pepperdine Withdraws Title IX Exemption
- Trans issues round-up
- Minot State Ignored Sexual Assault By Professor, OCR Finds
- Government Sides With Plaintiff in Case that Tests Title IX's Application to Off-Campus Sexual Assault
- Settlement at Tennessee
- OCR Finds "Insufficient Evidence" of Most Title IX Violations Alleged Against Occidental College
- Roundup of Campus Sexual Assault Cases
- Sexual Assault by Student Is Not Automatically a Title IX Issue
- Teachers' Sexual Misconduct at Issue in Recent Cases
- New WSF Report Examines Gender Inequality in Coaching
- Transgender cases updates
- What happened at Baylor
- Some Thoughts on Friday's Dear Colleague Letter Re: Transgender Students
- Throwback Thursday: Cutting women's teams
Yesterday a federal court in North Carolina issued an injunction that will prevent the states "bathroom bill" from taking effect at the University of North Carolina. By way of background, earlier this year, North Carolina legislature passed HB 2, which preempts local ordinances banning discrimination on the basis of sexual orientation and gender identity, and also restricts occupancy of multi-user bathrooms that are located in state agencies and public schools according to the users "biological sex" as indicated by their birth certificate. Transgender plaintiffs challenged HB 2 as a violation of their constitutional rights, as well as a conflict with Title IX. As part of the lawsuit, which names the University of North Carolina as one of the defendants, they successfully sought to immediately enjoin the bathroom restriction at UNC so that they can continue to use the bathroom that matches their gender identity while the lawsuit proceeds. The standard for a preliminary injunction requires a plaintiff to demonstrate likely success on the merits as well as irreparable harm if the injunction is denied. Applying this standard, the court determined that the plaintiffs will likely succeed in their argument that UNCs enforcement of HB 2 violates Title IX. The court applied G.G. v. Gloucester School District, the Fourth Circuit decision that confirmed a transgender boys right under Title IX to use the boys bathroom. The federal courts in North Carolina are also in the Fourth Circuit, so the Gloucester case is binding precedent -- even though the remedy is temporarily on hold, for now, pending Supreme Court review. In contrast, the court determined that plaintiffs constitutional claims raised a novel application of the Equal Protection Clause, thus precluding the "clear showing" of likely success on the merits that is necessarily for a preliminary injunction. But the plaintiffs likely success under Title IX, combined with its conclusion that transgender students at UNC will suffer irreparable harm -- no place to use the bathroom -- satisfied the requirements for injunctive relief. As a result, North Carolina state law does not prohibit UNC from accommodating the transgender plaintiffs gender-consonant bathroom use. If UNC refused such accommodations, however, the federal government is presently enjoined from enforcing such an interpretation of Title IX as a result of last weekends decision from the federal court in Texas. I read these conflicting injunctions to effectively permit UNC to choose for itself -- for now -- whether to accommodate transgender students, without a threat of either state or federal penalties for either choice it might make.
This week, a federal court in Texas issued a preliminary injunction that bars the Department of Education from enforcing the interpretation of Title IX that is contained in its May 2016 guidance regarding transgender students. In that guidance, the DoE affirmed that discrimination on the basis of sex includes discrimination on the basis of gender identity and transgender status, and that as a result, institutions receiving federal funding must permit transgender students to access sex-specific facilities and programs that correspond to their gender identities rather than their birth-assigned sex. The state of Texas is the lead plaintiff in a lawsuit that is challenging the DoEs interpretation. Yesterday, the federal district court granted the plaintiffs motion for a preliminary injunction, which means that while litigation is pending, the Department cannot insist that school districts and universities refrain from discriminating against transgender students, or revoke the federal funding from those who do. The standard that the courts use to determine if a preliminary injunction is appropriate primarily considers whether the plaintiffs are likely to prevail on the merits, and that the balance of harm tips in their favor. In addition, the court had to address several threshold issues regarding the justiciability of the case including the standing of the plaintiffs and the ripeness of the claim. _SUBSTANTIVE INVALIDITY_. One key issue on which the court thinks the plaintiffs will likely prevail is their argument that existing regulation does not support the agencys position contained in the guidance. The court disagreed with the agencys position that the regulatory ban on "sex" discrimination, subject to exceptions for sex-segregated facilities like bathrooms and dormitories, includes discriminating against transgender individuals by denying them access to facilities that are consistent with their gender identities. According to the court, "[i]t cannot be disputed that the plain meaning of the term sex as used in § 106.33 when it was enacted by DoE following passage of Title IX meant the biological and anatomical differences between male and female students as determined at their birth." I think that even if conceded, that argument misses the point. It is possible to view transgender exclusion as sex-based treatment in the sense that a transgender individuals [anatomical, birth-assigned] sex is being viewed _in relation to their_ gender identity. Individuals whose sex and gender identities align can use the bathroom that matches their gender identity, while individuals whose sex do not align cannot the bathroom that matches their gender identity. Sex, even in its "plain meaning" attributed by the court, is still a factor being taken into account. An interpretation that this manner of discrimination is already prohibited by the regulations is therefore a permissible one for the agency to make. _PROCEDURAL INVALIDITY_. The court also concluded that the plaintiffs will likely prevail on its argument that the DoE should have used statutorily prescribed notice and comment procedures. When an agency promulgates a binding regulation, it must publish the rule in essentially draft form, get public input, and address the publics comments in the final version of the rule. However, when an agency issues sub-regulatory guidance that merely clarifies or interprets an existing regulation, it may legally bypass the notice-and-comment procedural requirements. The court disputed DoEs classification of the guidance as an interpretive rule, concluding that it "de facto regulation" that should have gone through notice and comment, a conclusion that turns on the courts sense that the guidance was meant to be binding and not discretionary. But a key characteristic of an interpretive rule is whether, without it, the agency would have the legal basis on which to bring an enforcement action to the same effect. Here, existing regulations prohibit treating individuals differently on the basis of sex, subject to the exception for sex-segregated facilities like bathrooms and dormitories. Even if the guidance had never been published, the DoE could have advanced this position in the context of an enforcement action. In fact, it did that very thing. I think the court missed an opportunity to discuss an important characteristic of an interpretive rule, the fact of an already-existing basis for enforcement. _RIPENESS_. One other thing that surprised me about the courts opinion was the standard that it used to determine that the case was ripe. Here, the plaintiffs are asking the court to throw out the Departments guidance before it has been enforced against any funding recipient. According to a Supreme Court decision called Abbott Labs, such pre-enforcement review is only appropriate when the questions raised by the case are fit for review and that withholding of review creates a hardship for the plaintiff. But notwithstanding this two-part test, the Texas court seems only concerned about fitness and not about hardship. In Abbott Labs, the drug manufacturer-plaintiffs challenging a USDA labeling requirement satisfied the hardship requirement because there were high costs associated both with compliance and with non-compliance. Are the schools in Texas and other plaintiff states in a similar double bind? The cost of compliance is just to let transgender kids use the bathroom that matches their gender identity. The percentage of students who are transgender is exceedingly small, maybe 1% or less. For schools that do have transgender students in their population, it is possible to comply with the guidance without incurring any cost at all, which could not be said for the drug manufacturers in Abbott Labs. Even the cost of non-compliance is distinguishable from that in Abbott Labs, where the Court was not only concerned with the possibility of incurring fines for mislabeled drugs, but also the particular cost to a drug manufacturers reputation that come from being subject to an enforcement action. This extra consideration should be necessary, since the penalties that result from the enforcement action itself are always ripe for review. And it doesnt seem to be present here. In light of the courts omission of a key component of the ripeness test, I am guessing this issue will be an important one on appeal.
