- Court Dismisses Title IX Count Against Pepperdine
- Utica College Selective Deploys Title IX Excuse
- Another female coach terminated: University of Delaware
- Prom season discrimination
- Court Dismisses Expelled Student's Case Against Vassar
- Expulsion for bathroom use
- DOJ Challenges Discrimination Against Transgender Professor
- Court Dismisses Lawsuit Challenging the Clery Act Amendments
- Sexual Assault Litigation Update
- Bathroom policies that make sense
- Ohio State Hockey Coach Resigns Over Harassment Complaints
- OTL covers young transgender athletes
- "Co-Champions" in Connecticut Raising Title IX Concerns
- Lots happening on women in coaching and leadership
- Government Files Brief in Support of Transgender Student's Title IX Lawsuit
- NYC Public Schools Violate Title IX With Athletic Offerings
- More Campus Sexual Assault Litigation Updates
- Another Litigation Roundup
- Northwestern Professor's Title IX and Defamation Suits Dismissed
- Statistics: Surprising and non-existent
- Fired Tufts Coach Files Complaint
- Iowa complaint & coaching behavior
- Litigation Roundup
- OCR to Investigate University of Minnesota Athletics
- Court Clarifies Pleading Standard for Title IX Cases Challenging Campus Disciplinary Outcomes
In December, we blogged about a lawsuit filed against Pepperdine University by two college basketball players who allege they were harassed and mistreated by their by their coach and other university officials because they are lesbians. Last week, a federal court in California narrowed the scope of their lawsuit by dismissing their Title IX claim, along with some of their right to privacy claim. (The court refused to dismiss the plaintiffs claims under California state law, which prohibits sexual orientation discrimination by educational institutions that accept state funding.) The court dismissed the plaintiffs Title IX claim because it alleged discrimination on the basis of their sexual orientation, specifically, the coachs concern that they were dating each other, which is not prohibited under Title IX. Yet, the court acknowledged that that sex discrimination includes targeting people who do not comply with stereotypes associated with their sex, and granted the plaintiffs leave to amend their complaint to add allegations to support that as the basis for the discrimination they experienced at Pepperdine. As I noted in my earlier post, I was rooting for this case to push the courts to adopt a broader version of the sex-stereotype theory, one that accepts same-sex orientation as the type of gender nonconformity protected under sex discrimination bans. So far, gay and lesbian plaintiffs have only succeeded in challenging discrimination due to some visible gender nonconformity, such as in ones appearance or mannerisms, although the EEOC has adopted the broader interpretation. I wonder if the plaintiffs will add allegations of discrimination due to gender nonconforming appearance to their complaint, and/or take the opportunity for future litigation on its amended complaint to urge the court to accept discrimination motivated by the fact that they were women dating each other as a form of gender nonconformity discrimination actionable under Title IX. Videckis v. Pepperdine University, 2015 WL 1735191 (C.D. Cal. Apr. 15, 2015).
The student newspaper at Utica College apparently has a tradition of publishing a satirical issue on April Fools Day. This years issue featured some off-color humor including, as described in this article, a "sexually explicit bingo game featuring derogatory remarks toward women," and a "photo depicting a woman with a beard as the school’s most eligible bachelorette." I know, yuck. But when I heard that the college president censored the issue because of concern for "Title IX litigation" I have to say, it sounded to me like another case of using the statute as an excuse to justify an unpopular decision. To bring a Title IX lawsuit, a plaintiff has to challenge harassment that is so "severe or pervasive" that it interferes with the plaintiffs ability to get an education. Two offensive pages in the student newspaper are nowhere close to that standard. I have no opinion on whether the paper should have been censored, but I object to the "Title IX made us do it" excuse, which already gets plenty of play when college athletic departments cut mens teams. Title IX does not micromanage institutions decisions in that context, and it does not micromanage their reactions to the student paper either. Censor or dont censor, but dont misrepresent the scope of Title IX as enabling a lawsuit over everything that causes offense. The statute has enough haters already. Moreover, it appears that Uticas concern over Title IX litigation is limited to the student paper. At a school where women make up over 56% of the student body, only 39% of athletic opportunities are in womens sports. Thats a 17 percentage point disparity and among the most egregious Ive seen in present day. If Utica College is really so litigation risk adverse, perhaps in addition to censoring the paper, it also ought to add a couple more womens teams.
In the wake of similar stories out of Duluth, Iowa, and Tufts, we note that another female coach has been terminated this year, this time by the University of Delaware. Softball coach Jaime Wohlbach was reportedly fired abruptly on Monday afternoon, in the middle of her season. According to Wolhbach, she was told at the time that she "ran a hostile environment" for her players, which she disputes and points out that she had not received any indication from her supervisor that players had complained or were unhappy. Considering public comments Wohlbach has since made, it appears that an alternative possible explanation for her termination is that it is the culmination of an ongoing conflict with her supervisor, associate athletic director Joe Shirley, whom Wolhbach accuses of micromanaging her team and giving her an unwarranted poor performance evaluation. Given that Wohlbach apparently reported him to human resources for "bullying," it seems possible that her termination is retaliation for her complaint. It remains to be seen whether Wohlbach will take any legal action invoking Title IX. It is certainly possible that the "bullying" she complained of targeted her because she is a woman and/or because she coaches a womans team. Additionally, if the university had actually received complaints about the coachs "hostility" towards her players, the fact that its response to those complaints was to immediately terminate the coach could reflect a sexist double standard, if it is the case that Delaware would have permit male coaches with more leeway in that situation, such as an opportunity to address or explain the complaints. The Title IX angle is speculation on my part. But since we have seen other examples of similar bias against women coaches, including the very recent examples noted above, it is not far fetched to consider the possibility of sexism underlying this case as well.
I know we do this every year, but this is another post about discrimination against gender non-conforming students. It always happens somewhere in the United States during prom/yearbook season. The latest incident--out of Louisiana--is nothing unique (unfortunately). A gay high school student wanted to go to her prom wearing a tuxedo. According to a student contract, girls (regardless of sexual orientation) must wear dresses to the prom. She had heard that teachers would refuse to chaperone the event if a girl arrived wearing a tuxedo. The good news, and maybe what makes this story somewhat different from others, is the quick reversal of the school policy. Schools administrators, including the principal who told the students mother "Girls wear dresses and boys wear tuxes, and thats the way it is," came under pressure from the National Center for Lesbian Rights. So, yay--I guess. But the reason I keep writing these things is that they keep happening. We have been focused on bathrooms lately and of course there are ongoing issues about gender identity and sports participation as well. Though I do not want to create an issues hierarchy or suggest that bathrooms and sports are more sensitive/less palatable topics for many in America than prom attire, I do think that the policing of gender via high school fashion is something people just need to let go of. A lot of todays fashion is a throwback to the 80s--the era of androgyny. (And if we were not in 80s redux, this policy would still not be acceptable.) Raising healthy children and keeping them safe is not about monitoring where they pee and what they wear to prom. But there will be another incident like this next year, maybe even this year; prom season is far from over. I hope stories like this in which the backlash against administrators was strong and quick are serving as a deterrent. On a different, non-Title IX note, this dress code in Monroe, Louisiana (available at the first link), in addition to being discriminatory against LGBT individuals is also pretty classist. The mandate for tuxedos and gowns and no athletic shoes is certainly a financial burden for some students. It is less likely that these students will come forward because of shame around their economic situation and because we find it very difficult to recognize class discrimination in a country that presents itself as a meritocracy.
