- Court Allows Student's Pregnancy Discrimination Lawsuit to Proceed
- Lawsuit Filed Against Michigan State Over Sexual Assault Response
- FSU doth protest too much
- OCR Title IX Roundup
- Round-up: Gender and locker room/bathroom policies
- Two Sexual Assault/Harassment Cases Withstand Motions to Dismiss
- Former Iowa Athletics Administrator Files Retaliation Suit
- Banning Transgender Girl from Girls' Locker Room Violates Title IX, OCR Says
- Advocates Urge Government to Clarify Title IX's Application to Social Media Sites Like Yik Yak
- Sexual harassment roundup
- Two More Disciplined Student Suits Dismissed
- Roundup of School District Sexual Harassment Cases
- Student Discplined for Off-Campus Conduct and Tweets Wins Appeal on Narrow Grounds
- Lawsuit against Minnesota-Duluth
- New survey, more stats and facts to ponder about campus sexual assault
- OCR Settles with UVA After Investigation Reveals "Mixed Record" of Compliance
- Professor's Title IX Claim Against Northwestern Dismissed
- Michigan State's Grievance Procedure Violated Title IX
- Court Will Not Dismiss Disciplined Students' Title IX Claim Against Salisbury University
- Back to school, back to reality
- Campus Sexual Harassment, Sexual Assault Litigation Roundup
- 11th Circuit Reverses Summary Judgment in "Rape Bait" Case
- Settlement in Oregon case
- LAS-ELC "Fair Play" Video
- Title IX Claim Dismissed in (Yet Another) Disciplined Student Case
A federal court in Florida has refused to dismiss a lawsuit filed by a former student against Northwest Florida State College alleging that the institutions failure to reinstate her after a medical leave necessity by complications due to pregnancy violated her rights under Title IX. In reaching this decision, the court confirmed that indeed, Title IXs private right of action encompasses pregnancy discrimination claims. The university had disputed this point by arguing that pregnancy discrimination is only covered in the regulations and not expressly mentioned in the statute, a factor that determines whether a plaintiff can file a lawsuit that seeks damages and other remedies for violations of Title IX. Nevertheless, the court concluded that pregnancy discrimination is included in the meaning of sex discrimination as Congress understood it when it enacted Title IX. For example, the court noted that Title IXs sponsor Senator Birch Bayh specifically mentioned pregnancy discrimination when describing the "social evil" Title IX was intended to address. Additionally, though the regulations cannot themselves give rise to a cause of action, the fact that the Department of Educations predecessor agency interpreted sex discrimination to include pregnancy discrimination when promulgating Title IXs implementing regulations is an interpretation to which the court defers. The courts sound reasoning in this case reminds me of the Supreme Courts decision in Jackson v. Birmingham School District, which similarly confirmed Title IXs private right of action includes retaliation claims even though retaliation is not expressly mentioned in the statute itself. In that case as well the Court refused to impose an unduly narrow construction on the meaning of sex discrimination and affirmed Congresss intent to broadly address the issue. Decision: Conley v. Northwest Florida State College, 2015 WL 7180504 (N.D. Fla. Nov. 12 2015).
Last week four women filed a lawsuit in federal court against Michigan State University to challenge the institutions response to incidents of sexual assault that they reported while enrolled as students. Two of the plaintiffs were allegedly assaulted by the same individual associated with Kappa Sigma fraternity, which is also a defendant in their case. In both of their cases, the university allegedly took an unusually long time to resolve the matters, 285 and 485 days respectively. The first plaintiff also alleges that the universitys response amounted to the "deliberate indifference" required for institutional liability because school officials merely put the assailant on probation after finding him responsible for violating the code of conduct, for trying to dissuade her from filing a complaint to challenge retaliatory harassment, for allowing him to remain in the dorm where they both lived, and for suggesting that she transfer rather than take action to ensure her safety. The second plaintiff alleged that her case was also mishandled when the university officials departed from its stated policy by re-opening the matter after it had been resolved by the disciplinary process and upheld on appeal, and allowing the findings of a second investigation to overturn the decision to discipline the assailant. The third and fourth plaintiffs cases stemmed from reports against a different assailant but which also alleged indifference on the part of MSU officials. In one case, the Title IX Coordinator is alleged to have ignored the plaintiffs hospital records from the sexual assault examination that was conducted on the night of the rape. The other alleges that her rights were violated by the universitys decision to allow her expelled assailant to return to campus for graduation. Michigan State has recently been cited by the Department of Educations Office for Civil Rights for not responding to sexual assault reports in a prompt and equitable manner, a point that the plaintiffs include in their complaint as well. Because courts use a different and higher of liability than the agency does, OCRs conclusions do not control the outcome of this lawsuit. They do, however, add context to the plaintiffs claims involving similar problems of delay and unfair treatment.
Tonight CNN will air _The Hunting Ground_ much to the dismay of current and former folks connected to FSU. Dismay that includes the threat of legal action. Former quarterback Jameis Winston has, through his lawyer, threatened to sue for libel. Winston is still embroiled in legal action. Erica Kinsman, who is part of the documentary about campus sexual assault, has accused Winston of rape and is suing him. Despite Kinsman reporting her rape immediately (she did not know her attacker was Winston when it happened), FSU dragged its heels investigating even when she told administrators months later who it was when she recognized him on the first day of spring classes and was able to put a name to the face. Due to the significant bumbling of the case and the leaking of information, criminal charges were never filed. An equally problematic student judicial hearing found Winston not responsible. An investigation into FSUs handling of sexual assault is ongoing. Kinsman talks about her experience as do the other women featured in the documentary. After being run out of FSU because of the backlash against her from football fans, it was Kinsmans first public experience. As I said above, she has since filed civil charges against Winston who is countersuing her. FSUs president John Thrasher has come out and said CNN is being irresponsible by airing the documentary. He is comparing the documentary to the now discredited story in _Rolling Stone_ about a rape at University of Virginia saying it does not live up to journalistic standards. The comparison is bordering on hyperbolic. These women all came forward to talk on film about their experiences at schools all over the country. The documentary highlights the cultures at colleges that have resulted in the epidemic that is campus sexual assault. And it reports, using these womens stories, on how their institutions did not address what happened to them. The film also includes interviews with employees in student life and campus police. Filmmakers contend they make space for administrators from FSU to comment on film, but Thrasher denies that assertion. Thrasher is bandwagoning with professors at Harvard Law who also are contesting the presentation of the story of a former law student who was assaulted and saying the documentary contains inaccuracies and inconsistencies. I was not a fact checker for the film, so I cannot speak to those accusations. But I am pretty surprised that administrators and professors from schools that have ongoing and very public problems with race and gender are throwing stones at this film rather than addressing the many issues on their respective campuses. Right now it looks like they are too preoccupied with a PR campaign. Also, this movie is--relatively speaking--old. It debuted at Sundance last year and was released in theatres shortly thereafter. I saw it in April at my local theatre. Where was the outcry then? CNN is getting heat for airing the movie but I did not see much protest when it came out last spring. (There was some protest at FSU among the devout fan base and calls that Kinsman is a liar.) There are, last I saw, 177 open investigations at the Office of Civil Rights that will examine the practices and policies surrounding campus sexual assault at just under 150 colleges and universities (some schools have multiple complaints pending). That fact is not in dispute. It is not an exaggeration to call this problem an epidemic. All those open cases as well as the ones that have been closed, have stories attached to them. We have heard of some of the more visible ones--the stories of protest, of mattress-carrying, of activism--there are so many more. More than this documentary can hold--more than any documentary can hold.