The student conduct hearing process for Title IX cases at colleges and universities can be, among other things: fraught, painful, confusing, offensive, ineffective, and biased. At the University of Florida, one student accuser is attempting to address the latter: bias. She refused to take part in the conduct hearing for two football players she has accused of sexual assault and attempted sexual assault her because the man adjudicating the case is a football booster. The woman did not report the assault to university or local police, instead choosing to use the student judicial process. Florida appoints adjudicators for Title IX cases. John Clune, the Colorado-based attorney who has handled many Title IX sexual assault cases (he is Erica Kinsmans lawyer), is representing the woman. He made the statement on behalf of his client: "the fact that UF has hired a football booster to adjudicate a sexual assault charge against one of the team’s own football players is a fundamentally skewed process in which [the complainant] refuses to participate." Bias in the processes of both the schools judicial process and the legal system is rampant in Title IX cases. We saw it in Kinsmans case and it was a major theme in Jon Krakauers book about sexual assault at the University of Montana.
Read more here: http://www.miamiherald.com/sports/college/sec/university-of-florida/article94006377.html#storylink=cpyThe players were suspended from the team for violating the student code of conduct. They were barred from campus but remained enrolled and took online classes. One player is planning to transfer (apparently as part of a deal, which included an apology), the other is remaining at the school and fighting the accusations and, as of last week, was practicing with the team (though he has not been officially reinstated). It is unclear what will come of the boycott, but the action itself is important. It is an opportunity to really examine and potentially challenge the ways in which schools are adjudicating Title IX cases. It may also be an opportunity to assess the role and training of outside adjudicators. While the adjudicator in Kinsmans case against Jameis Winston, a former Supreme Court judge in Florida, was deemed acceptable by both sides, it was clear from the transcripts that he did know the student judicial process. A UF spokesperson said adjudicators are well-trained but apparently not vetted for bias the belief being that the training will somehow eliminate bias. Schools need to do better. This is not news. But it seems as if schools that want to demonstrate attempts to change the climate of the campus should at least start at the judicial hearing process.
Over ninety law professors* have signed on to a white paper that defends the Department of Educations 2011 Dear Colleague Letter and its clarification that universities must use the preponderance of evidence standard when deciding sexual assault cases. Under the preponderance standard, decisionmakers should find a respondent responsible for misconduct if the balance of evidence tips in that direction even slightly. The agency felt the need to clarify Title IXs requirement of a preponderance standard after it had adjudicated cases against institutions that been requiring "clear and convincing" evidence of the respondents guilt, a standard the tips the balance in favor of the accused, and the "beyond a reasonable doubt" standard, which tips it even more. As this article notes, the recent white paper stands in contrast to other position papers like that of FIRE and the AAUP, which have criticized the preponderance standard out of concern for the rights of accused students. The white papers authors argue that the preponderance standard is consistent with other applications of civil rights laws, and that there is no justification for a standard that would make it harder to address sexual harassment than other types of harassment and discrimination. Additionally, the white paper points out that the preponderance of evidence standard applies to lawsuits filed by students who have been disciplined for sexual assault. In a world where universities could use a higher standard such as clear and convincing to adjudicate sexual assault cases, but students who are disciplined could challenge the result based on the lower preponderance standard, there would be little incentive for universities to impose discipline on students accused of sexual assault. Moreover, the white paper authors point out, the more defendant-protective standards of evidence that apply in criminal proceedings are used as a check against government abuse of power. In contrast to government, which has the power to use criminal proceedings to potentially deprive citizens of their life, liberty, and property, a universitys power is limited to expelling a student from school. Attempts to analogize to the criminal standard improperly "conflate" university discipline and criminal justice system, which have very different objectives. *myself included -EB
Another university (see this earlier post) has formally distanced itself from an earlier request for a religious exemption under Title IX. The Chronicle of Higher Education reports that Loyola University of New Orleans has written to the Department of Education to ensure that the agency no longer considers it among the institutions that have historically or recently exercised their statutory right to opt out of Title IX provisions that conflict with religious tenets. In Loyolas exemption request, which it filed in 1986, the institution affirmed that regulatory obligations to include "termination of pregnancy or recovery therefrom" in its student health insurance plans conflicted with its Catholic tenets opposed to abortion. Today, however, the institution no longer offers a student health insurance plan, so the exemption is no longer necessary. As the Chronicles article points out, there was no legal reason for the institution to formally disclaim an exemption that only pertains to an obsolete program. Thus, the purpose of the letter seems to be entirely a matter of public relations. As religious institutions have lately rushed to claim exemptions that would permit them to discriminate against LGBT students, the list of religiously-exempt institutions has acquired a certain degree of notoriety. Loyola, like Pepperdine, looks to be going out of its way to distance itself from the other institutions on the list.
Two stories this week that were tangentially related to Title IX or have Title IX implications. First, the story everyone is talking about: Texas A&Ms Chalk Talk for Women. Lets leave aside for now how these football for women camps/events are becoming a money-maker for intercollegiate football programs and what they exploit. The gist: offensive slides describing football tactics using sexual innuendo and re-writing the school fight song Outside the Lines interviewed an attendee, a woman who is head of the Aggie Mothers Club. She defended the coaches and the event calling it satire and noting that no one she encountered during the event (there were 700 women registered) complained and that they enjoyed the presentations. She said she laughed it off and attributed it to the coachs sense of humor and time in the military. She did not feel it sent a negative message to people about anything because there was--in her opinion--no message being sent. She said the coaches were being attacked with negative messages. She is going back next year. Others have noted that at a time when football programs especially are trying to teach young men to respect women, this was hugely inappropriate and a step backwards. It is inappropriate at any time, of course. But there factors that speak to the culture of the A&M program that could, if a Title IX issue arises, come to the forefront. First, one of the coaches who made the presentation and was subsequently suspended without pay for two weeks was a former coach for the Miami Dolphins. An offensive line coach who was fired in the wake of the Jonathan Martin/Richie Incognito bullying scandal. This is an example of toxic masculinity and misogyny and how it travels from one institution to another. [Side note: Jessica Luthers book about sexual violence and intercollegiate football is coming out soon and I am very interested in reading it. Here is an interview with Luther.] Second, the Aggie female fan who found nothing wrong with the talk also is indicative of the culture of A&M football. It is possible that there was no visible reaction because 1) women did not feel comfortable speaking out or even walking out in that space which was marked by fervent fandom and sexism and.or 2) female fans expect and accept that behavior as the price of fandom. One must accept the culture as it is--just as that fan in attendance accepted the coachs sense of humor and attributed his demeanor to his military service. This is especially troubling because when something happens and female student comes forward and says she was sexually assaulted by a player, those fans will turn on her. We have seen it everywhere. These victims get run out of town--almost literally--because of the backlash. The culture of football includes the culture of fandom and if programs are running events for fans that makes them responsible for this as well. On a sightly more positive note, the two-week, no-pay suspension of the two coaches who ran the chalk talk, the condemnation of the head coach (who issued the suspension) and the school president is at least a demonstration that the program is not being indifferent to the issue. (I have a post planned about how Baylor keeps resisting this.) The second story, which has received far less attention, is about racial discrimination in womens sports. Three Black female basketball players from Cottey College in Missouri are suing the school saying they were treated differently from white players. They spoke of segregated practices, less playing time, and eventually expulsion from the team for what the school is calling behavior problems. Again, not Title IX, but a reminder that discrimination is intersectional and that Title IX does not address the issues that women of color face in sports. This story reminded me of Jennifer Harriss case against Penn State and Rene Portland as well as the one from earlier this spring from Iowa State. Head coach Bill Fennelly (along with the school) is facing charges from a former player that he discriminated against her because of her race. Nikki Moody said that the coach called her a thug and created a hostile environment. In sum, sexism is not the only type of discrimination female athletes face and racism happens regardless of how many people of color are on a team.
The Supreme Court has temporarily stayed a court order that would have permitted a transgender male high school student to use the boys bathroom, consistent with his gender identity. As a result of this action, the order, which issued as result of the Fourth Circuit Court of Appeals recent decision that the students rights were protected under Title IX, will not take effect until the Supreme Court decides if it will add the case to the docket for its upcoming term. Reportedly, the Court will likely make this decision in October or November, which means the student in question will have to start the school year excluded from the boys bathroom, despite the fact that he identifies as male.