Last week a federal court in New York ruled in favor of Vassar College, granting its motion for summary judgment on discrimination and other claims filed by a male student who had been expelled for sexual assault. The plaintiff, Peter Yu, and the female student who accused him had provided a university disciplinary committee with vastly different accounts of the encounter at the heart of this case; he claims he asked her if she wanted to have sex and she agreed, while she claims that she did not agree and was "helpless" to resist his advances. They also had different interpretations of the messages she sent to him later, in which she apologized for leading him on and offered to "stand up" for him should get in to any trouble over the fact that someone in his dorm called security (because they thought he was "potentially hurting somebody."). His position is that the messages verify his version of the events, while she claims she sent them in a state of "denial," "shock" and "disbelief." Based on this evidence -- along with the statements of witnesses who testified to the female students intoxicated state and that they were concerned for her when they saw her leave with him -- the committee found Yu responsible and the college expelled him in March of 2013. He sued the university three months later. (We blogged about his complaint at the time.) Yus primary claim against Vassar is that the colleges decision to expel him violates Title IX. His argument to this end incorporated two alternative theories that have been accepted by earlier precedent (coincidentally, also involving Vassar College) in cases challenging university discipline: erroneous outcome and selective enforcement. First, Yu claimed that gender bias created a flawed process leading to an erroneous outcome. To this end, Yu made numerous allegations of procedural flaws. For example, he argued that he was not given enough time to consult with his lawyer prior to the hearing, that he had insufficient opportunity to conduct a cross-examination of witnesses, and that there bias on the part of the disciplinary committee arising from the fact that the complainants father is on the faculty. The court rejected these and other procedural challenges as being either without factual basis or support in law. Moreover, even if Yu had established a procedural flaw, the court determined that he presented no evidence that gender bias caused the error. For example, the court noted, he did not provide any statements by committee members expressing any sort of discriminatory intent, nor did he "provide any statistical evidence that males invariably lose when charged with sexual misconduct at Vassar." Instead, Yu argues that only bias could explain why the committee did not read the complainants post-incident messages as evidence of his innocence. But the court rejected this inference of institutional bias, noting that the committee was free to credit the complainants explanation for the messages, and to weigh the messages against other inculpatory evidence, such as the testimony provided by the other witnesses who were concerned about the complainant. Yu also argued that Vassars policies are biased because, on the one hand, students who are incapacitated by alcohol cannot be said to have consented to sex, while on the other hand, accused students are held responsible for recognizing that, even when they are themselves intoxicated. Yet, while the court acknowledged that the policy may well reflects a "double standard" it is a double standard that benefits complainants over respondents, not women over men. Vassars policy is written in a gender-neutral manner and does not assign the role of complainant and respondent based on sex. Moreover, the court recognized that Vassars own sexual assault response training emphasizes that sexual assault complaints could be filed by men or women, against men or women. Yus second Title IX argument of selective enforcement fared no better than his erroneous outcome argument. He could not establish that men were treated more harshly than women because Vassar has never had to respond to a sexual assault allegation against a female student. Moreover, Vassar provided examples of cases in which male students accused of sexual assault were not expelled. As this case and others demonstrate, plaintiffs challenging university discipline for sexual assault have a difficult time prevailing under Title IX, as there is often very little evidence of gender bias for them to point to. Yet this does not mean universities are free to throw the book at all those accused of sexual assault in order to avoid charges of under-enforcement of Title IX standards (as some Title IX critics may believe). Other avenues remain available to plaintiffs seeking to challenge university discipline, including due process (which only apply against state schools), breach of contract (on the theory that the code of conduct, including its disciplinary procedures, are a contract between the university and the student), and (perhaps) negligence or other torts. In this case, Yu did not prevail on his breach of contract claim because the court had determined that Vassar had not violated its own procedures. But, while not applicable here, that cause of action remains available to protect students in the event a university fails to deliver promised procedural rights to students accused of wrongdoing. Decision: Xiaolu Peter Yu v. Vassar Coll., 2015 WL 1499408 (S.D.N.Y. Mar. 31, 2015).
My last blog post a few weeks ago was a hopeful one about transgender students and bathrooms. This post, less hope, more dismay. A federal judge has ruled that the expulsion of Seamus Johnston from the University of Pittsburgh at Johnstown was not in violation of anti-bias statutes and dismissed his lawsuit. Johnston, a transgender man, was expelled in 2012 from the University of Pittsburgh at Johnstown for "exhibiting disorderly, lewd or indecent behavior." What did he do? He used the mens bathroom and locker room facilities. We had not heard of this story at the time. It surely would have been one of the earlier cases of transgender bathroom policy. This ruling, had it occurred at that time, would have preceded the recent spate of cases in which students have been given the right to use facilities in accordance with their gender identity. This weeks ruling back then would still have been problematic; but now it seems anomalous and thus even more worrisome. Even though there has been strong opposition to transgender students using bathrooms and locker rooms in accordance with their gender identity, largely from religious organizations, policies and legal rulings have upheld these rights. Not so here. Johnston used mens bathrooms without (according to Inside Higher Eds article--linked above) any problems. It was, apparently, his use of the mens locker rooms when he was taking a course in weight training where he ran into problems--seemingly from the administration. There is no report of student complaints, though that does not mean there werent any. They wanted him to use a unisex bathroom. He continued to use the mens facilities. This led to the disciplinary hearing and his expulsion for the "lewd behavior." The university claims that Johnston could not use the mens bathrooms and locker rooms because he was not legally a man. He had identified as a man since his enrollment in 2009 and began hormone therapy when he was a student. He had legally changed his name and presented the documentation of this fact to the university. Johnston offered "proof" of his gender identity that was both more than adequate and unnecessary. This burden of proof on transgender students continues to be, well, a burden. But the university wanted a birth certificate. We have discussed, mostly in the context of interscholastic and intercollegiate sports, the issues with a birth certificate requirement. Many states will not, for example, re-issue a birth certificate for change of gender. This legal requirement is one that the IOC mandates for transgender athlete participation--one of the many critiques of IOC policy. Now a university is requiring that document--for a student who wants to use the mens bathroom. Seamus Johnston will be the same person with or without that document. Without it he is a person who commits acts of lewd behavior. With it, according to the University, he is a man who is not infringing on anyones privacy rights or acting in an unbecoming way. This is the paradigm that the federal court upheld in dismissing Johnstons lawsuit.