Here are links for a few recent stories about administrative enforcement of Title IX: The Department of Educations Office for Civil Rights has entered into an agreement with Mercer County Community College in New Jersey that will require the college to revise its grievance procedure to comply with Title IX requirements and review all sexual harassment and sexual assault complaints filed in the last academic year to determine whether those requirements were satisfied. The colleges grievance procedure must be revised on a number of matters such as identifying its application to all matters of sex discrimination including sexual harassment and sexual violence, clarifying the process for filing a complaint, establishing a prompt time frame for resolution, endorsing a preponderance evidence standard of proof, and providing similar procedural rights for the complainant and respondent. OCR has reportedly opened three investigations at universities in the state of Texas in the past year, including a broadly-focused one at Texas A&M that will consider a male students complaint that the universitys disciplinary process violates male respondents rights. The complainant in that case was suspended for seven months after a disciplinary hearing found that he had violated university policy by forcing a female student to have oral sex with him. Though OCR investigations into issues related to sexual assault typically focus on the rights of the complainant, it is not unprecedented for OCR to investigate respondents rights as it is doing here, as demonstrated by an ongoing investigation at Brandeis.
A student at the University of Wisconsin-Whitewater filed a Title IX complaint with the Department of Educations Office for Civil Rights alleging that the Dean of Students did not adequately respond to a sexual assault she reported; specifically, in that the Dean failed to interview witnesses to the incident or accept the students police report or medical records from the incident. She also alleges that it was three months before her assailant was removed from her classes.
* Counsel for a Virginia high school student seeking an injunction against and rescinding of the Gloucester County school boards bathroom policy that requires transgender students to use separate, private bathrooms has asked the appellate court to reconsider the dismissal of the Title IX claim in the case. As we wrote about over the summer, the judge in this case made comments from the bench that gave the impression that he had already made up his mind in this case as well as providing a lengthy non-sequitur, and not allowing experts from the justice department to testify. The ACLU lawyers representing student Gavin Grimm, a high school junior, want Judge Doumar to consider Title IX when ruling about the school boards policy. An equal protection claim stills exists, but Doumars rants about transgender as a mental disorder make me wonder how long that one will persist and/or what kind of fair hearing can result. Apparently Grimms lawyers are concerned as well. It appears that, in addition to the Title IX appeal, Grimms lawyers are asking for a new judge to be appointed to the case. They cite his suspicions around modern science and gender identity and his repeated use of the term mental disorder in describing people who are transgender. * Erin recently wrote about OCRs order that an Illinois School District allow a transgender student use all the facilities (restrooms, locker rooms) in accordance with her gender of identity. This piece offers more of the back story of that situation, with more information coming from the girls mother and her daughters experiences. * Another personal story of a transgender childs school experience has become a book. Nicole Maines who, with her family and a team of GLAD lawyers and advocates, successfully challenged restrictions on her bathroom use, is the subject of a book by journalist Amy Ellis Nutt. Parents, Wayne and Kelly Maines, and Nutt were on Fresh Air last month talking about their family and the book. * Nebraska, one of the 14 states with no policy regarding the participation of transgender children in interscholastic sports (according to Trans* Athlete), is raising the issue. The Nebraska School Activities Association continues to work towards a policy and it has many voices whispering in its ears--including parochial schools which want participation to be based on gender listed on a birth certificate. As in other states where this issue is being discussed by state activities boards, conservative Christian groups have been quite vocal in their opposition to transgender students using restroom and locker room facilities in accordance with their gender of identity. The Nebraska Catholic Conference and Nebraska Family Alliance say the gender by birth certificate is the best policy for all students and believe that more liberal policies are the result of fear of litigation. Those making decisions are right to be afraid of litigation should they institute such a policy. Cases across the country--never mind the federal governments weighing in on the issue--affirm that students should be allowed to use single-sex facilities in accordance with their gender of identity. While this seems to be about sports, it is really about locker rooms. The groups in opposition are far more concerned with where children are changing clothes and peeing and less about where they are playing soccer. This has been evident in cases in Minnesota and Montana where "family values" groups have taken out ads and used various scare tactics invoking molestation and sexual assault to prevent transgender children from using bathrooms and locker rooms based on gender identity. * Some of the same Catholic groups are none too happy with new Health and Human Service proposal that would prohibit discrimination in the delivery of health care services to transgender patients. This is basically, from what I read, a Title IX-esque approach to sex discrimination that explicitly protects against discrimination faced by transgender individuals. But, as noted above, these groups are not happy with the governments interpretation of sex discrimination to include gender, an interpretation of Title IX that has allowed transgender children to enter bathrooms, for example, based on their gender of identity. They see the Obama administrations support of Title IXs application to transgender people as dangerously contagious now that HHS has adopted a similar interpretation. * In New York state, a parent concerned that a transgender boy has been using the boys locker room called the Alliance Defending Freedom, the Christian advocacy group that is raising concerns about the HHS policy. The group sent a letter to the school in Leroy, New York stating that it is misinterpreting Title IX because " Title IX specifically authorizes schools to maintain separate facilities." Not exactly. The student in question is not named, but apparently is doing fine--as are most other students. Apparently there is a welcoming attitude in Genesee County.
In two separate cases, courts recently rejected universities efforts to dismiss Title IX lawsuits early in the litigation: First, a federal court in Virginia refused to dismiss a Title IX lawsuit (which we earlier blogged about here) against James Madison University to challenge the universitys response to reports by the plaintiff that she had been sexually assaulted by fellow students on a spring break trip to Florida, who then posted a video of the incident. The court agreed that the plaintiffs allegation that the universitys response was deliberately indifferent because it refused to address the video unless the plaintiff filed a formal complaint was a sufficient basis for liability. Waiting for a student to file formal complaint to take any action might be an appropriate response in circumstances where the allegations are vague or uncertain, but here, there was no such uncertainty due to the video evidence. Additionally, the plaintiffs harassment was ongoing as long as the video was still being disseminated. For these reasons, a jury could view the universitys failure to take action about the video without a formal complaint as deliberate indifference. Having so determined, the court did not need to consider whether the universitys decision to punish the assailants with "expulsion upon graduation" was also an example of deliberate indifference. But I suspect this issue will be relevant as the litigation in this case continues. Of note, OCR is also investigating possible Title IX violations arising out of this same matter. Butters v. James Madison University, 2015 WL 6825420 (W.D. Va. Nov. 6 2015). In the second case, UCLA failed to convince a federal court to dismiss a case filed by a female graduate student who alleged the university failed to adequately respond to reports of sexual harassment by a male professor. UCLA argued that the student was not subject to any further harassment after she had complained about the professor (the plaintiff disputed this). However, court noted, the plaintiff is not required to show further harassment as a way of demonstrating the universitys deliberate indifference. "The Court agrees with plaintiffs that placing undue emphasis on whether further harassment actually occurred to gauge the responsiveness of an educational institution would penalize a sexual harassment victim who takes steps to avoid the offending environment in which she may again encounter the harasser." Takla v. Regents of the Univ. of California, 2015 WL 6755190 (C.D. Cal. Nov. 2, 2015).