Kris blogged earlier about Tremper High School in Kenosha, Wisconsin, which is requiring transgender students to wear bright green wristbands as a way to enforce their exclusion from the bathroom consistent with their gender identity. As Kris noted, a Title IX lawsuit has been filed on behalf of a transgender student who is being targeted by the green wristband rule. Based on the now-public complaint, this post provides some additional detail about the lawsuit. The plaintiff, identified in the complaint by his initials, A.W., alleges that he was informed of the new green wristband policy at the end of last school year, and expects that he will be required to wear the wristband when school starts again in the fall. The policy apparently came about after A.W. repeatedly used the boys bathroom in defiance of school officials insistence that he use the girls room or an out-of-the-way single-use stall. A.W. also alleges that the school denied his male identity by referring to him by his (female) birth name, by refusing to change his name and gender on school records, despite having produced the required doctors verification of his transgender status. by assigning him to room with girls instead of boys on a school trip, and by initially refusing to let him run for prom king. (School officials eventually let A.W. onto the prom king ballot following a petition and sit-in protest attended by 70 students.) The lawsuit declares that this conduct by school officials violates Title IX as well as the U.S. Constitutions Equal Protection Clause. It notes that the Department of Education has clearly stated that Title IX requires schools to treat transgender students in a manner consistent with their gender identities, including in the context of bathrooms. It seeks a court order prohibiting the school from excluding him from the boys bathroom and from otherwise treating him differently from other male-identified students. Transgender students have won other cases asserting their right to gender-consonant bathroom use. Though not binding on the federal courts in Wisconsin, the Fourth Circuit Court of Appeals determined that courts should defer to the Department of Educations position under Title IX. A transgender girl in Maine also won her case seeking access to the girls restrooms at school, though her case was litigated under Maine state law rather than Title IX.
Just a couple of weeks after Pepperdine University told OCR that it no longer needed its exemption from Title IX, a proposed bill in the California legislature would prevent discrimination against LGBT students (which is what those of us who critique the exemptions argue is happening). To be considered tomorrow (Wednesday), the bill states that any religiously affiliated school that receives money from the state of California may not discriminate against LGBT individuals. The biggest area affected by this would likely be financial aid in the form of California state scholarships. Though I imagine state bonds for facilities and other such state-assisted projects and research would also put those schools on the hook for compliance--or rather non-discrimination. In short, no exemptions for religious schools in California if the bill passes. The usual sides emerged when the bill was proposed: religious freedom versus anti-discrimination for LGBT people. If this bill does get passed, there is a potentially interesting conversation about whether Title IX exemptions on religious grounds should have to meet a higher standard.
A student who was disciplined for sexual assault may continue to litigate his claim that Columbia University discriminated against him on the basis of sex, the Second Circuit Court of Appeals ruled on Friday. The appellate court overturned a lower court decision that had granted Columbias motion to dismiss the Title IX claim on the grounds that it failed to sufficiently allege that sex discrimination motivated the alleged procedural and substantive errors that lead to his suspension.
The appellate court, however, determined that the plaintiffs complaint met the legal standard for alleging a violation of Title IX and should not have been dismissed so early in the litigation. The ruling reinstates the plaintiffs case and allows it to proceed to the discovery stage, during which both sides will acquire evidence that they intend to use at trial. At the end of discovery, Columbia may again try to get the case dismissed in advance of trial (summary judgment). Then the questions will turn to the sufficiency of plaintiffs evidence, but here, early in the litigation timeline, the only thing in question is the sufficiency of the allegations in his complaint.
The Second Circuit was influenced in its decision by the 1973 Supreme Court decision McDonnell Douglas v. Green, which allows discrimination plaintiffs with minimal, circumstantial evidence to benefit from a temporary presumption of the defendants discriminatory motive. Additionally, the court referenced the Courts more recent, 2009 decision, Ashcroft v. Iqbal, which held that a complaint must plead specific facts sufficient to support a plausible inference that the defendant is liable for the alleged misconduct. Read together, according to the Second Circuit, the two cases permit a plaintiff to survive a motion to dismiss where the complaint _specifically_ alleged facts that support a "_minimal plausible inference_" of discriminatory intent. Here, the court determined, the plaintiffs complaint met that burden. Even if it is not probable, it is plausible to infer, as plaintiff alleged, that Columbia was biased against men in the wake of negative publicity over its mishandling of female students earlier complaints of sexual assault. Moreover, the complaints allegations of procedural errors that occurred during the disciplinary process and the absence of evidence to support the finding against are allegations of the type of minimal, circumstantial evidence that plaintiffs should benefit from under McDonnell Douglas.
This pro-plaintiff decision is binding in the Second Circuit, which includes New York, Connecticut, and Vermont. In these states, its likely to interrupt the trend in favor of universities winning their motions to dismiss, as disciplined students should now have an easier time advancing to the discovery phase of litigation. Though such victories are only preliminary in nature (since the university can again to dismiss the case after discovery, and still could win at trial), they may affect universities incentives to settle rather than go through the cost and hassle of continued litigation. Outside the Second Circuit, the trend in favor of universities winning motions to dismiss may continue unaffected, as courts there court continue to take a stricter view of Iqbal. However, it is also possible that other courts will find the Second Circuits reasoning persuasive and adopt it as their own. After all, that is what happened with Yusuf v. Vassar -- the 1994 Second Circuit decision that laid out the framework for "erroneous outcome" and "selective enforcement" disciplined student cases, and which has been cited in every Title IX disciplined student case of late.
The Washington Post reported this week on the controversial decision by Michigan State University to lift the women-only designation that had formerly applied to a study lounge in the student union. Though the timing coincides with public critique of the lounge by a professor from the University of Michigan, MSU contends that it had already decided to remove the women-only designation as a means to comply with Title IX. Female and male MSU students alike have reportedly responded to the decision by petitioning the university to reinstate the women-only space. Putting aside the question of whether a women only lounge is a helpful and/or necessary, I have to say that I agree with MSUs assessment that a study lounge designated for women only is a violation of Title IX. I furthermore disagree with the universitys apparent belief that adding a comparable lounge for men -- an idea that MSU rejected -- would have cured the legal problem. Title IX by its terms bans sex discrimination in federally funded institutions. Technically, the only time it is permissible to treat students differently on the basis of sex is when there is an exception written in to the statute or into the regulations. . In terms of facilities, these areas include housing, toilets, bathrooms and housing facilities, where "separate but equal" treatment is permissible (34 C.F.R. 106.32 & 106.33). In terms of programs, it is permissible for colleges and universities to separate men and women in athletics, some physical education classes that involve contact sports, and choruses. _Id_. at 106.34. Admissions of private undergrad institutions is not covered by Title IX which is how womens colleges can legally exist. But this exemption does not pertain to public schools like Michigan State, and even if it did, it does not give rise to a right to impose differential treatment on male and female students once they are admitted. _Id_. at 106.15. Elementary and secondary schools have a little more leeway to offer single-sex education in some circumstances, but this is not replicated for higher education outside the context of admissions. _Id_. at 106.34. Finally, there is a provision that allows a university to administer scholarships and awards that are designated for only one sex, so long as it "otherwise makes available reasonable opportunities for similar [opportunities] for members of the other sex." _Id_. at 106.37. And thats it. Those are the exceptions to the default rule of equal treatment. So in the absence of a provision governing womens-only or gender-segregated study lounges, they are technically not allowed. That said, students are justified in insisting on space to study that is free from interruption by other students who want to ask them out -- what appears to be the chief concern of petitioning students at MSU. One way to accomplish this would be for MSU to designate the lounge as a "quiet" lounge and prohibit all people from interrupting studiers, whether to ask them out or for other reasons that would presumably be equally intrusive. Or MSU could permit students to sign out the lounge (or parts of it) for use by study groups, which would permit a self-assembled group of female students to use the lounge at their designated time. A study lounge within a womens dormitory or on an all-womens floor would also be OK under the exception for housing. Finally, Id argue that it would also be permissible to designate space for a gender-focused student group, such as the Society of Women Engineers. Though men could not legally be excluded from the lounge if they really wanted to make a big deal about it, a sign on the door declaring the space to be "SWE headquarters" would probably work to divert most male engineers to another lounge as a matter of respect and/or disinterest.