The Department of Justice has filed a lawsuit against Southeastern Oklahoma State University on behalf of a transgender professor who did not receive tenure after she transitioned on the job. The university had hired Professor Rachel Tudor in 2004 to a tenure-track position in the English Department. At the time, she presented as a man and went by a traditionally male name. In 2007, she came out as transgender and began cultivating a female appearance consistent with her gender identity. She was later terminated in 2011 after having been denied tenure by the university. She then filed a complaint with the EEOC, the federal agency that enforces employment discrimination laws. The EEOC investigated the case and determined that there was reasonable cause to believe that discrimination occurred. When a settlement could not be reached at that point, the Justice Department agreed to litigate the case, as part of what the agency is calling a "joint effort to enhance collaboration between the EEOC and the Justice Department’s Civil Rights Division for vigorous enforcement of Title VII." The case also provides the Justice Department an opportunity to put into action the position it outlined in a memorandum last December, in which it interpreted "discrimination on the basis of sex" to include discrimination on the basis of "gender identity and transgender status." This expansive view of sex discrimination goes even farther than the protection some courts have found for transgender plaintiffs on the basis of gender nonconformity or the fact of their gender transition. The lawsuit contains several allegations that support the inference that the universitys tenure decision was motivated by discrimination. For one, Professor Tudor had been recommended for tenure by her department chair. At this university, such recommendations are routinely followed, yet in Tudors case, the Dean overrode the decision. Also, the lawsuit alleges that someone in the human resources department told Tudor that the Dean asked HR whether it would be permissible to fire Tudor because her "transgender lifestyle" offended his religious beliefs. While the case is filed under Title VII, Title VII decisions in the realm of sex discrimination are very influential in Title IX cases. So a positive outcome in this case could translate to expanded federal protection for transgender students as well.
Last year we blogged about a lawsuit filed in federal court on behalf of a female student at the University of Virginia that was seeking to nullify the amendments to the Clery Act contained in the reauthorization of the Violence Against Women Act. The plaintiff had reported to her university that she had been the victim of sexual harassment and assault. After investigating the matter, the university did not find the accused student responsible for the alleged misconduct. The student then filed a complaint with the Departments of Education and HHS, alleging that UVA violated Title IX in the handling of her complaint. After the VAWA reauthorization, she filed this lawsuit seeking an order from the court that would compel the federal agencies to disregard the newly-amended Clery standards to the investigation of her case. She argued that these standards were weaker than Title IXs and therefore diluted its protection. Some of Clerys weaknesses, she argued, are its failure to codify a preponderance standard or a definition of consent. Last week, the federal court in D.C. dismissed the lawsuit based on an "erroneous interpretation" of the Clery Act amendments. As the court correctly states, Clery and Title IX impose simultaneous, not alternative, requirements. Therefore, and as the Department of Education has since clarified, nothing in the Clery Amendments changes an institutions obligations under Title IX in any way. The plaintiff apparently, and not unreasonably, wishes that Congress had endorsed the preponderance standard as a matter of statutory law (a stronger and potentially more lasting source of law than the Department of Educations interpretation on this issue) and that it had chosen to define consent. Yet, Congresss failure to do this isnt actionable in a court of law. The plaintiff is no worse off under the amended Clery than she was prior to those amendments. While she may believe that the Clery Act amendments should have been stronger, that is a policy argument more appropriately directed at the political process. Doe v. U.S. Dept of Health and Human Servs., 2015 WL 1316290 (D.D.C. Mar. 24, 2015).
Numerous Title IX lawsuits have been filed recently, with claims stemming from incidents alleged to involve sexual harassment and sexual assault: * A female student has sued James Madison University for failing to adequately discipline three fellow students who sexually assaulted her during a spring break trip and then circulated a video of the incident among the student body. She alleges that the university violated Title IX by delaying the disciplinary process for over a year before finally handing down suspensions that will not kick in until the offending students have graduated. JMU is facing an investigation by the Department of Education into this same matter, as we have earlier noted. * A male graduate of Boston College has sued his alma mater for disciplining him for sexual assault while he was a student. He alleges that the institution did not provide a fair hearing before finding him responsible for sexual assault and suspending him for three semesters. The student eventually graduated and unsuccessfully prevailed upon the Boston College to reexamine his case. The lawsuit seeks $3 million in damages. * Parents of a fifth-grade student in Grand Rapids, Michigan, have sued the school district for suspending the boy for ten days for sexual harassing comments and gestures that he allegedly made, and for expelling him after he allegedly touched a female student inappropriately. The lawsuit alleges that school officials violated the boys right to due process by not determining in either incident whether the accusations were accurate before taking disciplinary measures against him. * A Harvard University professor has sued the institution, alleging that she was denied tenure in retaliation for criticizing its handing of sexual assaults. The plaintiff, anthropology professor Kimberly Theidon, alleges that she was warned that speaking out would hurt her during tenure review; she also claims that she quickly turned from someone who was assured tenure into someone being denied tenure once she began advocating for sexual assault victims. * A male student alleged to have sexually assaulted a female graduate student at Stony Brook University, has sued his accuser for defamation and seeks damages of $10 million. We have already blogged about the accusers suit against Stony Brook, in which she alleges that the university mishandled her case before finding him not responsible. She has also sued him directly.
It is always nice to Friday blog a positive story. Pierce College, a community college in the state of Washington, issued a memo to the college community this week about the use of bathrooms by transgender individuals. My cursory Google news search did not reveal any particular incident, though what I suspect has happened is that trans* and gender queer peoples use of bathrooms on campus is upsetting some individuals who have turned to the administration for redress. This was the response from the colleges Title IX coordinator (also the VP for human resources):
_Recently we have received questions from members of the college community at both Fort Steilacoom and Puyallup about transgender individuals and restroom use. The short answer is that every member of the Pierce College community is free to use whichever restroom aligns with their gender identity. Pierce College is also in the process of identifying gender neutral restrooms on both campuses, which will be available for anyone to use, regardless of gender identity or expression._
_It is not up to other people to determine whether or not a given person is in the “right” restroom. If an individual chooses to enter that restroom, it is the right restroom for them. (In the rare event that they entered the restroom by mistake, they will certainly exit upon realizing the mistake without any outside help.)_
She does go into the long answer which involves state and federal laws and includes some links for additional information, including one about the application of Title IX protections to transgender students.
The response reminded me a little of this photo from the Transcending Gender Project that I have seen around social media in the past few weeks.