Jane Meyer, a former senior associate athletic director, sued the University of Iowa last week, alleging that she was demoted in retaliation for complaining about the termination of the field hockey coach in 2014. The coach, Tracy Griesbaum, is Meyers partner. As we have noted already on the blog, Griesbaum was fired last year after some of her players complained that she was verbally abusive, but Griesbaum and her supporters say that her termination reflects a double standard that punishes female coaches for behavior that is tolerated and even expected in mens sports. The Office for Civil Rights is currently investigating whether Griesbaums termination violates Title IX. Meyer, meanwhile, who had worked in Iowas athletics department since 2001,was transferred out of the department and reassigned to a job in facilities the very day after she presented the Athletic Director with a written complaint challenging the discrimination against female coaches and other women in the department. The university claims that her transfer was necessary to avoid a conflict that Meyer would have in the event that Griesbaum sued the Athletic Department (which hasnt happened yet). In addition to challenging the alleged retaliatory demotion, Meyers lawsuit also alleges that she was the victim of sex discrimination while she worked for the department when she was passed over for promotion to deputy director despite her qualifications for the job. She also alleges that she was paid substantially less than male administrators with comparable jobs. Meyers lawsuit was filed in state court. Notably, Iowas employment discrimination law expressly covers discrimination on the basis of sexual orientation. Meyer reportedly seeks reinstatement to her former position, back pay to account for sex discrimination related to her salary, and an external review of the departments demotion and hiring decisions.
At the close of its investigation of Township High School District 211 in Illinois, the Department of Educations Office for Civil Rights concluded yesterday that the districts exclusion of a transgender girl from the girls locker room facilities at the high school violates Title IX. The student in question was assigned a male sex at birth but has identified as female from a young age and in middle school began a public transition to female with her parents support. The school district has been supportive of her in many ways; OCR notes that the high school records identify her as female, that the staff and classmates use her preferred name and female pronouns, and that she has access to girls restrooms and plays on girls athletics teams. Yet for the last two years, district administrators have prohibited her from changing in the various girls locker rooms in the building, even though the student is willing and in fact prefers a private space (a restroom stall) within the girls locker room. Instead, administrators offered to make available a separate changing area that is adjacent to the girls locker room. The student objected to this arrangement on the grounds that being relegated to an adjacent area actually draws more attention to the fact she is singled out for exclusion. She instead changes in another area made available, which is a locked single-stall restroom elsewhere in the building. As a result of its inconvenient location and the fact that she must find a staff member to unlock it for her, the student has been late to physical education class a number of times, and is sometimes unable to access uniforms needed for class. She has also been excluded from informal camaraderie with her teammates that sometimes occurs in the girls athletics locker room (which is different from the P.E. locker room) prior to practice. She was also excluded from the pool locker room. OCRs conclusion in this case is that excluding the transgender student from the girls locker room impairs her educational opportunities and does so on the basis of sex in violation of Title IX. It noted that the school could remedy this violation and protect the privacy interests of its students at the same time by installing privacy curtains in the various locker rooms -- something that it had indeed already done in the girls P.E. locker room. Such privacy enhancements would serve the interests of all students, including the transgender student in question, who has expressed a willingness and preference for using them, as well as any other student who would feel uncomfortable changing in front of other girls. The agency has given the school district 30 days to reach a voluntary agreement along these lines, in lieu of bringing a formal enforcement action. This is not the first time OCR has expressed an opinion on transgender students gender-consonant usage of single-sex facilities. In resolution agreements with other school districts, the agency has taken the position that transgender students should be treated in accordance with their gender identity, including when it comes to bathrooms and restrooms. This case is unique, however, for its particular focus on locker rooms and the extensive treatment of that issue.
The Chronicle of Higher Education reported yesterday on recent efforts to clarify Title IXs application to sexual and other forms of harassment perpetrated by anonymous users of social media sites like Yik Yak. A letter to the Department of Education signed by over 70 advocacy groups presented research and examples to illustrate the problem of social media harassment, where the anonymity of such fora allows users to post comments that range from rude to hostile, including actual threats of bodily harm, without any accountability. The advocates call on the Department of Education to issue guidance that specifically addresses schools and universities legal obligation to address harassment that occurs on such forums. The Department of Education already insists that harassment that utilizes technology such as cell phones and the Internet as actionable as long as it rises to the level of a hostile environment. According to its 2010 guidance, "Harassment creates a hostile environment when the conduct is sufficiently severe, pervasive, or persistent so as to interfere with or limit a student’s ability to participate in or benefit from the services, activities, or opportunities offered by the school." The advocates letter presented numerous examples of harassment on Yik Yak that rises to this level. Yet, they argue, many schools have taken the position that there is nothing they can do to address harassment that occurs in this form due to the anonymity of the postings. They also suggest that the Department of Education address schools concerns about students constitutional rights to free speech, by clarifying when online harassment crosses the line from protected to nonprotected conduct, and affirming schools obligations to address the latter. The letter contained specific suggestions for the Department of Education to consider including in such guidance, including responses like: * investigating all reports of online harassment, whether or not perpetrators are “anonymous”; * initiating campus disciplinary proceedings against individuals engaging in online harassment; * geo-fencing of anonymous social media applications that are used to threaten, intimidate, or harass students; * barring the use of campus wi-fi to view or post to these applications; * prompt reporting of anonymous online threats of physical and sexual violence to police and the social media application, as appropriate; * monitoring social media applications to ensure immediate response to online harassment and intimidation; providing counseling and appropriate accommodations for targets of online harassment and intimidation and others affected by it; and * conducting mandatory training or intervention programs for students, faculty, and staff, including Title IX Coordinators and other appropriate administrators, on the use of these social media applications to engage in harassment and intimidation. I have no basis for predicting whether or not the Department of Education will respond to the advocates suggestion and issue the guidance that they request. But I can say that even in the absence of such guidance, the agency could still take the position that a school or universitys indifference to Yik Yak harassment violates Title IX, which is already defined to require a response to actionable harassment that occurs in cyberspace. So even if the Department does not formally endorse them, schools and universities should consider utilizing recommendations like these in appropriate circumstances. From a compliance standpoint, doing nothing is probably already a risky course of action.
Here is a roundup of some recent judicial decisions in Title IX cases alleging institutional liability for sexual harassment. A cheerleading coachs teasing of a female students "saggy boobs" was inappropriate but not sufficiently severe to constitute sexual harassment within the meaning of Title IX. Nor was the school district deliberately indifferent to the students complaint, as school officials investigated the matter, suspended the coach for two weeks, and reprimanded her. Doe v. Georgetown County Sch. Dist., 2015 WL 5923610 (D.S.C. Oct. 9, 2015). A school district was not liable to a female student for sexual assault by a male student in the same special education program. School officials were not alleged to have notice of any past instances of sexual the male students sexual misconduct, except one incident in which he had asked a female classmate if he could touch her (and did not, apparently, touch her). Even if this incident could be found to have put school officials on notice that he was a sexual threat to other students, school officials did not respond to that incident with deliberate indifference but instead subjected the student to enhanced supervision and separated him from female student he had propositioned. Swanger v. Warrior Run Sch. Dist., 2015 WL 5830068 (M.D. Pa. Sept. 30, 2015). Pervasive bullying that included keying the word "cunt" into a female classmates car, but that otherwise involved no reference to sex or gender, did not constitute harassment "because of sex" for purposes of Title IX. Hankey v. Town of Concord-Carlisle, 2015 WL 5737136 (D. Mass. Sept. 30, 2015). A federal judge in Ohio refused to dismiss a Title IX claim against a vocational college after determining material facts were in dispute that could, if proven, give rise to liability for sexual abuse of a student by a culinary arts instructor. The plaintiff, who claims she was seduced by the instructor into a sexual relationship, alleged that the college had notice of the instructors bad boundaries, including inappropriate comments and touching. However, a trial is warranted to determine precisely how much of the instructors earlier bad behavior had been reported, and, consequently, whether the colleges response -- which included investigating the instructor and subjecting him to some monitoring, but not removing him from the classroom or limiting his contact with students -- was tantamount to indifference. Doe v. Springfield-Clark Career Technology Center, 2015 WL 5729327 (S.D. Ohio Sept. 30, 2015). A university was not deliberately indifferent to a graduate students report of sexual harassment by a professor, having responded to the students complaint by conducting an investigation, changing her work assignment and office location, and supervising future meetings between the student and professor. The student was, however, allowed to continue to litigate her Title VII hostile environment claim, because Title VII does not use a deliberate indifferent standard. The fact that the professor was the students supervisor puts the burden on the university to prove to a jury that they exercised "reasonable care" to prevent/address the harassment and that (by quitting just one week after filing her complaint) the complainant herself unreasonably failed to avail herself of preventive or corrective measures adopted by the university. Jenkins v. University of Minnesota, 2015 WL 5521746 (D. Minn. Sept. 18, 2015).
