- DeVos Won't Commit to Enforcing Title IX
- Catching up: Stanford
- Catching up: Minnesota football attempts boycott
- Elmira Resolution Announced Today
- And Princeton makes...
- An end to the Winston saga
- On suspending seasons
- A Roundup of Disciplined-Student Cases
- Sex-Segregated Elementary School Violate Title IX, OCR Says
- UCSD Successfully Appeals Student Discipline Case
- New Secretary of Education Announced
- University of Maryland's Title IX Fee
- Supreme Court Grants Cert in Title IX Transgender Bathroom Case
- Title IX Used to Challenge Anti-Gay Utah Law
- Illinois Parents Fail to Block Transgender Student's Use of Locker Room; Judge in Texas Reaffirms Nationwide Injunction Against OCR's Transgender Guidance
- OCR Says Wesley College Violated Rights of Student Accused of Sexual Misconduct
- Disciplined Student Prevails Against Brown on Breach of Contract Claim
- Throwback Thursday, aka Updates
- Coach Wins $3.35 Million Jury Verdict for Retaliation
- Another Court Requires School to Accommodate Transgender Student's Bathroom Use
- Title IX Retaliation Case Heads to Jury
- High School Must Permit Transgender Student's Use of Boys' Bathroom While Litigation Proceeds
- UNH's Million Dollar Scoreboard
- Frostburg State Agrees to Title IX Compliance
This week, the Senate Committee on Health, Education, Labor, and Pensions held a hearing on Betsy DeVoss nomination to be the next Secretary of Education. Until this point, DeVos has not made any public statements on Title IX, so the best we have been able to do is speculate on her view of how the law should be interpreted and enforced. For example, it seems reasonable to predict that she will scale back enforcement of the statutes application to LGBT students, based on her past, extensive financial support for anti-gay and religious causes. Though we anticipated that a confirmation hearing might shed some light on the nominees additional plans for the Department of Education and Title IX, DeVos provided few concrete responses to questions by committee members. Regarding Title IX in particular, DeVos said it would be "premature" to commit to enforcing sexual assault statutes like Title IX and Campus SaVE, in response to questioning by Senator Casey (D-Pa.). She also denied that she had promised Republican Senators that she had plans to "reign in" the OCR. On other issues, she was similarly cagey, such as when she refused to commit to Senator Warren (D-Ma.) that she would enforce existing regulations that protect students at for-profit institutions from fraud, or when she declined to reassure Senator Murray (D-Wa.) that she not was planning to dismantle public education. In fact, the only of DeVoss positions that is clear is her support for "school choice" which many see as a euphemism for privatization, and for which she and her advocacy have come under fire in her home state of Michigan. She also dodged questions -- about guns, and about services for students with disabilities -- by invoking the mantra of "best left to the states to decide" (though she eventually relented that the Individuals with Disabilities in Education Act is in fact federal law.) Though one Republican, Senator Murkowski of Alaska, pushed back somewhat on DeVoss school choice ambitions -- asking that her commitment to traditional public education was as “strong and robust” as her passion for school choice -- it is evident that DeVos has the support of the Senate majority, and will likely be confirmed next week.