Of course as we have seen in the several cases of high school athletic associations attempting to pass policies governing the participation of trans* athletes, bathrooms and locker rooms cause some people to grow quite agitated. There is a presumption, which I mentioned the other day, that trans* people are predatory and will engage in sexual acts with unwilling cisgender people in bathroom spaces. Thus, people who report a trans* or gender queer person using the "wrong" bathroom may feel they are being preemptive when they call security. The letter to the Pierce College community addressed this as well:
_If any person is behaving dangerously or actively harassing others in a restroom or any other Pierce College space, please contact Campus Safety. The mere presence of someone using the restroom does not qualify as a dangerous or harassing activity and should not be cause for alarm or complaint._
Ohio States womens hockey coach has resigned in lieu of being fired for misconduct that included sexual harassment of his players. The university reportedly commenced investigating Nate Handrahan last November after receiving an anonymous complaint from a teacher or instructor that one of his players had shared in class the fact that he made sexually explicit comments to the team. In the course of investigating the complaint, the university received verifying testimony of other witnesses, who attested not only to his use of sexual language and innuendo (such as for example telling them in practice to "get horny for the puck") but also his verbally abusive and intimidating style. (The universitys report also concluded that he had engaged in retaliation against his players as well, though the news account I read did not go into details on this.) Earlier this year, Kris blogged about the dismissal of UNHs womens hockey coach over an incident in which he assaulted a player by pulling her to the bench by her shirt, causing her to fall. And I cant help but ask about this case the same question Kris asked then: would this have happened in mens sports? Notwithstanding prominent counterexamples, such as the dismissal of Rutgers mens basketball coach for abusive conduct towards his players, there is still a lot of tolerance for, and even expectation of, an aggressive style among coaches of mens teams. At the same time, cultural stereotypes about female athletes suggest that aggression is not appropriate for them. That puts coaches of womens teams -- men and women alike -- in something of a double bind as they receive mixed messages from society (and possibly from the culture of their athletic department): be aggressive, to prove yourself as a coach. But dont be aggressive towards female players, because women are different. The fact of this double-bind is not only dangerous for coaches, but for players as well. Not only because coaches may wrongly infer that abusive conduct is appropriate, but also because when the coach is dismissed for such misconduct, that in itself further diminishes the athletes experience by depriving them of continuity in coaching. By no means do I point out this double standard to condone the actions of Coach Handrahan here. Nor do I suggest that Ohio State in particular is practicing a double standard. (In fact, Ohio States similar response to the band director situation last fall suggests that Ohio State is consistent when it comes to addressing sexual harassment in its programs.) But in a larger sense, this case helps illustrate the importance of being consistent across mens and womens programs when it comes to tolerating harassment, abuse, and bullying by coaches. Aggression that crosses the line into that territory should never be mistaken for a coachs job requirement, regardless of the sex of the athletes he or she is coaching.
Shows like Outside the Lines give me a little more faith in ESPN. This weeks episode (a piece of which can be found here) profiled two transgender athletes and discussed more broadly the issue of trans athletes in youth and high school sports. The episode focused on two transgender students. The first, Leo, is a trans boy in Maine who recently came out and received permission to swim on the boys team at his high school. Maine is one of the 33 states that has a policy addressing the participation of transgender athletes in high school sports. They passed their policy in 2013 and Leo took his situation to the high school athletic association which approved his participation on the boys team last fall. Leos experience, based on his own telling and interviews with his teammates and coach, was positive. What was striking about his interview was the reminder to all of us that this issue is about more than just the right to participate (not to diminish the very important civil rights component here). It is about what sports can provide participants: "I think I can go through a lot more more confidently than if I hadnt [had this experience]." Also important to note is that Leos teammates and coach are very supportive of his participation. The three teammates OTL interviewed called him brave. The other story, of Shay, is a sharp contrast to Leos because she lives in Montana which has been unable to successfully pass a policy regarding transgender participation. I wrote about the policy proposal in January. That policy was withdrawn, according to OTL, because the Montana High School Association did not feel it had enough votes (it needed a 2/3 majority among its 120 members) to pass. This has left Shay, who competed in both track and basketball as a middle schooler, unable to play high school sports. Shays story is particularly sad because she has struggled throughout her transition and sports offered her an outlet. OTL interviewed members of conservative Christian organizations that opposed the policy. (Not all of these interviews made it to the above clip.) So-called privacy concerns arose again in this conversation. This argument continues to privilege the the privacy of cisgender children over that of transgender children. This was especially interesting in Shays case because she was not out when competing in middle school and would change in bathroom stalls to protect her identity--and I would argue, her personal safety. This leads to another issue that opponents have: safety in locker rooms. This is an argument similar to one that has been made against gays and lesbians, which assumes an innate predatory instinct (recall the campaign against gay Boy Scouts). Safety in a locker room is the result of the culture of that locker room, regardless of ones sexuality, gender identity, hormones, chromosomes, or genitals. The safety of gay and transgender people is far less secure than their heterosexual and cisgender peers. Another conservative safety argument is that mixed gender locker rooms--their term, which negates the gender identity of the transgender children--will result in undesirable shenanigans of a sexual nature. Lets not forget the many, many, many incidents of hazing and bullying in locker rooms that are perpetuated among cisgender people of the same sex and involve acts of genital touching and penetration. These are all straw man arguments, which one can easily see through when the opponents refer to transgender children using their biological identity and encourage them to be comfortable being themselves and not hiding who they are; what they mean is not hiding their biological sex. The implication is that these children are being both deceptive and unnatural--that is the foundation of their opposition, not safety concerns. The rationale behind why youth and interscholastic sports should exist in our culture includes the belief that they are character-building, and teach leadership, cooperation, and sportspersonship. And though we can poke many holes in this Great Sports Myth, there are still many children who benefit a great deal from sports participation at a young age. To deny these experiences to any child is an injustice and to deny them by blaming and labeling and stereotyping them is unconscionable.
Champion. Noun. "A person who has defeated all opponents in a competition or series of competitions, so as to hold first place." Well -- usually. In Connecticut yesterday, two girls ice hockey teams squared off to determine the state champion. After three periods of regulation play, the score between the team from Simsbury and the team from East Catholic/Glastonbury/South Windsor was tied 2-2. So they played a period of "sudden death" overtime, in which, if either team had scored, the game would have ended. But no one scored. So they played another overtime period. Still, no one scored. Then, as the teams geared up for a third overtime period, officials told the teams to line up on blue lines so they could be awarded co-champions. As ESPN-W reports, the decision not to let the game continue until there was a winner caused confusion, surprise and disappointment. It not only departed from the expectations that athletes generally have about the ending of a championship game -- but apparently, from the rules for determining this particular championship that had been circulated to the teams ahead of time: "eight minute sudden death overtimes until the game is decided." In addition to disappointing the players involved, the situation has also raised Title IX concerns. For one thing, there is reportedly good reason to believe that the girls state championship game ended without a winner so that the later-scheduled boys game, a conference championship, could begin on time. And many believe that if the situation were reversed, a boys state championships would never have been allowed to end without a winner. Title IX requires that schools provide boys and girls with athletic opportunities of similar quality. One factor of quality, as specified in the regulations, is the scheduling of competitions. For example, courts have determined that the practice of depriving girls of the opportunity to play games during the "prime time" (usually, weekend and evening times) violates Title IX because it demotes girls sports to a second-class status. The regulations also specify that girls and boys should have access to athletic facilities of equal quality. For example, some states hold high school championships at a large premier arena, such as a state university. If only boys teams have access to this high level of quality (see, e.g.), that would violate Title IX. What happened in Connecticut yesterday could arguably violate Title IX, either as an example of unequal scheduling or as an example of unequal access to facilities. If Connecticut schools schedule the boys state championship at a time of day, e.g., evening, when the game can be played to its conclusion, but the girls, scheduled during the day, have to stop early to accommodate the next game, then there is inequity in the scheduling of competitions. Similarly, if the boys state championship is held at a rink that does allow adequate time for the game, but the girls state championship is hosted at rink that is not able to provide adequate time, the latter rink is a facility of inferior quality. Yesterdays championship could have either been held at a different location---one that could accommodate a complete game---or it could have been allocated a different time period--i.e., a sufficiently long enough one to allow the game to conclude. If it is not possible to make those kinds of accommodations to both boys and girls championship games in the same year, schools could agree to provide the better facility/schedule to the girls championship one year and to the boys the next. Alternatively, the schools could have imposed a rule that shortens the time it takes to play a championship game --boys _and _girls -- such as by ending it by penalty shots after a certain number of evenly-matched overtimes, so that they both fit in the time and place allotted to them. Title IX does not mandate _how_ schools provide equal treatment to girls and boys athletic programs, only that they do. Hopefully the schools in Connecticut that participate in girls hockey learn from yesterdays mistake and ensure that future girls championships receive the equal respect they deserve and the equal treatment the law requires.