Weve been carefully tracking the efforts of students who are disciplined for sexual assault to use Title IX and other law to challenge their universitys disciplinary hearing process and result. Here are two more cases to add to the file. In the first case, a male student was expelled from the University of Missouri after a disciplinary hearing found him responsible for "nonconsensual sexual contact" and other violations of the code of conduct. Prior to the hearing, the student fired the attorney he had initially hired to assist him in the process, and the university accommodated his first request to postpone the hearing to allow him to seek a replacement. But the university denied the students second request, made on the day of the hearing, to postpone yet again. The student then opted not to participate in the hearing. The student sued the university, alleging that it had discriminated against him on the basis of sex in violation of Title IX, but the court dismissed this claim after determining he had "unquestionably failed" to allege any facts that suggested gender bias on the part of university officials. His argument appeared to have been that the complainant in his case (and complainants in general), are treated more favorably than he was (and respondents in general). Yet, in addition to vagueness, this argument failed for not being targeted at sex discrimination. As the court noted, "[e]ven if the University treated the female student more favorably than the Plaintiff, during the disciplinary process, the mere fact that Plaintiff is male and [the alleged victim] is female does not suggest that the disparate treatment was because of Plaintiffs sex." Nor is "demonstrating that a university official is biased in favor of the alleged victims of sexual assault claims, and against the alleged perpetrators... the equivalent of demonstrating bias against male students." The court also dismissed the plaintiffs due process claim, noting that the plaintiff "was afforded adequate procedural rights by Defendants by way of notice of the charges, identification of the violations charged, and an opportunity to present his case even though he refused to participate." All other claims in the plaintiffs complaint were similarly dismissed.
In the second case, a male student was accused of rape by a female classmate at Augustana University in South Dakota. The university suspended him while it conducted its investigation and hearing process. The student asked the university to postpone its hearing until the criminal charges he was also facing had been resolved, but the university refused. So the student sued, seeking a preliminary injunction that would force the university to wait to pursue disciplinary action. But last week the federal court in South Dakota refused to grant the injunction after determining that the plaintiff did not have a "likelihood of success on the merits," which is the key inquiry in preliminary injunction cases. The court predicted that his Title IX claims would fail because the plaintiff did not allege an erroneous outcome, as his claims lacked both an "outcome" (because the hearing hasnt happened yet) and specific allegations of gender bias. Like the case discussed above, the court refused to consider arguments about favoritism to complainants as tantamount to discrimination because of sex. And while the plaintiff alleged that the universitys procedures "in practice" only apply to males, the court read this as a disparate impact claim which is not actionable under Title IX. The court also predicted that the plaintiff would lose on the merits of his due process claim, because Augustana University is private and not a state actor, as well as his breach of contract claim. Related to his contract theory, the plaintiff alleged that the university breached its obligation of "good faith and fair dealing" by imposing on him the dilemma that he faces: participate in the disciplinary hearing (and possibly incriminate himself in ways that could be used against him in the criminal matter) or not participate in the disciplinary hearing (and forego the opportunity to defend himself). The court acknowledged the dilemma, but did not find it to be bad faith on the universitys part. As the court has denied the motion for injunction, the plaintiff will now have to choose between participating in the hearing and avoiding the risk of incriminating himself.
Salau v. Denton, 2015 WL 5885641 (W.D. Mo. Oct. 8, 2015). Tsuruta v. Augustana University, 2015 WL 5838602 (D.S.D. Oct. 7, 2015).
Here are some updates in Title IX cases involving sexual harassment in schools: * A federal court ruled that bullying consisting of pulling down another boys pants, one time in front of a girl, was not harassment "because of sex" for purposes of Title IX. Morgan v. Town of Lexington, 2015 WL 5634463 (D. Mass. Sept. 24, 2015). * A principles arguable knowledge of a volunteer teachers "inclination to engage in inappropriate relationships with school-age boys," in combination with the school districts lack of effort to limit the teachers access to its students, precluded summary judgment on Title IX claim. K.S. v. Detroit Public Schools, 2015 WL 5460674 (E.D. Mich. Sept. 16, 2015). * School officials failure to respond to reports of one students sexual abuse of various other students by doing anything other than documenting the incidents and, in one case, moving the victim to another dorm room, could constitute deliberate indifference for purposes of Title IX. BPS v. Colo. Sch. for the Deaf and Blind, 2015 WL 5444341 (D. Colo. Sept. 16, 2015). * Dispute as to whether or not parent had told school officials about sexual misconduct by an adult male special needs student precluded dismissal on summary judgment. Kauhako v. State of Hawaii Bd. of Educ., 2015 WL 5312359 (D. Ha. Sept. 9, 2015). * School districts decision to defer to police departments investigation was not deliberately indifferent, where it continued to prevent the perpetrators from returning to school and took other steps to measure and address safety. Doe v. Bibb County Bd. of Educ., 2015 WL 5063746 (M.D. Ga. Aug. 27, 2015). * A school cannot be liable under Title IX for a teachers sexual advances on a student, where school officials acted swiftly and decisively to force the teachers resignation upon learning of his misconduct. Doe v. Crown Point Sch. Corp., 2105 WL 5038093 (N.D. Ind. Aug. 26, 2015). * Title IX claim alleging school districts failure to respond to bullying directed at the plaintiff because of his "effeminate mannerisms and way of speaking" adequately alleged discrimination on the basis of sex. J.R. v. N.Y. City Bd. of Educ., 2015 WL 5007918 (E.D.N.Y. Aug. 23, 2015).
The Kansas Court of Appeals recently affirmed the decision of a lower court to dismiss a lawsuit by a student disciplined for sexual harassment and other offenseses, but in so doing, side-stepped the contentious questions about Title IXs applicability to off-campus conduct and its conflict with freedom of speech. In 2013, the University of Kansas expelled Navid Yeasin for threatening and harassing a female classmate he had been dating, who is referred to in the case as "W." Yeasin and W. had had an altercation off-campus over what Yeasin perceived as Ws infidelity. Following this incident, Yeasin used Twitter to post what seem to be reasonably interpreted as harassing and threatening tweets directed at W. After a disciplinary hearing, Yeasin was expelled for the off-campus altercation as well as the tweets, the latter of which violated the Universitys no-contact order and were found by the hearing panel to constitute sexual harassment: unwelcome and sufficiently severe to have interfered with Ws educational opportunities. Yeasin sued the university, arguing that the university did not have the authority under Title IX to discipline him for off-campus conduct or for constitutionally protected speech. The lower court, as well as the Court of Appeals, granted relief to Yeasin, but on narrow grounds. The universitys sexual harassment policy by its terms only applied to conduct that occurs on campus or at university-sponsored events. For this reason, the university had no authority to expel Yeasin. The court did not reach the question of whether Title IX permits a university to discipline a student for off-campus conduct or whether Yeasins tweets were protected by the First Amendment. The take-away from this decision is therefore a narrow one: a universitys authority to discipline a student for off-campus conduct starts with a clear and valid policy that asserts such jurisdiction. If Title IX or the Constitution provide outer limits to a universitys authority in this regard, those limits can only be tested in a case where a university disciplines a student for off-campus conduct in reliance on its clear and valid policy. Decision: Yeasin v. University of Kansas, 2015 WL 561617 (Kan. Ct. App. Sept. 25, 2015).