Huffington Post was the first to report this week on Pepperdine Universitys written withdrawal of an earlier, 1976 request for a religious exemption under Title IX. Specifically, the exemption allowed Pepperdine to discriminate against female students by excluding them from opportunities to preach in chapel and otherwise withhold support for their efforts to become ministers. It also permitted Pepperdine to punish students for engaging in "heterosexual relations outside of holy wedlock or in homosexual relations." Earlier this year, however, Pepperdines president wrote to the Department of Education withdrawing the earlier-requested exemption, noting that the university is "committed to complying with Title IX" and that it wanted this to be reflected in any public lists or databases of Title IX-exempt institutions. When the letter came to light this week, the university supplemented it with a statement explaining that the earlier exemption " does not fully reflect Pepperdine’s values today" and affirming that "Pepperdine’s mission and the goals of Title IX are aligned." Pepperdines move is an understandable public relations move. As the government provides more transparency on religious exemptions from Title IX, it is reasonable to predict that exempt institutions will increasingly contend with negative publicity. Pepperdines express rejection of its own earlier exemption appears to suggest that the university is making that same calculation. Interestingly, Pepperdine is in the midst of a lawsuit in which two former female students alleged that they were harassed and penalized because of their relationship with each other. Pepperdine could have doubled down on its exemption and become the first institution to test whether the exemption works as a defense in third-party litigation (as opposed to applying only to government enforcement). But such a tactic would have cemented Pepperdines reputation as an exempt institution and underscored our worse fears that the exemptions provide a license to discriminate. So rather than use the exemption as a shield, Pepperdine has put it away so that it would not become a sword in which it might impale itself.
In an act that I would find singularly outrageous if it were not in the current climate of fear--of everything and everyone--we see just how vulnerable some people are and how much we need the current interpretation of Title IX that includes transgender students. In Wisconsin a trans high school student was told he could not use the boys bathroom. He was offered the girls bathroom or the office restroom. Neither option is acceptable but for a year, Ash Whitaker just did not use the bathroom at school, which had negative physical (and I would imagine emotional) health consequences. So he just started using the boys bathroom seemingly without issue (and support from peers and some teachers) until the school instituted its wristband program. It would force students like Ash to use bathrooms based on sex on birth certificate. A green wristband would indicate that wearers are trans. The district and school wants to be able to monitor trans students and their bathroom use. The wristband reveals their trans identity to everyone. A green wristband to identify trans students. The comparison is obvious and even if this is not a nationwide trend, it is deeply troubling. Whitaker and his mother have filed a Title IX lawsuit against the district. Also, this case serves as an example of the power of visibility. The Whitaker family was inspired to take action (there were other issues in addition to bathrooms) when they read about Gavin Grimms case in Virginia. Better news in South Carolina where a trans student, after OCR found her school district in violation of Title IX, is being allowed to use the girls room in accordance to her gender of identity. The district engaged in a voluntary resolution of the complaint. It is hard to take up the fight against discriminatory practices because often they lead to additional discrimination and backlash. It is more difficult in some areas and states than others. We live in Massachusetts where last week the legislature passed anti-discrimination legislation allowing trans people to use public restrooms and locker rooms in accordance with their gender identity. Yay Massachusetts! This does not mean, of course, that discrimination will cease. But an anti-discrimination measure has the backing of the state and that is hopeful. It goes into effect this fall. Not Title IX related and not trans related (though potential implications) but too important to go without mention: Caster Semenya, who was subject to a disgraceful and malicious inspection of her gender in 2009 and then cleared to compete the following year, is competing in Rio this summer and is a favorite to win the 800 and also is a contender in the 400. But her participation is not without controversy, sadly. Again, despite being given the OK to compete in the field she has always competed in 6 years ago, some people are still worried about things being fair. Marathoner Paula Radcliffe--who does not compete against Semenya--is suspect of Semenyas participation and believes it is not sport when it is presumed that Semenya will win the gold. I guess gymnastics is going to suffer then given that Simone Biles is the presumptive all-around winner next month. Also Semenya, who won silver in 2012, is benefiting from the banning of the Russian team from track and field. Gold went to a Russian in London. Her other fear is that so-called normal women will be pushed out of the sport when people to go areas of the world with higher occurrences of hyperandrogenism, which is the condition Semenya is believed to have. (In a rare moment of actually protecting her privacy, the results of her tests were not released.) One, athletes are recruited for specific physical traits all the time. Two, high testosterone levels are no guarantee of a specific performance outcome given that testosterone receptors are all over the body and perform different functions. Three, I could find distribution rates of intersex conditions. (They could exist, of course.)
The Department of Educations Office for Civil Rights announced yesterday that it has reached a resolution agreement with Minot State University in North Dakota after finding that the institution violated Title IX in its response to reports of sexual assault. In particular, the university did not investigate or address a complaint made by a former student that she had been sexually assaulted by a professor for over two years. In addition, OCRs investigation found that overall only one of four complaints of sexual harassment reported to campus security officers actually led to a campus Title IX investigation. My impression is that Minot States violations of Title IX are among the most egregious findings that OCR has made in recent years. As opposed to procedural and policy violations of Title IX that have been found in other cases (e.g., here, here, and here), here the university outright ignored an egregious complaint. It is easy to imagine the injury this caused to to the reporting former student, as well as the significant risk to other students that the university created when it decided not to act. In combination with the pattern of under-investigating complaints made to campus security, it is clear that the universitys policies and practices contributed to students risk of sexual assault. Under the resolution agreement with OCR, the university is obligated to provide counseling and other support that would address any emotional, psychological, academic, or employment issues" faced by the complaining student as a result of the university’s delay in processing her complaint. Additionally, the university must develop a procedure to document sexual assault and harassment complaints it receives, strengthen coordination between the campus police and Title IX coordinator, enhance its grievance procedures, and submit to ongoing monitoring by the OCR.
Recently, the federal government sided with two Title IX plaintiffs in ongoing litigation against Kansas State University that challenges the institutions failure to respond to reports of sexual assault committed at off-campus fraternity houses. The federal courts eventual decision in two pending cases will address an important issues of Title IXs scope. So it is noteworthy that the Department of Justice and the Department of Education submitted amicus briefs to challenge the universitys contention that its obligations under Title IX do not apply to off-campus conduct. The government argues that when Title IX uses the word "programs" in describing the statutes reach, it includes the house and events of a school-recognized fraternity, just like it applies to other off-campus activities like study-abroad programs and extracurricular activities that are still subject to the universitys control. Moreover, the government argues that the university itself claims that its fraternities are part of the university in its marketing to prospective students, and exerts the requisite "substantial control" to prevent and respond to sexual assault that occurs at fraternities, in that the accused are students who are subject to the university disciplinary process and the fraternity itself relies on the university for ongoing recognition. In fact, the university demonstrates this control by sanctioning the accused student for alcohol violations, but not rape. Clearly the government is watching this case closely, as we are as well.