I have been meaning to write this post for several weeks now and it seems appropriate to do so--finally--on International Womens Day. There has been a fairly significant (relatively speaking) media attention given to the issue of women coaching womens sports in the past few weeks. Both Erin and I have been speaking to the press and on radio (here, here, and here) answering questions about why there is a lack of female coaches, the specific situations at Iowa and Minnesota Duluth, and if Title IX can address this issue. The statistics have been stated: the percentage of women coaching womens teams at the intercollegiate level has dropped from approximately 90% when Title IX was passed to its present percentage of approximately 40%; there has been no comparable (or rather none at all) rise in women coaching mens sports. While we appreciate the coverage this issue has received, these are not new numbers. This is not a new problem. The answer to the why now question is most likely due to these high-profile cases coming in quick succession. It is important to note though that these are high profile cases because the coaches involved have challenged their firings. We have seen coaches file complaints and lawsuits in the past (Fresno State, FGCU are just two examples) after being fired. The frame in these cases though has been one of retaliation. Most of those coaches felt they were being retaliated against for complaining about and challenging the treatment of their womens programs. Title IXs protection against retaliation is clear and several of these cases resulted in large jury awards. They still, however, lost their jobs and many have not gotten back into coaching, in part because the situation for female coaches is so dismal. This has been the focus of the current debate: the culture in which female coaches work. This is an important conversation (also not new but seemingly now more public). It has also inspired a closer look at programs. The Tucker Center released its women coaches report card recently. Miller and her advocates have spoken about the lack of athletic department support for womens ice hockey. At Iowa, former field hockey coach Beth Beglin compiled a very thorough and quite disheartening report about the state of the athletic department since the womens and mens departments merged in 2000--and more specifically what has happened since current AD Gary Barta took over in 2006. Beglin notes that in this time 83% of female head coaches have been fired. In the same time only 11% of male head coaches have been let go. Last week the Institute for Diversity and Ethics in Sports released its annual report card about the state of gender and racial equality in intercollegiate sports. From the report summary: College sport received a C+ for racial hiring practices by earning 78.5 points, down from 82.3 points in the 2013 report card. College sport received a C- for gender hiring practices by earning 69.4 points down from 75.9 points. Lost in the recent conversations have been discussions of race. All of the women we have been talking about are white women. The picture of the female head coach is most often of a white woman. This weekend, discussing stereotypical images of female leaders in sports with friends, I rather uncritically presented a white woman as the norm. And though the statistics certainly bear out this picture, the absence is in dire need of being addressed whenever we are discussing women in leadership positions. The norm has to be challenged.
The U.S. Department of Education, acting through the Department of Justice, has filed a brief in support of a transgender students lawsuit against his Michigan school district. The student, a sixth grader in the Wyandotte public schools, alleged that school officials refused to refer to him by his male name and pronoun or allow him access to the boys bathroom, and did not intervene to protect him from the harassment of his peers. The governments brief (officially a "statement of interest" as the government is not a formal party to the litigation) argues that Title IX is applicable to his case. Though the statute by its terms limited to sex discrimination, the government urges the court to interpret sex discrimination to include discrimination on the basis of gender nonconformity, gender identity, and transgender status, as other courts and federal agencies have done in applying sex discrimination provisions of other antidiscrimination statutes such as Title VII. Importantly, the government emphasizes that any of these grounds may be the basis of a sex discrimination claim. This is important because gender nonconformity, while the least controversial and most precedent-supported theory of sex discrimination, without more, would likely provide this plaintiff incomplete relief. Specifically, it may not support his right to use the male restroom -- because when the school refuses to treat him like the other boys in that regard, they are discriminating against his status as a transgender person or someone with a transgender gender identity, not because he doesnt dress or act like a stereotypical member of his natal sex (female). Thus, it would be most helpful to this plaintiff -- and other transgender plaintiffs future -- for the court to endorse the governments broader interpretation of sex discrimination, one which would allow Title IX to serve the basis for challenging discrimination targeting a students gender identity or transgender status.
The Department of Educations Office for Civil Rights announced this week that it has entered into an agreement obligating the New York City public schools to come into compliance after finding that the countrys largest school system violated Title IX by depriving athletic opportunities to girls. OCR had been investigating the school system in response to a 2010 complaint filed by the National Womens Law Center. OCR found that the New York City Department of Education could not satisfy any one of the prongs in the familiar three-part test for measuring equity in the distribution of athletic opportunities. The test allows schools to demonstrate compliance with evidence of either (a) a distribution of opportunities proportionate to the percentage of students of each sex; (b) history and continuing program expansion for the underrepresented sex (here, girls); or (c) providing enough athletic opportunities to satisfy the interests of the underrepresented sex. In examining the first prong, OCR found that NYC public high schools would have had to provided 3682 additional female athletic opportunities to achieve proportionality. The second prong was also out of reach, as it was actually the _over_-represented sex that benefited more from program expansion, netting 125 more boys teams that girls teams over the time period under investigation. The Department also denied more requests to add girls teams than boys over the relevant period. Finally, the Department could not satisfy the third prong, as it was unable to demonstrate that it even examined the interest level of its female students at all, let alone by any of the methods that OCR considers like surveys or participation data in non-scholastic athletics. Moreover, the fact that the Department had denied requests from school principals seeking to add girls teams in sports like volleyball, softball, basketball, soccer, tennis, cross-country, bowling, golf, and swimming served to indicate unmet interest. In response to this findings of noncompliance, the Department has now entered into an agreement obligating them to assess female students athletic interests by multiple means including but not limited to surveys, and to add teams as appropriate in response to evidence of unmet interest. It must also develop a procedure by which students can formally request the addition of teams and provide Title IX training to athletic directors.