In a move that everyone knew was coming, three former coaches at the University of Minnesota-Duluth have filed a lawsuit against the university alleging discrimination on seven different counts including gender and sexual orientation. Shannon Miller (hockey), Jen Banford (softball, hockey relations), and Annette Wiles (basketball) have worked together on the lawsuit, which was precipitated by events that began almost a year ago when Millers contract was not renewed because the university claimed it could no longer afford her. She was, at the time, the highest paid womens hockey coach, but notably paid less the UMDs mens coach. All three women are gay and the lawsuit alleges that their openness about their sexuality was a key factor in the discrimination they faced. We have not heard about specific incidents of discrimination, rather the coverage has focused on contracts and the timeline of events that lead to the dismissal and/or resignation of each woman. But I suspect more stories that corroborate the womens claims will be made public as the legal challenges proceed. Miller, for example, recounted to the press today that she came to work one day and found that the name tag on her office door had been removed and replaced with the word dyke. She took it down and reported it. The name tag was never replaced and the incident never investigated. She also received anonymous hate mail on department letterhead. The UMD chancellor has said that--although he has not yet looked over the lawsuit--he is sure that the claims of discrimination against the university will be proven false but that "we can always get better" on diversity issues. Millers story certainly exemplifies the need to do better and also suggests that the chancellors comments about no discrimination taking place may be a little overconfident at this point. The lawsuit is against UMD but it cites athletic director Josh Berlo extensively. Berlo remains the athletic director and the university continues to support him. Miller cites his arrival at UMD in 2013 as a turning point in the culture of the department: "Its language; its how they treat you in meetings; its how they dont meet with you; how they react when you take something forward to them, a complaint. So there was a shift, and it was a really strong shift, and its the most abrupt and rude treatment Ive ever received in my entire life as a professional." I find this indictment of Berlo interesting in light of a recent article in the _Harvard Business Review_ titled "Why do so many incompetent men become leaders?" It is certainly relevant to the issue of female coaches and female athletic department administrators, as noted by friend-of-the-blog and activist Pat Griffin. According to one of the coaches lawyers--Dan Siegel, who was counsel on the Fresno State cases in which dismissed female coaches won millions in their discrimination lawsuits--the university has not engaged in any conversation about settlement. Right now this appears to be a "digging their heels in" case. Though this case, according to Siegel, is less complicated than the Fresno cases in terms of evidence proving discrimination. It is also notable that both schools are state universities. This means that the burden of either a settlement or award in favor of the plaintiffs will be born by the taxpayers--in one way or another. I had truly thought that Fresno State would serve as cautionary tale for other institutions. UMD though appears to be on the path to becoming the new (old) Fresno State.
The headlines this week in the realm off college sexual assault have been about the UVA resolution and the new survey about the rate of sexual assault on campuses. Regarding the latter, the ones I have seen have looked like this: "1 in 4 college women report being sexually assaulted." I dislike headlines like this because they are what people remember. They are easy. And they are easy to refute by those who wish to diminish the severity of this problem and/or blame the victims. Because headlines like this are never truly accurate. Because what sound study can be summed up with one statistic? There are always limitations. This, I realize, is a disconnect between the interests of the media and the interests of researchers and research institutions. It is not likely to change. Headlines will not become more nuanced and reflective of actual findings. I proceed regardless. I proceed in part because the last studys one remembered statistic is still with us: 1 in 5. It is used in endless articles about the topic, documentaries, conversations among advocates, policymakers, and in political speeches. And again, those who wish to refute those numbers can do so because the study was not perfect. It was small. It surveyed students at 2 universities--large universities, but two--in different geographic regions. It was a web-based survey which yielded a low response rate. It was typical of web surveys but low in comparison to other data collection methods. But the published study says that the results are not generalizable to other universities. One of the researchers, as recently as last year, has said to the media that the 1 in 5 statistic is being used out of context. It has not been recognized for what it was: a foundation. A request for more information. A call for additional research. It was not an ideal study. No study is. But headlines do not say that and neither do--usually--paragraphs one through three. The asterisks come later in these reports. So now we have a new study. The Association of American Universities commissioned a study to look at rates of sexual assault at its member schools. This is where the new 1 in 4 statistic comes from. Here are the asterisks: * Small sample, low response rate. Only 26 schools participated. The response rate was less than 20%. The report speaks to non-response bias and suggests that the 1 in 4 could be over inflated because those who experienced or were affected by sexual assault could be more likely to fill out a survey about it. * Definition of sexual assault. As the articles did get to, the definition used by the survey was "broad." That means comparisons among other studies that do not use the same definition or among individual schools may not be possible. (More on why the so-called broad definition is a good thing below.) Here is what I take from the study: * The broad definition is good because it accounts for a range of behaviors and actions, which is important to people who have experienced sexual assault. The hierarchy that is created among different acts and between sexual assault and harassment is unproductive and arguably damaging. With the prevalent belief that being penetrated by a penis is the only definition of sexual assault, some victims are left wondering whether digital penetration or forced oral sex counts or that they should get over it because "it could have been worse." Additionally, the study reported the numbers from different categories of assault. The 1 in 4 is inclusive; but that number is broken down in the report. * The concern by some students that the study was too explicit in its description of sexual assault is connected to the confusion I speak of above regarding the question of "what counts." It is also concerning because it speaks to how difficult it is to actually talk about and describe what happens in actual sexual assault. And if people find that difficult to do in an anonymous survey....There are clearly implications here about the difficulties of reporting and the need for really good training for those who are handling reports provided by victims. Before I write what I am going to write, I want to acknowledge that this study is a good thing in that it attempts to discover patterns about what is happening on campuses. There has been critique that the schools that participated do not have to release the findings particular to their campuses. (Some of them have and will.) But the goal of the AAU study was not to condemn or humiliate individual schools, it was to discover the proverbial bigger picture. School themselves should be going beyond quantitative surveys with low response rates and response bias. They should always be in the process of assessing the campus climate. That being said: does it matter that this number is different from the long-reported 1 in 5? If you told a young woman that she had a 20% chance of being sexually assaulted versus a 25% chance would it make that much of a difference to her? To her parents? 1 in 4 versus 1 in 5. It is not more or less of an epidemic. It is does not (or should not) provide more justification for training programs in bystander intervention. Perhaps it matters in the way 1 in 5 mattered: to politicians and activists who cite it as a call to action. Maybe if it matters if 1 in 4 means Congress will appropriate more money to hiring OCR staff or if foundations earmark more money for studies of college sexual assault. But I would imagine that every congressional hearing or meeting where this new study and statistic is cited, there will be opponents who say that the number of wrong, the study problematic. And that is what I fear. Because that takes attention away from the likely reality for that one woman, in a group of 4 (or 5 or maybe even 6!) of her female peers, who will--statistically speaking--will be sexually assaulted during her time on campus.