News broke this morning that there will be no trial (originally scheduled for spring 2018) in the Title IX lawsuit against the University of Tennessee. UT will pay just under $2.5 million to the eight women who brought the lawsuit. As is the case in most settlements, the university admits no wrongdoing. Money for the settlement will be drawn from both central administration and athletics. Stories suggest that no taxpayer money will be used, but at a state university I wonder how easy it is to keep it all separated. From the plantiffs lawyer: We are satisfied that, while universities everywhere struggle with these issues, the University of Tennessee has made significant progress in the way they educate and respond to sexual assault cases. My clients and I are also convinced that the Universitys leadership is truly committed to continue its exemplary efforts to create a model as it relates to sexual misconduct. From UT Chancellor Jimmy Cheek: Like many institutions, we are not perfect, but our goal is to continue to be the best we can be at creating awareness, educating and preventing discrimination and abuse in any form and to continue to be equally prepared when it does happen and to deal with it promptly, sensitively, fairly and effectively. Weve come a long way in recent years, and we are working every day to be even better. No one listed the measures UT has taken to ensure that Title IX is being correctly and effectively implemented. ESPN has a list of the specific incidents here. But as a reminder, these date back to the mid-90s and involved UT athletes who were either not investigated or not punished for sexual assault. As a wrap-up, I want to note the trends or similarities that these charges have with other cases we have covered. 1. Athletes have special protections. These manifested in the following ways in this case: not being investigated; found guilty but not punished or lightly punished; other entities intimidating victims discouraging them from filing complaints or charges (in this case it was teammates of perpetrators). 2. Passing the buck: In at least one case at UT, an offending athlete was found guilty, allowed to finish out his season and then transfer. Remember, the SEC passed a rule that prevents member schools from accepting transfer athletes who have histories of sexual assault. Apparently, they have no issue sending those students to non-SEC schools. 3. Female athletes as victims. Because tracking the intricacies of sexual assault is difficult--at best, we dont know how many perpetrators are athletes nor do we know are many victims are athletes and at what level they play. But UT is not the first time we have heard about male athletes at DI institutions assaulting female athletes with few repercussions (Missouri, Iowa, New Mexico). Keeping things in the "family" (i.e., athletics department) clearly has serious negative consequences. Female athletes are pressured not to report assaults; they are told things will be handled internally. In this case, that pressure was also exerted on a male athlete who attempted to come to the defense of one of the victims and was assaulted and called a traitor by Coach Butch Jones (Jones denies this.).
The Department of Educations Office for Civil Rights announced yesterday that it had entered into voluntary resolution with Occidental College in Los Angeles, closing the agencys investigation into the high-profile complaint alleging that the college had violated Title IX in its handling of sexual assault. For the most part, the agency found "insufficient evidence" that Occidentals procedures and practices deviated from the requirements in the Dear Colleague Letter. In particular, the specific allegations against Occidental that were raised by complainants were all rejected. For example, the agency rejected the charge that Occidental fails to take interim measures to protect complainants while the grievance process is ongoing; the college issues stay-away letters and interim suspensions from college activities, removed respondents from shared living spaces, and also made support and academic services available to complainants. The agency also found insufficient evidence to support the charge that Occidental did not adequately punish those found responsible for sexual misconduct by providing respondents with the opportunity to complete educational assignments as part of a sanction (in lieu of expulsion). OCR determined that these sanctions were reasonable under the circumstances and that they were completed by the respondents who received them. The agency also determined that respondents who faced multiple, separate charges of sexual assault were appropriately sanctioned, by expulsion in some cases, or with circumstance-appropriate alternatives. As a final example, complainants alleged that Occidental officials discouraged students from filing formal complaints, but OCR investigators could not substantiate this claim. OCRs investigation did find that in the 2012-13 school year, Occidental failed to promptly handle a three sexual assault complaints without an adequate justification. The delays in these cases were caused by staffing vacancies and hearing officers who were unavailable. Since that time, however, Occidental has revised its policy to eliminate the hearing panel, created a new process to determine responsibility and sanctions, and has hired Deputy Coordinators. To ensure that these changes address the matter of timeliness going forward, the college and OCR have entered into a resolution agreement that OCR will monitor. The complaint against Occidental was one of the early in the wave of post-Dear Colleague Letter complaints. It received national attention, in part, because the college
was found to have concealed sexual assault statistics in violation of the Clery Act.[*] In that context, it did not seem unlikely that a college that would suppress evidence of campus rape would also seek to discourage students from filing formal complaints and otherwise minimizing the consequences for those accused and found responsible of sexual assault. The findings that emerge from OCRs investigation, however, tell a different story.
*Update: Since writing this post initially, I learned that the report of these violations was later retracted. Occidental College is being investigated but has not been found responsible for violations of Clery Act.
Here is a summary of recent judicial decisions in cases alleging institutional liability for sexual assault under Title IX. A student at the University of California at Santa Barbara was drugged at an off-campus party and then raped by a fellow student. Three months later, she withdrew from school after being put on academic probation. She sued the institution under Title IX, first challenging its failure to conduct an investigation or disciplinary proceedings and for making statements capable of dissuading her from seeking such recourse. For example, one campus official told that plaintiff that university investigation might interfere with an ongoing criminal one. Confusingly, the court concluded that the universitys "delay" does not constitute deliberate indifference giving rise to Title IX liability. Calling it a delay suggests that the university eventually got around to conducting an investigation though it did not. Nevertheless the court interpreted the universitys conduct to be possibly negligent, but not clearly unreasonable if it really thought that conducting it own investigation would hamper law enforcement. The court also rejected the plaintiffs argument that the universitys failure to provide her with any housing or academic accommodations was deliberate indifference. The plaintiff argued that, ""[t]he mere presence on campus, without any restrictions, of the student that sexually assaulted [her]” placed her in a sexually hostile environment" and did not try to help her reduce her courseload so that she could stay academic standing. But the plaintiffs claims fail because did specifically ask for accommodations. Therefore, the universitys failure to offer them, while possibly negligent, was not "deliberately indifferent." This decision seems to me to set the bar for deliberate indifference unduly high. The university is alleged to have done literally nothing in response to the plaintiffs report of sexual assault. Doing nothing ought to at least create the possibility of a deliberate indifference finding by a jury. Additionally, this case starkly illustrates the difference between judicial and administrative standards for Title IX liability. So much of what the plaintiff alleges directly contravenes the Department of Educations requirements in the Dear Colleague Letter. But as the court itself (correctly) reminds, violations of Title IX regulations do not necessarily give rise to liability for damages because the standards courts used for that purpose is a much stricter, deliberate indifference standard. Moore v. Regents of the Univ. of California, 2016 WL 2961984 (N.D. Cal. May 23, 2016)
The University of Tennessee is being sued by a group of plaintiffs who allege that while they were students, they were sexually assaulted by male student athletes on the basketball and football teams. They claim that the university is liable for the sexual assaults that athletes committed against them because the universitys indifference to a known pattern of sexual misconduct by athletes put them at risk of being assaulted as well. Additionally, they claim that the university is liable under Title IX for mishandling their own reports of sexual assault, and one plaintiff alleges that she was retaliated against for participating in the investigation of one of the other plaintiffs assaults. Last month, the federal court in Tennessee substantially denied the universitys motion to dismiss these claims. The court was not persuaded by the universitys argument that the plaintiffs did not allege that the university had actual notice of past sexual misconduct by their assailants in particular. Here the university is not alleged to have ignored a general risk that some students will harass some students, which would not, of course, be actionable. Instead, the complaint alleges that the university was "put on notice of a specific and concrete pattern of an inordinate number of sexual assault allegations against members of specific teams within the UT Athletic Department and also allege that such a pattern may be directly related to the culture within the Athletic Department." This is an adequate allegation of notice and deliberate indifference, according to the court. In fact, it goes beyond "indifference" and alleges that the universitys own actions in facilitating a culture of sexual assault are to blame for their assaults, which is a basis for potential liability in itself. Doe v. University of Tennessee, 2016 WL 2595795 (M.D. Tenn. May 3, 2016).