Title IX lawsuits related to campus sexual assault remain in the news: * University of Colorado-Boulder has settled a lawsuit with a student who claimed the university discriminated against him in violation of Title IX in the process of finding him responsible for the sexual assault of a fellow student in 2013. The university will reportedly pay the student $15,000, and the student, in turn, has promised to withdraw. Per the terms of the settlement, if asked for a reference the University will not disclose anything other than the fact that he was found responsible for two violations of the code of conduct, and that prior to his withdrawal he was in good academic standing. The universitys general counsel referred to the settlement as a "business decision" to avoid the high cost of litigation, while the plaintiffs attorney was happy that the settlement preserved her clients anonymity in connection with the "false accusations" of assault. * A fraternity at Wesleyan University has sued the university challenging its requirement that residential fraternities become coed over the next three years; a policy change in the wake of (and presumably responsive to) accusations of sexual assault that have taken place at fraternity houses. The lawsuit, filed by the local chapter of Delta Kappa Epsilon, one of the two residential fraternities affected by the new policy, claim that it singles out male organizations in violation of Title IX. Reports elsewhere suggest that the reason Wesleyans only sorority was not affected by the policy is because they do not maintain on-campus houses -- a fact that could make it difficult for the DKE plaintiffs to sustain their argument that Wesleyans policy is differentiating based on sex. * A female student has sued the University of New Mexico alleging that the university responded with deliberate indifference to her report that she had been drugged and sexually assaulted by two football players while other players watched and recorded it on video. She claims that the university conducted a lackluster investigation in order to shield the players from disciplinary action, including by ignoring witnesses and failing to consider evidence. The accused students were temporarily suspended from the football team during the off-season, but were reinstated prior to the conclusion of the investigation. Meanwhile, the plaintiff alleges that she was harassed and re-victimized as football players continued to share video of her from the night of the assault. She suffered emotionally as a result, and was unable to attend classes. She eventually lost her academic scholarship, forcing her to withdraw from UNM and enroll at a school with higher tuition. Her lawsuit seeks damages to compensate her for those losses. * A female graduate student has sued the University of Stony Brook (part of the SUNY system) alleging that the university violated Title IX in the hands-off manner it handled the disciplinary process of the student she accused of assaulting her in his dorm room. University officials conducted an investigation but when it came to the hearing required the plaintiff to present her own case against the accused student after only providing her a week to prepare her case. The accused student was found not responsible for assault because it appeared to the disciplinary committee that the sexual contact between them was consensual.
Here are some updates in various cases where Title IX is being used to challenge sexual harassment and sexual assault in high schools: * In Michigan, a former student has filed a Title IX lawsuit against the Traverse City Area Public Schools, alleging that the school district was indifferent to harassment and retaliation he faced after reporting that a teacher had engaged him in oral sex and had been sending him sexually explicit text messages. (The teacher was later criminally convicted.) * In a similar matter, a federal judge in Pennsylvania refused to dismiss a mothers claim against the Susquehanna Township School District challenging the hostile environment her daughter faced after police arrested the principal for having sex with her daughter, a 16-year-old student. (The principal has plead guilty.) * In yet another matter involving teacher-student harassment, a court refused to dismiss a students case against the Seattle School District where the student alleged that she reported the teachers harassing comments, stares, and touches to the principal, and that the principal did not follow up in any meaningful way, allowing the teachers conduct to escalate to more egregious physical contact. R.P. v. Seattle Sch. Dist., 2015 WL 418001 (D. Wash. Jan. 30, 2015). * The State Board of Education in Hawaii will have to continue to defend a lawsuit arising out of the repeated instances of rape of a female special-needs high school student by one of her male special-needs peers. In rejecting the states motion to dismiss, the court agreed that the plaintiff adequately alleged that school officials failed to supervise the male student even though they were on notice of the fact that he had attacked the female student off campus, and that the lack of supervision provided the male student the opportunity to rape the female student in a coed bathroom on campus. Kaukaho v. State Bd. of Educ., 2015 WL 470230 (D. Ha. Feb. 3, 2015).
Earlier this month, a federal district court in Illinois dismissed claims filed by a Northwestern philosophy professor against Northwestern and a student who had accused him of sexual assault. The court dismissed Ludlows Title IX claims against Northwestern after concluding that he had not sufficiently alleged discriminatory motive. Ludlows complaint criticized the procedure by which the university conducted the investigation of the graduate students complaint that he had sexually assaulted her in the context of an otherwise-consensual romantic relationship. He also challenged the universitys conclusion--having found insufficient evidence to substantiate the graduate students allegations--that Ludlow was guilty of capitalizing on an equal power dynamic, on the grounds that Northwestern had no policy against such relationships. Yet, the court refused to infer from the fact of these allegations alone that Northwestern could have violated the professors rights under Title IX, since the complaint contained no allegation that Northwestern officials were motivated by bias against Ludlow on the basis of sex. The court also dismissed Ludlows claims that the graduate student had defamed him when she directed her complaint against Ludlow to Northwesterns general counsel. Defamation is a tort that renders a defendant liable for making false statements against the plaintiff. However, some statements are subject to a qualified privilege, meaning that the defendant cannot be liable for them, even if they prove false, unless the plaintiff shows that the defendant was acting maliciously when making the statement. The court determined that the graduate students statement is subject to the qualified privilege because it is a statement made to an employer about alleged employee misconduct__. The court recognized that the privilege is justified by the strong public interest in having misconduct reported. Accordingly, the court examined Ludlows complaint against the graduate for evidence of malicious intent. However, all Ludlow alleged was that her statement was untrue, and the court refused to infer malice from that alone. (The court also dismissed a second charge against the graduate student for invading his privacy by presenting him in a false light, because the situation did warrant making an exception to the requirement that a false light claim involve the "public presentation" of private matters--a requirement not satisfied by the graduate students communication with the university counsel.) When we blogged about this case while it was pending, we noted concern for the possibility that defamation lawsuits could potentially have a chilling effect on valid reports of sexual assault. The courts decision appropriately addresses that concern by recognizing the privilege afforded to statements made in the context of such complaints. While a person who makes a false report of sexual assault for malicious reasons like retaliation or spite can still be held accountable, the law does not impose liability every time a sexual assault report does not prove true. This limitation provides important protection for erstwhile whistleblowers, who may actually _be _telling the truth, yet fear the possibility of not being able to marshal enough evidence to support their claim, as well as in cases where the accuser turns out to be mistaken because of memory lapse or trauma. In such cases, the accusation will not stand, but nor will it give rise to liability on the accusers part. Decision: Ludlow v. Northwestern Univ., 2015 WL 508431 (N.D. Ill., Feb. 5, 2015).