On Monday the Department of Educations Office for Civil Rights announced a resolution agreement with the University of Virginia, which had been under investigation for alleged violations of Title IX arising from the universitys response to sexual harassment and sexual violence on campus. OCR determined that during the 2011-12 academic year, UVA had a "mixed record" -- sometimes handling cases adequately and other times failing to respond in the prompt and equitable manner required by law. For example, in one case, the university took nine months to hold a hearing on a reported sexual assault, a delay that included five months between the completion of the investigators report and the scheduled hearing date. In that same case, the university was also faulted for failing to look at other responses (besides a disciplinary hearing) that may have been warranted by the situation. In another case, the university did not give the complainant adequate opportunity to defend charges contained in a cross-claim filed by the accused. OCRs investigation also revealed that in situations where the complainant requested confidentiality or otherwise refused to participate in a disciplinary hearing, the university dropped the matter entirely rather than seeking to ascertain whether other responses might be appropriate in light of the universitys obligation to protect all students. In cases where the university had knowledge of a possible assault occurring in the context of a fraternity, it failed to investigate, it said, because the alleged victim did not wish to file a complaint. Yet, the university could have still investigated the matter and considered other remedies besides those, like a disciplinary action, that require the complainants participation. Additionally, OCR found deficiencies in the universitys handling of sexual harassment complaints filed against faculty members, which tended to be only minimally investigated and not well coordinated with the academic departments. OCR noted, however, that the sexual assault policy UVA adopted earlier this year is the first one that the agency has found to fully comply with the Title IX since the 2014 guidelines were issued. As such, the university is not obligated to make policy changes going forward. However, it has agreed to go back and look at cases decided under the old policy in other recent years to see whether they were handled properly. For any handled improperly, the university should provide "appropriate remedies that may still be available to the complainants .. and remedies that may be necessary to address the climate of the larger university community." The university also agreed to provide OCR with documentation of its response to sexual harassment and sexual violence complaints for the next two years.
A federal court in Illinois recently gave two reasons for dismissing Professor Peter Ludlows Title IX claims against Northwestern University, arising from its decision to investigate charges by a graduate student that Ludlow had had nonconsensual sex with her during a period of time in which they were dating (the courts characterization). First, the court determined that Ludlow was actually challenging an adverse employment action, and, as such, his Title IX claim was preempted by Title VII, the federal employment discrimination statute. The issue of Title VII preemption is not handled consistently by the courts, but there is precedent in the Seventh Circuit -- binding on the federal courts in Illinois -- that withholds Title IX remedies in cases where employees allege sex discrimination by their employer, reasoning that Congress intended the mechanisms of Title VII enforcement (which include first seeking relief from the EEOC) to apply instead. Second, the court reasoned that even if the Title IX claims were not preempted, Ludlow had not alleged facts that suggest that the universitys response in investigating the graduate students claim had anything to do with his male sex, but instead, because the charge against him was rape. As the court put it, "That Ludlow is male is a conclusion without any link to the investigation itself and his statement that Northwestern needed to believe the victim does not sustain the inference that Northwestern took the genders of the victim and accused into account." Nor could Ludlow sustain a sex discrimination claim by arguing that men are more often burdened rather than helped by victim-friendly procedures, since there is no private right of action for disparate impact claims under Title IX. In this way the courts decision is very similar to the majority of Title IX decisions in disciplined-student cases, such as the case against Columbia which is cited a number of times in the opinion.
After dismissing Ludlows Title IX claim, the federal court determined that it had no basis for exercising supplemental jurisdiction over his state law claims, and subsequently dismissed those as well. Ludlow v. Northwestern Univ., 2015 WL 5116867 (N.D. Ill. Aug. 28, 2015).
Today the Department of Educations Office for Civil Rights released the findings and conclusions of its investigation into two students complaints that Michigan State University mishandled their complaints of sexual assault and related harassment and retaliation. OCR determined that deficiencies in Michigan States grievance procedure violated Title IX, as did its failure to notify students of the identity and role its Title IX Coordinator. Specifically, OCR found that even though it had notice of the alleged assault on the first student, Michigan State waited weeks before commencing an investigation because its policies at the time did not permit the university to go forward until the alleged victim filed a formal complaint. OCR determined that once the University initiated the investigation, it provided a thorough, impartial and equitable response. In the second students case, it took the University a year from the time of report to resolve the matter, a time frame that OCR determined did not satisfy the requirement for a "prompt" resolution. In addition to reviewing the two complainants cases, OCR also review three years worth of files documenting the universitys response to sexual harassment and assault. There it found more instances of delayed resolution, as well as possible failure on the universitys part to notify the complainants of the final outcomes in their cases and their rights to appeal. In one file, OCR made the "troubling" finding that the University waited until multiple sexual harassment complaints were filed to take action against a counselor who was reported to have harassed students who were seeking support for having been sexually assaulted. In another case, the University wrongly dismissed a claim of co-worker sexual harassment because it was not sufficiently severe, despite having found credible the complaining employees description of how the harassment had negatively affected the work environment. There were other, similar examples of the Universitys inadequate handling of employee harassment. In response to OCRs findings, Michigan State has agreed to a number of corrective measures, including revising inadequate policies, improving notice of the Title IX Coordinator, improving staff training as well as training for students and student-athletes in particular, developing a Memorandum of Understanding with local law enforcement, and offering to address any harm students who reported sexual harassment or assault incurred as a result of the universitys delay in processing their complaints.
Two male students who were suspended from Salisbury University in Maryland can continue to litigate their claim that the universitys flawed disciplinary process was the product of gender bias. A federal court denied the universitys motion to dismiss this claim, which means the plaintiffs allegations would be sufficient to constitution a violation of Title IX in the event they are eventually proven true. In "erroneous outcome" cases like this one, that means the plaintiff must first allege procedural flaws that call the disciplinary outcome into question. Second, the plaintiff must allege specific examples of gender bias that could plausibly have provided the motivation for the flawed proceeding. The plaintiffs complaint in this case alleged a number of procedural flaws including: * that they were denied the opportunity to ask "critical questions" of the witnesses * that the university withheld from them the witness statements, witness lists, and other evidence that they had the right to review before the hearing * that they were denied the right to have their attorney present even though university policy affords them this right * and that the investigators improperly influenced the disciplinary board in the way their presented their findings and conclusions The court found these allegations sufficient of the first requirement. The court also found that the plaintiffs complaint contained the requisite allegations of gender bias, though it was a "close call." Some of the plaintiffs bias allegation was based on the universitys effort to raise awareness about the problem of sexual assault on campus. The court dismissed the idea that such bias could be inferred from program announcements presented in a "gender-neutral tone, addressed to all students, and published to improve campus safety for both men and women." Similarly, funding a sexual assault prevention program with a grant from the Avon Fund for Women did not evidence bias, because the program was advertised "for all students." However, the plaintiffs also alleged that "on information and belief" the university possesses communication evidencing its intent to impress the Department of Education by railroading male students accused of sexual assault. I was surprised that the court accepted this vague of allegation of bias as sufficient, but it did. The court admitted that a general allegation of bias would not have been sufficient. Allowing plaintiffs to proceed on an allegation like "we believe you have evidence of bias in writing" seems like a pleading tactic that would work any time a plaintiff does not have anything on which to base a specific allegation of bias, and thus operate as an end run around the requirement that allegations be specific in the first place. In sum, the court rejected the claim that the universitys sexual assault awareness programs supported the inference sex discrimination (which is probably reassuring for universities running similar programs). But it did permit plaintiffs to seek to "uncover discoverable and admissible evidence that Plaintiffs gender was a motivating factor behind SUs allegedly flawed disciplinary procedures and wrongful conclusions." As a practical matter, Salisbury University will have to respond to the plaintiffs requests for information, records, and depositions. If no evidence to support bias turns up, the university can later move for summary judgment.