In 1999, the plaintiff was a freshman at Oregon State when she was drugged and raped at a party in an off-campus apartment that was connected to members of the football team. The plaintiff later learned that her assailant was not a student, but the cousin of a football player named Calvin Carlyle, who was visiting from out of town. Fifteen years later, the plaintiff discovered that Carlyle himself had raped another female student in the same apartment one year prior to her own rape, and that he had merely been suspended from one game as a result. The plaintiff then sued Oregon State, alleging that the university was liable for her rape committed by the cousin because it had been deliberate indifferent to the first rape committed by Carlyle. The court dismissed this claim, however, noting that the plaintiffs assailant (the cousin) was not a student and that the assault did not take place on campus. Given both of those factors, the university did not have power over the situation and cannot therefore be liable. The plaintiff also alleged that the university was deliberately indifferent to her own reported rape, but this claim was barred by the statute of limitations, which in Oregon is two years. Samuelson v. Oregon State University, 2016 WL 727162 (D. Or. Feb. 22, 2016).
As the public continues to decry the six-month sentence for convicted rapist Brock Turner, I get the sense that many are wondering about possible Title IX implications for this case. From what Ive read, there are none. The university has pointed out in a public statement that it conducted a prompt investigation that resulted in Turners being banned from campus, "the harshest sanction that a university can impose on a student." The university also noted that it provided counseling services to the victim, who was not a Stanford student, once it learned her identity.
I dont take a position on whether students have appropriately criticized Stanfords statement as cold and unsympathetic, or whether the university should extend an apology to the victim and increase resources for sexual assault prevention. All I suggest here is that, if what Stanford says is true, there is nothing in the public record to suggest that more is required of the university under Title IX. Universities are not vicariously liable for the misconduct of their students. In the case of sexual violence and sexual harassment, they required to engage in a prompt and equitable response when it learns that such misconduct has occurred, and that appears to be what Stanford has done in this case.
In the last month or so federal courts have made decisions in several cases in which sexual misconduct by teacher and coaches have given rise to Title IX litigation. Here is a summary. A federal court in Pennsylvania refused to dismiss Title IX claims stemming from a music teachers ongoing sexual assault of a student that began when she was in middle school and extended into high school. The male teacher had intercourse and engaged in other acts of sexual assault with the female student on multiple occasions and the student had gotten pregnant as a result. Twice the student reported the teachers misconduct to another teacher. School officials claimed they did not ever hear about the first report, but they did get the second. Rather than investigating, however, they allegedly pressured the victim to rescind her claims against the music teacher. (Eventually the teacher plead guilty in a criminal proceeding.) Especially when factoring in earlier complaints that this same teacher had harassed other female students, the court agreed that she had satisfactorily alleged notice and deliberate indifference, the key elements for institutional liability under Title IX. K.E. v. Dover Area Sch. Dist., 2016 WL 2897614 (M.D. Pa. May 18, 2016). Also in Pennsylvania, a school district prevailed at summary judgment on claims that it violated Title IX by failing to protect a student from sexual abuse by her coach. In this case, school officials found out about the ongoing misconduct when the coach was arrested by police. There was no evidence suggesting that they knew about what was happening and failed to intervene. The coach had been dismissed from another school for sexual misconduct, but on inquiry from the defendants athletic director, the coachs prior employer said that his dismissal was due to "excessive texting" of a student, which did not put the defendant on actual notice that the coach posed an imminent sexual threat to his players. Nace v. Pennridge Sch. Dist., 2016 WL 2609789 (E.D. Pa. May 6, 2016). A female student on the predominantly-male wrestling team sued her Pennsylvania school district for failing to respond to her allegations of sexual harassment by the coach. The court disagreed with the plaintiffs characterization of the coachs behavior as sexual harassment and dismissed the claim. Specifically, the court acknowledged that the coach was "vulgar and inappropriate" -- he told the plaintiff and another female wrestler that they had to "be the boy" and ought to wear strap-ons. He teased other male wrestlers on the team that the plaintiff is the only girl he would ever touch or have on top of him. But, the court determined, this harassment was not sufficiently pervasive because the plaintiff alleged only about 10 sexually-tinged comments over 2-3 years. Also, because the coach acted this way towards all the wrestlers on the team, he was not singling out the plaintiff because of sex. Moeck v. Pleasant Valley Sch. Dist., 2016 WL 1553440 (M.D. Pa. Apr. 15, 2016).Other states besides Pennsylvania contributed cases to this collection. A federal court in Georgia determined that the plaintiff had not sufficiently alleged that the school district was on notice of a teachers sexual misconduct, and dismissed her case accordingly. The very day that the students stepfather reported evidence of the teachers misconduct to school officials, the district commenced an investigation. By the end of the day, the teacher had resigned and was facing criminal charges. Nothing in the plaintiffs complaint suggested that the school district had missed earlier opportunities to intervene, the court concluded. Specifically, the court rejected the plaintiffs argument that the school district was on notice because it knew that the teacher had been fired from an earlier job for sexual harassment. According to the court, this knowledge did not put officials on notice that the teacher posed an imminent threat to this particular student. Though the court did acknowledge past misconduct can in some cases provide notice of an imminent threat against a new victim, there must be a stronger pattern of past misconduct than what was alleged here. S.W. v. Clayton County Public Schools, 2016 WL 2755607 (M.D. Ga. May 12, 2016). In this last case, the student did not claim that the school district was liable for the teachers misconduct, but instead, for retaliating against him for having been involved in a sexual relationship with the teacher. The court quickly dismissed this claim, noting that it failed to allege many required elements of retaliation. For one, the student himself did not engage in the requisite protected conduct by reporting the teachers abuse; instead, school officials discovered it based on reports of other students. Additionally, there was no basis for concluding that the disciplinary action that the student later faced for chewing tobacco and other offenses were in any way related to his relationship to the teacher. Gordon v. Traverse City Public Schools, 2016 WL 1566721 (W.D. Mich. Apr. 19, 2019).
Last week the Womens Sports Foundation issued a new report that examines gender inequality in the coaching profession. The reports authors surveyed over 2500 current and former coaches about their experiences and perceptions of the athletic departments in which they work, and revealed some surprising and some not-so-surprising results. For example of of a not-so-surprising result, a significant minority of female head coaches (32%) perceive that mens teams _other than football_ receive greater resources than womens teams. While football is certainly included in the Title IX analysis, separating it out for purposes of a survey paints an even more compelling picture of gender inequality. Yet, sadly, a third of female coaches also believed that they would put their jobs at risk if they spoke up about gender inequality. The report also garnered data about how coaches view the equality in the terms of employment. A majority of coaches (male and female) agreed that it was easier for male coaches to get hired for high-level jobs, be awarded a multi-year contract, and successfully negotiate a raise. Meanwhile more than 40% of female coaches reported that they had experienced gender discrimination in the workplace and a third perceived that administrators favored male coaches. Notably, the report also included some interesting comments about "reverse discrimination" -- the perception that being male is disadvantageous in the athletic department workplace. In fact, 40% of male coaches, compared to only 12% of female coaches, believed that they had not gotten a coaching job because of their gender. This is an interesting pair of statistics that I think says something about gender and entitlement. Women are unlikely to believe they were ever turned down for a coaching job because of their gender despite constituting only about 20% of college head coaches. One explanation for this is that they are not going after jobs in mens sports because they do not feel entitled to those jobs the way that men feel entitled to the coaching jobs in womens sports. On the other hand, men have nearly all of the coaching jobs in mens sports and even a majority of the coaching jobs in womens sports, yet a significant percent of them still perceive that gender disadvantaged them in the hiring process. They made comments on the survey like, “I’m a white male and I can’t get the job because they have to hire a female or a minority. This is not right. The best candidate should be hired regardless of race or gender.” And, “I would do much better off professionally if I was a minority, handicapped, homosexual." They argue that "much less qualified" women "with less experience" are being hired instead of them. Based on comments like these, one imagines the college coaching market flooded with applications from optimistic, overconfident women who are seeking jobs beyond their reach (and then managing to get hired for those jobs, no less.). There are a lot of gender stereotypes that pertain to hiring, but women being overconfident in their job applications is definitely not one of them. I also have to wonder how many of these respondents are defining "experience" in a self-serving way, like assuming they receive equal "credit" for having a background in baseball instead of softball, or mens hockey instead of womens (despite the mens and womens sports having different rules). Not surprisingly, therefore, the recommendations section of the report focuses primarily on the barriers to leadership that female coaches are confronting. For example, the report recommended that athletic departments conduct open searches by hiring committees to fill high-level vacancies, including head coach positions. Departments should also have and follow policies that ensure job duties, evaluations, salaries, and other aspects of employment are handled without regard to gender. I also thought these two recommendations, aimed primarily at the NCAA, were particularly strong: * National athletic governance associations should require member institutions to undertake a periodic certification program or other third-party peer review of the operation, processes and policies of its member institution athletic programs to ensure compliance with legal requirements and best practices, including the employment and compensation of coaches. * National and conference athletic governance organizations should require that member institution athletic programs must establish policies that require a minimum number of qualified minority applicants to participate in finalist inperson interview pool for all coaching positions.