A short, but important editorial from this past weekends New York Times about the statistics on campus sexual assault covering two angles. The first is one with which many are familiar: we dont know the rate of campus sexual assault. The one in five statistic is based on a small sample size. The unreliability of that number is fodder for those who believe the problem is not as serious as the recent campus activists have made it out to be. It has also been suggested that the number is inflated because women are "crying rape" when they regret their sexual encounters and/or have a grudge against a fellow student and are using the campus judicial process to get him (usually this is in reference to heterosexual encounters when the man is the accused and the woman the victim) expelled. We need better numbers to stop this discourse because, as those of us involved in the study of and activism around this issue know, the number is likely higher because of underreporting. The many stories that have emerged from the movement illustrate why people do not report sexual assaults. The questions about why victims dont just go to the police ignore both the poor treatment victims receive in the system including the difficulty in prosecuting rape cases. But as we have unfortunately seen, the campus judicial system is often failing these victims, too. The movement may be bringing these injustices to light, but it is hard to say if reporting will increase or decrease because of it. I would like to believe that more people would come forward to report sexual assault, but it likely depends on the campus environment and the history of the institution in its handling of cases. This brings me to the second angle of the editorial: the reporting of sexual assaults that colleges and universities are required to do under the Clery Act. All campus crimes must be reported but it seems that sexual assaults have been the most controversial because schools have been underreporting them. Some of the nearly 100 schools under investigation for Title IX violations in relation to the handling of sexual assault are also facing Clery Act violations. Here is what I did not know about Clery Act reporting that the editorial shed light on: "When the Department of Education audits universities for possible Clery Act violations, reports of sexual assault rise dramatically, by approximately 44 percent; when the period of scrutiny ends, reporting rates fall right back to pre-audit levels." This was evidence of a study that looked at data from 2001-2012 during which time the government conducted over 30 Clery Act audits. This is disturbing. There have long been calls for putting some teeth into Title IX as it applies to sexual assault and Assistant Secretary of Civil Rights in the Department of Education Catherine Lhamon promised that the department would indeed pull federal funding from offending schools. Tht has not happened yet. Clery Act violators, though, already incur fines. Unfortunately they do not seem, based on the above data, to be much of a deterrent. This is from a 2014 Inside Higher Ed article about Clery Act violators and their punishments: "In spite of that increased scrutiny, colleges facing penalties have continued to be successful in getting their Clery Act fines reduced, according to data provided by the Education Department. Far more often than not, colleges are able to either persuade officials to lower the fines or enter into a settlement through which they pay a lower amount than the department had originally proposed. Of the 21 Clery Act fines that have actually been imposed on colleges since 2000, 17 have been lower than the department initially proposed, the agency’s data show. Among those institutions successful in winning a discount on their fines, the average reduction was more than 25 percent and usually represented tens of thousands of dollars. The largest discount, proportionally speaking, was a $110,000 fine that the department proposed against Pittsburgh Technical Institute in 2005; the for-profit institution based in Oakdale, Pa., was ultimately fined half that amount, $55,000, in 2007." This is a bad--as in ineffective--precedent and does not bode well for putting some force behind Title IX compliance either.
Though its no longer truly "news," I recently learned that former mens tennis coach Jamie Kenney filed a Title IX complaint with the Department of Education back in December alleging that her termination from the position was illegally motivated by gender stereotypes and double standards. According to the complaint (which I have read but do not have a link for) Coach Kenney suspended two team captains for violating the teams drinking policy. As part of their suspension, a decision Kenney had cleared with the Athletic Director, the players were banned from attending the conference championship in any capacity. The players attended anyway in defiance of their coach, so Coach Kenney confronted them, as well as a (male) assistant coach who had been in on their plan, to insist that they leave. In response, the rest of the team rallied around the suspended players by enlisting their parents to complain to the university president. The Athletic Director then withdrew his support for the coachs decision, and a representative from human resources confronted Coach Kenney with the parents complaints, which had been forwarded by the President, as well as the negative evaluations that the students had filled out in the wake of (and in obvious reaction to) her unpopular disciplinary decision. Eventually, after raising gender equity concerns about the way she was being treated, Coach Kenney received notice on July 1 that she was terminated from her position. The complaint alleges that the universitys response to the complaints about Coach Kenneys decision to discipline her players was discriminatory on the basis of gender, in that male coaches are afforded greater freedom to engage in coaching methods that female coaches are scrutinized for. Additionally, she alleges that Tufts tends to ignore complaints made against male coaches and to support male coaches decisions to discipline their players. I am hopeful that OCR will investigate this complaint and expose some of the under-examined obstacles facing female coaches in general (see also Kriss post from yesterday about the Iowa complaint), and female coaches of male athletes in particular. As the complaint points out, gender stereotypes create the expectation that women, including female coaches, embody a "caretaker" role. When they step out of that role and into a stereotypically male"leadership" role, they are often penalized for it in overt and subtle ways. This puts female coaches in a double bind, because the leadership model is generally more valued that the caretaker model, and may be particularly so when the athletes in question are male. It is no wonder that women constitute a mere 2-3% of the head coaches of mens teams, while men, in contrast, are the majority of coaches of mens teams. This matter, therefore, provides OCR with a rare opportunity to address a concrete, individualized example of conduct that contributes to a widespread problem.
Two pieces of news from two of my alma maters today. One, four field hockey players at the University of Iowa have filed a Title IX complaint with OCR in conjunction with the firing of field hockey coach Tracey Griesbaum. The second: University of New Hampshire fired womens ice hockey coach Brian McCloskey signed an admission of wrongdoing in a case of assault against a player during the course of a game. Regarding Iowa, we were expecting something Title IX related to come out of this situation, but we presumed it would be a lawsuit from Griesbaum. (This still could happen, of course.) So it was a pleasant (in that unfortunate kind of way) surprise to hear about the four student-athletes taking the initiative and filing the complaint. The premise of the complaint is that the firing of Griesbaum, a highly successful coach, disadvantages female athletes, i.e, they are not receiving treatment equal to that of their male peers. They also contend that there is unequal treatment of female and male coaches within the department noting that the alleged abusive behavior committed by Griesbaum (based on student exit interviews) is tolerated when it is done by male coaches. This relates to the case at UNH. The original story from McCloskey, who did have a lawsuit pending against the university for a while, was that he grabbed a players shirt after she came off the ice and spoke back to him when he reprimanded her for her performance. He contended that this would have been tolerated if he were a female coach and/or coaching men. And he was probably right. This does not excuse his behavior or make it acceptable. It does point to the double standards that exist around gender and coaching styles--the same ones that the Iowa complaint points out. McCloskey, as part of the admission--which includes more details (he pulled the players shirt which caused her to fall and hit her head; he then grabbed her face mask)--will attend anger management classes. I was about to suggest that all coaches take anger management classes or that there be better training programs for coaches, but I do not think the solution is that simple. We chastise coaches who engage in abusive behaviors, but the paradigm never shifts away from the idea that harsh disciplinarians and tough love and other such euphemisms are the key to creating a successful team. We justify these behaviors by pointing to athletes who say they are motivated by such tactics. I believe there is more (there always is!) to both the Iowa and UNH situations that resulted in the dismissal of these two coaches. Even if it was the only reason, there are gendered implications to the bad behavior rationale. Still, there is a huge positive to take out of, at least, the Iowa complaint. The four student-athletes are challenging their department, a pretty bold move given that three of the four will be returning athletes next season. I suspect there may be a Title IX whisperer somewhere in Iowa City. Regardless, I hope the activism is contagious. Maybe it will head north towards Duluth??