Doe v. Salisbury Univ., 2015 WL 5005811 (D. Md. Aug. 21, 2015).
The new school year often brings some Title IX news. Stories that address what a girl versus a boy is allowed to wear for yearbook photos or whether the womens cross-country roster is being padded with runners from winter/spring track have made the back-to-school news in the past. This summer has not exactly been slow in the Title IX world. Court cases against various schools being brought by those who feel schools did not do enough and those who felt schools went too far continue to move through legal proceedings. (See Erins post from last week.) This is one the first back-to-school smh-es I have seen. And it is very bad. This morning it was local news; this afternoon national media picked it up. An off-campus house at Old Dominion University where some members of the Sigma Nu fraternity live, had banners hanging from the windows this weekend "welcoming" female first years--and their parents--with threats of sexual assault. Rivaling a Yale fraternitys chants of "no means yes, yes means anal" from several years back, the banners, only slightly more subtle, read: "Rowdy and fun. Hope your baby girl is ready for a good time"; "Freshman daughter drop off (with an arrow pointing to the front door)"; and "Go ahead and drop off mom too..." The outrage and condemnation was swift with the president and other university officials speaking out over the weekend against the now-removed banners. But it was not until today that Sigma Nu was suspended the university, a move that was supported by the fraternitys national organization, who said that it does indeed appear that members of the fraternity participated in the banner making and that those men will be dealt with by the organization. This incident certainly adds to recent discussions about the role and current manifestations of sororities and fraternities on campuses. More narrowly, and more to what we think about here, it speaks to the culture that exists on campus. ODU is NOT on the list of schools being investigated by OCR and there is no Title IX lawsuit against them. This does not mean that is all is well at the university. Last spring, a local news station spent considerable effort investigating the case of an ODU student who was raped on campus (not by an enrolled student). She contends, and evidence confirms, that the university was slow to respond to her requests--like to change housing, which they did after a month though they charged her more for her new housing--and offered very little support. Her scholarship was yanked when her grades fell in the aftermath of the rape, when she was suffering from PTSD. She did not file a complaint, as I noted, but if she had...well, things like fraternity members making public assertions about the role they think female students should play might make it into the report. In other words, though ODU may have dealt with that rape and this current situation, they need to treat these not as isolated incidents but as part of a culture marked by misogyny.
In two recent judicial decisions, courts refused to grant universitys motions to dismiss Title IX cases in which the plaintiff alleged that the university did not adequately respond to his or her report of sexual harassment or assault. * In the first case, a federal court in Illinois allowed a male medical student to continue to litigate his case against Northwestern University, in which he alleges that the university did not adequately respond to his report of sexual harassment by a male professor. The professor, the plaintiff alleges, made suggestive comments and retaliated against the plaintiff in various ways for refusing his sexual advances. The court agreed that the allegations in the plaintiffs complaint satisfy the legal standard for liability under Title IX, and thus cannot be dismissed without continued litigation. The plaintiff alleges a sexist double standard in Northwesterns policy of not investigating reports of incidents that were two years old, the time frame that lapsed between the professors misconduct and the plaintiffs report to the universitys sexual harassment office. Because the plaintiffs complaint included an example of a female complainants case that was investigated even though the harassment was similarly out of date, it could, if proven, subject Northwestern to liability under Title IX. The court also denied the universitys motion to dismiss the plaintiffs retaliation claim, in which he alleged that the university continued to take adverse action against him after and because of his reporting of the professors harassment. Yap v. Northwestern Univ., 2015 WL 4692492 (N.D. Ill. Aug. 6, 2015). * Similarly, a federal court in Florida denied Florida States motion to dismiss the Title IX case filed by Erica Kinsman, who alleges that the university did not adequately respond to knowledge of her report that quarterback Jameis Winston raped her in 2012. Though FSU disputes the allegations in the complaint, the judge ruled that it is possible that a jury could find truth in Kinsmans claims that appropriate university officials had actual notice of Kinsmans report by January of 2013, and that they did not initiate an investigation for eleven months, which would satisfy the standard of institutional liability under Title IX. The judge set a trial date for July of 2016, though it is possible of course that the case could settle before then, or that FSU could file and prevail on a motion for summary judgment after the discovery phase which allows the parties to gather evidence. Also, there were developments in three disciplined-student cases worth noting. * A federal court in Virginia denied Washington and Lee Universitys motion to dismiss a male students claim that the university violated Title IX when it expelled him for sexual assault. The court agreed that the plaintiffs complaint contained sufficient allegations that would, if proven, constitute a violation of Title IX under the "erroneous outcome" framework. At this early stage of litigation, a plaintiff in an erroneous outcome case must (1) cast doubt on the accuracy of the universitys finding against him; and (2) allege specific facts that can establish gender bias as a motive. Here, the plaintiff alleged numerous procedural violations that resulted in evidence favorable to him being excluded from the disciplinary panels consideration. He also alleged that gender bias could be attributed to the Title IX officer who presented the case against him, as evidenced by her public endorsement of the idea that "sexual assault occurs whenever a woman has consensual sex with a man and regrets it because she had internal reservations that she did not outwardly express." Because the plaintiffs case "parallels of the situation it describes and the circumstances under which Plaintiff was found responsible for sexual misconduct" and because the Title IX officer wielded "considerable influence" in the proceedings, it is possible, the judge reasoned, for a jury to find evidence of gender bias. This is a rare outcome in that disciplined-students Title IX claims do not usually survive the universitys motion to dismiss -- usually because of insufficient allegations of gender bias. Doe v. Washington and Lee Univ., 2015 WL 4647996 (W.D. Va. Aug. 5, 2015).
* And, a state court judge in Tennessee reversed a decision by the University of Tennessee at Chattanooga to expel a male student and wrestler Corey Mock for sexual assault. In that case, a female student reported to the university that Mock had had sex with her while she was unconscious. A disciplinary panel initially determined that there was not enough evidence to find Mock responsible, but this decision was overturned on an appeal within the university. The court took issue with the universitys ultimate decision, which it interpreted as requiring Mock to prove he had obtained consent rather than requiring the complainant to prove he hadnt. Though the courts decision was based on state administrative law, not Title IX, the outcome is consistent with what is required of universities under Title IX. Even though a complainant does not have to have overwhelming evidence (only a preponderance) that consent did not occur, it is still the complainants burden to prove that consent did not occur. * A superior court judge in Los Angeles reinstated plaintiff Bryce Dixon to the University of Southern California while his case against the university is pending. Dixon, a football player, is challenging the universitys decision to expel him for sexual assault stemming from a sexual encounter with a female trainer that he claims was preceded by implied consent, though a university disciplinary panel found otherwise.