University of North Carolina is flip-flopping on HB2. Initially, UNC president, Margaret Spellings (former Secretary of Education) announced that the states flagship university would indeed enforce HB2s bathroom and locker room rules (requiring people to use bathrooms based on the sex stated on their birth certificates). This was despite Spellings own experience with Title IX and the lawsuits between the federal government and the state of North Carolina. Spellingss initial stance was to follow the law until courts said otherwise. But now Spellings has said UNC will NOT be enforcing HB2 choosing the same rationale: to wait until the legal wranglings are over. She also promised to investigate any complaints from trans students, faculty, or staff who may run into problems. No complaints thus far. In Texas, which is also suing the Obama administration for its Title IX clarification regarding trans rights, the University Interscholastic League, the governance body which controls athletics in public schools, has put into the rules that students may only compete in sports in accordance with the sex listed on their birth certificates. The spokesperson for the organization said this has always been the practice, they just wanted to put it in writing. Equality Texas will fight the new-not-new rule. In older news... A potential bill barring transgender students from using bathrooms and other marked single-sex facilities according to their lived gender is drawing concern from the governor of Tennessee. The bill being considered by the legislature is similar to the one in Texas and states that "public schools shall require that a student use student restroom and locker room facilities that are assigned for use by persons of the same sex as the sex indicated on the student’s original birth certificate.” There is no mention of transgender students, but the bill is clearly aimed at these individuals. But the governor is worried--and rightly so--that passing the law would mean the public schools would lose federal funding. As we have noted before, the Obama administration as well as the courts, have affirmed that Title IX protects transgender students and provides them the right to use bathrooms and locker rooms in their lived gender. A nearly identical bill in South Dakota, passed the by states legislature earlier this year, was vetoed by the governor in early March. The Republican governor (the legislature is also Republican controlled) said the bill was too sweeping and that these issues, when they arise--which he feels is rarely, are best dealt with by local officials. This is a bad approach. Yes, the law was also bad, because it conflicts with federal regulations, but leaving things to local officials is not a good idea either. It leaves trans students unprotected and opens up local school districts to lawsuits. In response to the increase in the number of Title IX exemptions being sought by private religious colleges and universities, LBGT rights groups have put pressure on the NCAA to prevent schools who received these exemptions (which allow them to discriminate against transgender students) from being member schools. The petition which includes about 80 groups and is being lead by Campus Ally did not sway the NCAA which declined to take the recommended actions. In a far more progressive consideration of these issues, the Albuquerque (New Mexico) Public Schools board is considering a proposal that allows transgender students to use bathrooms and locker rooms in keeping with their gender identity. There has been some concern from board members about children being exposed to the body parts of the "opposite sex" but these were seemingly quickly shut down by those who noted that any type of indecent exposure in these spaces is illegal and others who likened the discriminatory discourse against trans people to the rationale white people have used in the past against people of color. The proposal also includes the following provisions: * The district will provide age-appropriate instruction to all students on gender-based discrimination. * Students will be addressed by the name and pronoun that aligns with their gender identity. * Students are permitted to participate in physical education classes and intramural sports consistent with their gender identity. * The student and parents may request a support team meeting to ensure proper access to all programs and activities, as well as protection from gender-based discrimination. * Students have the right to dress in accordance with their gender identity within the constraints of the dress code.
News broke yesterday, after several days of rumors about who was being fired and when, that football coach Art Briles would no longer be coaching the mens football team at Baylor University and that Ken Starr had been relieved of his duties as university president, had been "demoted" to chancellor, and remains on faculty at the law school. The athletic director has been placed on probation. This is all in the wake of the university-commissioned report to look into the accusations that the school had mishandled many reports of sexual assault committed by male students. Most of the accusations were against football players, some of whom had actually been taken to criminal court and are serving jail time, but have never been reprimanded by the school. The school hired an outside law firm to conduct the investigation last fall when the years of cover-ups became more public due to an ESPN Outside the Lines report and the filing of a lawsuit by several female victims. It found, just like OTL and other media outlets had found, a large cover-up of the assaults. So here are my thoughts, in no particular order. I focus on the culture at Baylor that created this situation and less on the legal and procedural aspects of this scandal. 1. Ken Starr being demoted to Chancellor is not enough. Starrs history certainly suggests that he is capable of investigating sexual relationships and he admitted publicly that he failed in his duties as president. He even apologized to victims. This does not mean he deserves a leadership position. In fact, keeping him as a chancellor calls into question Baylors commitment to changing the culture on their campus. Starr was the guy who helped create that culture. 2. Several news outlets have posed the question: why havent things changed yet and/or will this be the watershed moment? I do not predict watershed moments anymore or cite current scandals as turning points, because I have been so wrong before. I swore that FSU/Winston was going to be that turning point for reasons I will not detail here. I was confident--and wrong. Baylor is taking responsibility (after a lot of silence), but it remains to be seen how they will fare if/when the NCAA comes to investigate or in the court of public opinion, or in real court. (See #6) Baylor is not the only school under investigation or facing a lawsuit. This news has not drawn Tennessee administrators out of their offices to admit wrongdoing or resulted in anyone being fired today at any of the other schools under investigation. The better question is why hasnt there been a turning point already? Why wasnt FSU that moment? Or Oregon? Or Colorado? Or New Mexico? Or any of the other many, many cases of student athletes committing sexual assault? 3. Dear members of the board of regents who are so shocked at the findings of the report: You are responsible for this too. No one really knows what goes on behind closed doors or at alumni/donor functions where coaches and trustees and presidents mingle and attempt to raise money for their
team school. But trustees like winning football teams because they think they brings in dollars and they make that known to university leaders who make it known to coaches. The looking the other away--or the pushing away--when problems that impede this arrangement arise may be a little more deliberate within athletic departments than in the trustee board room, but trustees would be naive to think that the desire they exude for a successful athletics program does not have consequences. Consequences that cannot be entirely placed on the moral failings (in addition to the illegalities) of those whose contracts they approve. So more _faire_, less _laissez_ (sorry francophiles).
4. Dear ESPN and other sport media outlets: Perhaps we should dwell on this story a little bit longer, engage in a little more introspection. Maybe about the ways in which sports media cover sexual assault and elevate college students who play football to celebrity status? Its too soon to furrow the brow and rub the chin wondering who will be taking over for Briles and lamenting about how Baylor football was just beginning to get good again. Also, dont forget that the rebuilding was necessary because of a 2003 scandal in which a basketball player killed a teammate and the subsequent revelations about the dysfunctional athletic department.
5. The comparisons to Penn State have been interesting and go back to the questions about why things have not changed. How could Baylor happen in a post-Penn State world?
Because Penn State was about a grown white man preying on young, vulnerable boys. People are far more disgusted and appalled by this version of a sexual predator (because of age and homosexual acts) than they are by college-age men raping college-age women.
Because there is a hierarchy and male-on-male pedophilia outranks--by far--men raping women in American culture. Maintenance of this hierarchy involves downplaying the latter by 1) not calling it rape and 2) vilifying victims. According to the report, Baylor engaged in the latter itself when it retaliated against a victim who came forward.