Two separate Title IX lawsuits have been filed recently, one challenging disparities in athletic opportunities at a high school, while the other alleges a college mishandled her complaint of having been raped by a fellow student. * A parent in Englewood, Tennessee, is suing the McMinn County Board of Education on behalf of his daughter, a freshman at McMinn Central High School who participates in softball and volleyball. He alleges that disparities in the athletic opportunities for girls violate Title IX. In particular, he alleges that the softball team has to pay itself for field maintenance and equipment, amenities that are provided to boys teams from the school budget. Also, the school does not provide the softball team with a lighted field, which limits the teams scheduling options for practices and games. The complaint also notes that the boys baseball team is provided superior quality locker rooms, dugouts, field house, storage facility, playing surface, and warm up and practice areas. The lawsuit seeks an injunction against continued discrimination and damages to compensate the plaintiff for out-of-pocket expenses and other costs. * A former student is suing the West Virginia School of Osteopathic Medicine, claiming that she was forced to withdraw after she reported to school officials that she had been raped by a fellow student at an off-campus party. She alleges that school officials responded to her report by advising her to leave school, since they could not guarantee her safety. Additionally, she claims that they did not administer a drug test, leaving her on her own to discover that her assailant had drugged her with diazepam, that they failed to protect her from further contact with him, that they threatened to sue her if she spoke out, and that they breached her confidentiality. Moreover, she alleges that she experienced a sexually hostile environment after a school employee who was dating the alleged, disclosed details of the incident to the campus community. Her complaint demands damages to compensate her for emotional distress and other costs, as well as an injunction that would require the school to do a better job responding to victims in the future by implementing drug tests and protecting them from harassment and retaliation. And in another story, a Title IX lawsuit was partially dismissed. * The Bibb County School District in Georgia prevailed in dismissing part of a students Title IX claim seeking damages for a 2012 rape she suffered at the hands of a gang of fellow students who had orchestrated a plan to attack her in a school restroom. The student alleged that two prior instances of gang rape at the school, one in 2008 and another in 2002, should have put the school on notice of the threat, one of the required elements for institutional liability to attach in cases of sexual harassment and sexual violence among peers. But the court ruled that the two earlier gang rapes could not serve as notice because they were sufficiently different, having been conducted by different gangs than the one that raped the plaintiff. In imposing this requirement for gang-specific notice, the court rejected plaintiffs argument that the schools notice of a gang rape problem in general should suffice. The plaintiffs other argument, that the school also responded to her own rape with deliberate indifference, continues to be litigated. The remaining claim could potentially result in damages attributable to the schools indifferent response, which itself could have been the source of some independent emotional distress. However, the dismissed claim was likely considerably more valuable to the plaintiff, as it would have made the school liable for damages arising from the rape itself. Doe v. Bibb County Sch. Dist., 2015 WL 403320 (M.D. Ga. Jan. 28, 2015).
The Department of Educations Office for Civil Rights will investigate a Title IX complaint directed at the University of Minnesota athletics department, according to an article in the local press yesterday. The complaint alleges that the department does not provide comparable facilities to womens programs, as evidenced by the womens cross-country and track teams exclusion from a proposed $190 million athletic "village" that will provide facilities for football and mens and womens basketball. The running sports, which account for almost half of the opportunities offered in womens athletics, will actually be losing their existing track to make way for the new village. The team, along with its mens team counterpart, may even be relocated to a facility four miles away in St. Paul. OCRs investigation would presumably focus on the overall treatment of mens and womens athletic programs in comparison to each other. At first blush, it seems problematic that the new facility will benefit a far greater number of male than female athletes and that its construction seems to be disrupting a far greater number of female athletes than male (running sports account for 227 opportunities for women and 145 for men). Depending on the level of quality of the facilities for other womens sports, however, its theoretically possible for OCR to determine that the programs receive equal treatment in the aggregate. We shall see what the investigation reveals.
Earlier this month, a federal district court in Ohio considered Miami Universitys motion to dismiss a lawsuit filed by a male student whom the university had expelled after a disciplinary board found that he had committed sexual assault on another student. The court found that the student had not sufficiently alleged a Title IX violation in his complaint, though it granted him the opportunity to amend his complaint and try again. In evaluating the students first attempt, the court provided an analysis that is useful to understanding the scope of institutional liability under Title IX in cases challenging universities decisions to discipline students for sexual assault or other misconduct. The students argument in this case is that he did not commit sexual assault, but rather, had consensual sex with the female student who later accused him. He thus charges the university disciplinary board with having reached the wrong conclusion in his case. Accordingly, the court refers to this claim as an "erroneous outcome" claim, as earlier court decisions have done. Citing twenty-year-old precedent* the court explained that a complaint alleging an erroneous outcome in violation of Title IX must include allegations of (1) facts sufficient to cast doubt as to the accuracy of the outcome of the disciplinary proceeding and (2) causation, i.e., that the errors were the result of gender bias. The second requirement is important because it separates conduct that could possibly give rise to liability on other grounds, like negligence or breach of contract, from conduct that constitutes sex discrimination in violation of Title IX. At the pleading stage, it is not difficult for plaintiffs to satisfy the first requirement, as the student in this case easily did by alleging his version of the facts as they relate to the matter of consent. The second requirement is typically met if the complaint alleges "statements by members of the disciplinary tribunal, statements by pertinent university officials" or "patterns of decision-making that also tend to show the influence of gender." In this case, the complaint included neither type of allegation. It is not a sufficient "pattern" allegation to point out, as the student in this case did, that “[i]n virtually all cases of campus sexual misconduct,” the accused student is male and the accuser is female. The court addressed another recent case, also from Ohio, in which a plaintiff like the one here sufficiently pleaded erroneous outcome in violation of Title IX, and thus survived the universitys motion to dismiss. In that case, Wells v. Xavier University, the plaintiff alleged that bias stemmed from the fact that Xavier was being investigated by the Office for Civil Rights for failure to adequately protect sexual assault victims, and as a result, was motivated to use him as a scapegoat to improve their image. The court was satisfied that such an allegation could, if proven serve as evidence of gender bias on Xaviers part.** In the present case against Miami University case, the plaintiffs complaint did not contain allegations of the "scapegoat" theory that had been present in Wells v. Xavier University, though the court indicated that if the plaintiff amends his complaint along these lines, he may be able to withstand dismissal as well and continue to litigate his Title IX claim. The court gave the plaintiff a month to re-file an amended complaint. We shall see what happens. Sahm v. Miami Univ., 2015 WL 93631 (S.D. Ohio Jan. 7, 2015). *the age is worth noting, in light of common misconception that Title IXs application to sexual assault is something brand new. The decision the court relied on is Yusuf v. Vassar College, 35 F.3d 709 (2d Cir. 1994). That case also set forth selective enforcement model as an alternative to the erroneous outcome model for framing Title IX challenges to university disciplinary decisions. In selective enforcement cases, the plaintiff does not need to allege his innocence, only that the university engages in a pattern of disciplining only members of one sex and ignoring complaints of similar violations by the other sex. ** The parties in Wells v. Xavier University decided to settle rather than go to trial, so it does not serve as an example for how to _prove _bias, only how to plead it.