In 2013, we blogged about a district court decision that a school district in Alabama could not be liable under Title IX for its participation in a teachers aids plan to use an eighth grade girl as, essentially, bait to catch a habitually-offending male student "in the act" of soliciting female classmates for sex. The plan called for the female student to agree to the male students proposal to meet in the bathroom, where officials would intervene before any sexual assault occurred. However, no timely intervention occurred and the female student was raped. We noted with alarm the district courts exceedingly narrow application of the deliberate indifference standard, since there was a genuine factual dispute that the assistant principle was aware that a female student was under a serious threat of sexual assault and did nothing to stop it. Thankfully, this decision has been reversed on appeal. Last week, the Eleventh Circuit Court of Appeals ruled that there was enough evidence to warrant a trial on the crucial elements for institutional liability, i.e., actual notice and deliberate indifference. There were enough facts in evidence that a jury could potentially find that shool district officials had actual notice of the threat posed by male student. Namely, the school board admitted that officials knew of reports that the male student had harassed and assaulted other female students in past, and while it was disputed whether the Assistant Principle knew about the sting operation in progress, a jury could potentially find that this was so. The court also thought there was enough evidence that a reasonable jury could find that school officials were deliberately indifferent -- both to the threat of rape and in their response to the rape after it occurred. Not only was deliberate indifference suggested by officials failure to intervene in the sting operation, but also, the court noted, its inadequate teacher training on sexual harassment, its ineffective disciplinary policies and record keeping practices, and the fact that the rapist himself was sometimes unsupervised during his in-school suspension, and the principals failure to revise any policies after the rape had occurred. The plaintiffs Title IX claim will be allowed to proceed to trial. The court also reinstated the plaintiffs constitutional claims against the principal, assistant principal, and teachers aid as individuals. For some other commentary about the case see here. For a copy of the decision, see here, or: Hill v. Cundiff, 2015 WL 4747047 (11th Cir. Aug. 12, 2015)
The woman who filed a Title IX lawsuit against the University of Oregon, including basketball coach Dana Altman, has dropped the lawsuit as part of an $800,000 settlement. The student, who will also receive a waiver of her tuition and fees to finish her education at the university, believed that the coach knew that at least one of the players who allegedly assaulted her had been kicked off the basketball team at Providence College for participation in a gang rape. We have written about the Oregon case, especially in light of the larger issue of a schools responsibility for and awareness of past incidents when accepting transfer student athletes. Brandon Austin--the player from Providence--is now playing for a junior college in Florida. We were very interested to see what would happen in this case, whether some kind of precedent would be sent or warning issued about accepting student athletes with records of violent and criminal behavior. The settlement has less ability to do so because all parties are expected to appear with pseudo smiles on their faces and some words about respect for the system, or--at worst--say nothing at all. There is a similar case in Oklahoma where a University of Tulsa student has filed a Title IX lawsuit against the school after alleging she was raped by a basketball player who should have never been allowed on campus, she states, due to his charges of sexual assault at a previous institution; so perhaps we will see something different happen there. What to take from this settlement? My initial thoughts center around the following: thats a lot of money, but it is unlikely that significant change will be effected. As I said in a previous post (linked above) whether the womans legal team would have been able to prove that Oregon and/or Altman knew of Austins past allegations is something only a trial would have shown. I know that trials can be difficult in these cases, but a trial may have increased the discourse about the transfer process for student athletes that focuses not on when they can play (i.e., eligibility) but on whether they should play or be granted admission to the school. A trial had the potential to raise awareness of this issue. The question, of course, is at what cost to the alleged victim. Maybe it would have put pressure on the Pac-12 to pass a policy similar to the SECs which bans the acceptance of transfer athletes with past incidents of domestic violence and assault. (Yes, I have noted that these policies will only work when there is greater transparency in the transfer process itself. Still, it signals an acknowledgement of the issue.) Good news to take from this case: according to the womans own statement (which admittedly is influenced by the settlement and the fact that this is over and the agreement that the parties not "disparage" each other), she received support from the university community--in addition to outside groups and individuals. This is very different from the situation at Florida State where Jameis Winstons alleged victim was targeted and driven off campus when her allegations against the now NFL quarterback became known. It is arguably a low bar we have set when praise goes out to a university community for not further harming a victim by ostracizing and doubting her. Still, she clearly feels comfortable remaining at UO and that is a good thing. The not-so-good: The feeling that the $800,000 settlement is pay off. Insurance, according to one source, will pay for the settlement, which again is quite large which again suggests that someone knew something but what that is, we will never know. The settlement is not technically confidential, but details of the case do not appear to be forthcoming. Also, the reforms the university have agreed to are quite frankly weak. They have made a very concerted effort to demonstrate Title IX compliance by hiring many new staff members with more hires on the way. The proposed reforms to the student-athlete transfer process, though, are a little concerning. The university plans to ask students if they have a "disciplinary record" at their former schools. Anyone who says yes must agree to sign a waiver giving UO access to those records if the student wants to be considered for admission. It is unclear what would prevent a student from lying given that student records are subject to pretty strict privacy laws. Also, given that most coaches do not want to know these things, I do not see this as being at all effective. (Happy to be proven wrong, though.) Will there be some kind of I-have-to-ask-but-please-dont-tell-me culture established? Would this provide coaches and the school some kind of immunity? "Well I asked and he told me there was nothing, so what was I supposed to do?" I do not see this kind of standard holding up in court. The school has a much greater responsibility to vet student athletes. They do it when it comes to stats and successes and skills, so its time to extend that research and really prove, as the current president said in relation to this case that "the important thing is we’re not a school of athletes and students. We’re a school of students. Everybody needs to be part of this effort." Going back to student privacy, another unresolved issue from this case is the gathering of the victims counseling center records by university-hired lawyers. It is possible that that privacy violation was part of the reason for the large settlement. This is something else the university will need to address as it continues to revise its policies and procedures in cases of sexual assault and harassment. Eyes will probably be off Oregon now that this case has settled, unless additional details that explain the settlement are revealed. The case in Tulsa, as I mentioned, has the same potential to contribute to a larger discussion of student-athlete behavior and the terms and conditions of the transfer process.
In the spirit of sharing helpful resources, this new video created by the gender equity team at Legal Aid Society-Employment Law Center is aimed at students and helps them understand Title IXs application to K-12 athletic programs. It also helps them understand their rights under Californias Fair Play in Community Sports Act, which applies to municipal athletic programs that are outside the scope of Title IX. For more on LAS-ELCs "Fair Play" initiative, see here.
A federal court in North Carolina is open to the possibility that Appalachian State University denied a male student procedural and substantive fairness by suspending him for 20 days for sexual assault before the hearing panel ultimately exonerating him on appeal. However, this does not constitute a violation of Title IX, the court ruled, because there is no allegation to support the claim that the university was biased against him because of sex. In granting the universitys motion to dismiss the plaintiffs Title IX claim, the court rejected the plaintiffs reliance on Yusef v. Vassar College, a 1994 decision and one of the only examples of a disciplined-students Title IX claim surviving a motion to dismiss. In that case, the plaintiff alleged that male students were "historically and systematically" found guilty when accused of rape, and the court found this allegation of bias sufficient. But the court ruled that similar allegations do not satisfy todays higher standard for more specific pleading, which was imposed by two Supreme Court cases, Twombly and Iqbal, in 2007 and 2009, respectively. In so doing, this court joins a long list of other courts who have rejected Title IXs applicability to disciplined-student cases. That said, the court was open to the plaintiffs arguments about procedural and substantive fairness as protected by the Constitutions due process clause. Namely, the court acknowledged that the universitys decision to hold a second hearing in the sexual harassment matter after the first hearing panel found him not responsible violated his right to procedural due process, as did the fact that he was provided less than 24 hours notice that a sexual harassment charge had been added to the hearing as well. The plaintiff will be allowed to continue to litigate these claims, as well as his claim that the "arbitrary" decision of a university official to overturn an initial hearing panels decision in his favor without any basis for doing so, was substantively unfair. (For the record, many of the plaintiffs other arguments about procedural fairness were in fact dismissed, including: the fact that he had a graduate student represent him while the complainant had a lawyer, the fact that the university did not tell him about potential witnesses that could have helped his case, the fact that the university excluded a potential witness who would have testified about the complainants sexual history, the fact that the hearing panel included a member who had found against his co-respondent in a prior matter, and the fact that no one informed him of his right to have a separate hearing from that of his co-respondent.) Decision: Tanyi v. Appalachian State University, 2015 WL 4478853 (W.D.N.C. July 22, 2015).