Because Penn State was seen as an anomaly and not as a cost of the culture of American intercollegiate sports. That is what these two cases have in common: the cover-ups and denials in order to maintain a successful athletics program. But that commonality is not something most of American society chooses to see, and that is why Penn State is not a watershed moment and arguably why there has been not been a turning point.
6. Breaking my own rule about not commenting on the legal side of this scandal: I imagine that a settlement is forthcoming in the lawsuit brought by women who were victims of assault. The question is whether the terms of that settlement will be made public. If Baylor really is all about contrition and change, then they will not place a gag order on those involved.
On Friday the Department of Education and the Department of Justice jointly released a significant guidance document in the form of a "Dear Colleague" letter that addresses schools responsibilities under Title IX to avoid discrimination against transgender students. The central premise of the guidance letter is, "The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX....This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity." Thus, transgender students must be permitted to access bathrooms, locker rooms, athletic opportunities, single-sex classes, single-sex schools, or any other sex-specific activity or requirement according to their gender identity even if their school records or other documentations say otherwise. Schools must also protect transgender students from harassment and respect their preferred names and pronouns. Here are some of my thoughts about the Dear Colleague Letter: _THE EFFECT OF GUIDANCE._ A guidance document like the Dear Colleague Letter does not create new legal requirements. In fact, if you have been following the position that the Department of Education has taken in recent enforcement actions, youll find the content of this guidance document to be familiar. The effect of Dear Colleague Letters is to raise awareness about compliance obligations so that schools can proactively adjust their conduct to avoid such enforcement actions. _THE LETTERS SCOPE_. The Letter is directed at "schools" without specifying whether it meant to include or exclude institutions of higher education. In my mind, there is no legal basis for having a different definition of sex discrimination apply to K-12 than to higher education, so it is arguable that everything in the Letter applies to higher education with equal force. Yet the Departments failure to expressly address colleges and universities may create arguments to the contrary as well. This might be particularly controversial in the aspect of athletics, where prevailing NCAA policy imposes hormone-based requirements on transgender athletes wishing to compete according to their gender identities (though the Letter appears to endorse the policy in a footnote). _FEDERAL GOVERNMENT OVERREACH?_ On the radio this morning I heard some state-level politicians complaining that the federal government lacks the right to regulate local schools in this manner. Indeed, the Constitution prohibits the federal government from _directly _regulating matters of such state/local concern, but when the federal government spends its own money, it may impose conditions on those who receive such funds. A local school district that doesnt want to comply with Title IX as interpreted by the Dear Colleague Letter is not required to do so. All it has to do is forgo federal funding, and it has no obligation under Title IX whatsoever. On the other hand, if it agrees to accept the benefits of federal funding, it must accept the responsibilities that come with it. _CONFIRMATION OF IDENTITY_. According to the Letter, all that is required to confirm a transgender students gender identity is notification from a parent. It is appropriate that the Departments expressly denounce any specific medical diagnosis or intervention as a prerequisite for a schools obligation to recognize the students gender identity. Unfortunately, however, a "parental notification" standard will leave some transgender students (those without parental support) without the right to access facilities and programs according to their gender identities -- though I understand why the Departments would not want to force schools to take sides within a divided family. Hopefully the governments express validation of transgender students identities will help nudge society in a similar direction and likely reduce the number of unsupportive parents with time. _WHAT ABOUT NONBINARY STUDENTS?_ A colleague of mine asked me what the Letter means for transgender students who dont identity as either male or female, and I thought Id post my thoughts on that question here as well. Such "nonbinary" students are not expressly mentioned in the Letter, but it seems clear to me that their rights to be protected from harassment and discrimination in general are the same as transgender students whose gender identity is specifically male or female. As for single-sex facilities and programs, however, there is not a clear answer. Presumably such a student would be treated like a member of their birth-assigned sex that is reflected in school records, since that is schools default mode of operation. But those students would not have access to facilities and programs for the other sex, however, since they cannot claim to have a similar gender identity to the students in that gender category. Theoretically, the Letter could have addressed the rights of nonbinary students by requiring schools to create third category for every program or facility that is segregated by sex, though the Departments likely (and reasonably) considered such an approach infeasible. But the omission of such a requirement doesnt mean schools cant try to accommodate nonbinary students as a matter of "best practice." For one, they could permit such students to use facilities or access programs that they feel most comfortable, whether that be consistent with their birth-assigned sex or the other sex category. For another, they could eliminate unnecessary and gratuitous sex classifications (color-coded graduation robes is an example that readily comes to mind), since the fewer places in school where sex designations matter, the more inclusive the school environment is to all students regardless of gender identity.
This is not _really_ a throwback Thursday, but it feels oddly nostalgic to write about Title IX and the cutting of womens sports teams. Not in a good way, of course. Cutting teams is always a difficult process, but it has not been nearly as much of a Title IX issue recently. But as the recent announcement from St Cloud State University (Minnesota) shows us, cutting womens teams is not a thing of the past. Five members of the womens tennis team at St. Cloud have filed a Title IX lawsuit against their university. The team is one of six that has been cut from the list of varsity intercollegiate sports in an effort to deal with budget shortfalls. The university currently provides just under 120 more opportunities for men to play sports. The undergraduate student enrollment is nearly 50/50 men/women. This does not automatically mean they have been out of compliance; they could have been expanding opportunities for women or sufficiently meeting the interests and abilities of the female undergraduate population in terms of sports and opportunities provided. It does mean, however, that with the cuts they must--post cuts--be adhering to prong one, in which the athletic opportunities provided reflects the male/female ratio in the undergraduate population. In other words, next fall there should be equal athletic opportunities for men and women at St. Cloud. The numbers will surely be in dispute at pre-trial hearings and a trial, if it gets there. Here is what my basic math revealed: Men are losing, based on the cuts alone, 92 spots (tennis and all track programs), bringing the total opportunities to 226. Women are losing 24 spots (tennis and skiing) bringing their opportunities to 178. The asterisks on these numbers include the following: 1. As in any of these calculations, the numbers can change. The number of undergraduates enrolled, especially. 2. Specific to this case, the university, when making the announcement two months ago, said it was going to reduce the number of roster spots on 7 teams and increase spots on 6 others. I do not know exactly where these additions and subtractions will occur or if it will be a zero sum game. The university has said it will increase the roster for womens track to 90 from 60. The data I was using, though, said womens track was at 73 members, not 60. But if we add 30 to the reduced opportunities, it brings the number for women to 208. Lawyers for the tennis players (one of whom is also representing former Duluth hockey coach Shannon Miller) do not like this solution. They feel the university is using this to count the same athlete as many as three times (cross country, indoor track, outdoor track) and not really increasing opportunities. Even if this is not legally wrong, I expect the university will have to respond to questions about this plan, and reveal their other plans sooner rather than later, i.e., when they go to court next month to deal with the request for an injunction. Because, yes, the women have asked for a temporary injunction against the cuts that affect the opportunities for female athletes until the legal issues are resolved. That request will be heard on June 3. They are also seeking class action status. It is possible that the universitys intention to reduce spots on the football and baseball team along with increasing the numbers on the track team will bring them into proportion.The question remains though whether they can so drastically increase the womens track team. We have seen some sketchy roster management around womens track. Even if the lawsuit is not successful because the university has a plan for proportionality, they will certainly be on notice that they have to effectively and legally execute that plan. One final thought: as I read the articles about the lawsuit I got the impression that these cuts were the proverbial final straw for many female athletes who feel the athletic department has not been treating them equitably. The cuts may have felt like such a tangible and actionable move, and some women are using the opportunity to illustrate the inequities. But even if the university brings itself into compliance with the quantity of opportunities, they may not be providing a similar quality to women. I sense quality is also an issue at St. Cloud. If it is, a complaint filed with OCR might be worth it to address the inequities other female athletes may be experiencing.