In Pennsylvania, the hazing case against football players participating in No Gay Thursdays has been settled. Three seniors, accused of harassing/hazing a first-year player, plead guilty to summary harassment. There were discrepancies between what was originally reported (penetration with a broomstick handle) and what was presented during the hearings (pushing a broomstick handle against the victims leg while they held him down). How the seniors were punished remains unknown. Summary harassment is a citation, not a criminal offense. As a reminder, No Gay Thursday had been a team tradition for several years. The football coach was initially suspended and then resigned. The remaining football staff was fired; though they were told they could reapply for their jobs. While the actions initially reported seem to have been wrong, the day itself and the culture that created it was still present and threatening. There is a Title IX complaint against Liberty University from a non-student who said she was sexually assaulted by a university employee in 2015. The university, which refused to fire the employee after their own investigation into the accusation, said it expects the complaint to be dismissed. But if I was OCR, I would take the opportunity to go to Liberty and find out what is happening with their brand new athletics director. In November, Liberty hired Ian McGraw, the former Baylor AD who is facing a lawsuit from a Baylor student who accuses him of knowing that former football player Tevin Elliot had a history of sexually assault and displayed deliberate indifference, which led to Elliot assaulting her. Basically, McGraw was part of the Baylor house that got cleaned out when all these things--including additional assaults by athletes and non-athletes, and more deliberate indifference among various campus offices--came to light. Liberty president Jerry Falwell, Jr. is very enthusiastic about his choice: “You look at what Baylor was able to do during his tenure, it fits perfectly with where we see our sports programs going. This is an exciting time for us.” He also presented McGraws exit from Baylor as a choice. I have written frequently about how athletes who commit physical and sexual assaults are often passed around athletics programs by coaches and admins who willfully ignore the issues. I did not think McGraw would be hired so quickly and by another ultra conservative Christian institution. Liberty has set itself up for problems should anything happen under McGraws tenure. And its moral failings are very much in display with this move. Some in the Liberty community are not happy. Though no students would speak to ESPNW on the record for fear of retaliation. the majority were displeased with the hire and the repentance narrative the school is employing in support of the hiring. Several alum have spoken out, including some who said they would stop donating to the school while McGraw is there. More on the Baylor swept asides: former coach Art Briles is suing three Baylor regents and one university administrator for libel, slander, and conspiracy. In the lawsuit, Briles claims that the four have made false statements about him in the press. These comments have prevented him from getting another head coaching job, he claims. Not sure how this lawsuit affects the very large settlement Briles received. As part of that deal, Briles was told he could not discuss the cases nor criticize the regents. That was in June. Sometimes there are time limits on such terms; but less than a year seems to be a bit short. Meanwhile, Briles could hit up his old boss for a job. Neither McGraw nor Liberty seem to care all that much about accusations, about character, or the safety of their student body.
The infamous case of Brock Turner, former Stanford student athlete who sexually assaulted a woman, was found guilty and served 3 months for the crime, apparently has taught Stanford University very little. The mindset of administrators is similar to that of the judge who sentenced Turner--who raped an unconscious woman behind a dumpster and then left her there. There is a fear of ruining the lives of the men who commit these crimes. Consequently, some of them are still on campus and the university is facing lawsuits and complaints about how it handles sexual assault. [Interesting bit of information: most of the complaints pending against Stanford were ongoing at the time of the Turner case--something we did not hear much about in the coverage of that case. ] Stanford currently is piloting a new program: using a 3-person panel and requiring the decision to punish be unanimous--not a simple majority--because “being expelled is really a life-changing punishment” according to the provost.The unanimity standard was put into practice in 2016. Expulsion is the only option if the accused/investigated is found responsible. Two weeks ago The New York Times wrote a feature on Stanford and its handling of a 2015 case in which a disciplinary panel of 5 found a football player guilty of sexual assault--twice. Correction: a simple majority of the panel members found him guilty. But the standard at the time was a 4-1 decision requirement. So he was never punished and played last week in Stanfords bowl game. The victim, who studied elsewhere for a semester has not decided is she will return to Stanford. Backing up a little though. Stanford has several Title IX complaints pending. Filed by former students, the complaints are centered on how the university investigates Title IX complaints as well as the disciplinary process. Again, as noted above, Standford has been changing their policies and procedures, and apparently are eager to avoid the feds coming to Palo Alto for a visit. In December, BuzzFeed reported that at least two of the women--both victims of sexual assault--who have filed OCR complaints were offered money in exchange for the withdrawal of the complaints. In one of those cases the money was offered under the guise of support for therapy and other expenses resulting from the assault; but conditional upon withdrawal of the complaint. (Withdrawal of a complaint does not guarantee that OCR will drop its investigation. It does not require a complaint be filed in order to initiate an investigation.) As a reminder, the student-run marching band has been dormant this year (except for bowl games!?) in the wake of revelations about hazing--of a sexual nature. (All hazing deserves punishment; the nature of this hazing speaks to the campus climate, which is why I mentioned it.) In addition to the OCR complaints, a lawsuit was filed against the school in December. A woman who was physically and sexually assaulted by a man with whom she had tried to end relations encountered resistance from university staff and officials as she made her way through the process. She heard the now unfortunately common responses to sexual assault that included questions about whether she really wanted to have sex with him (from a counselor) and whether she really wanted to pursue charges against the assailant, who admitted to student life staff that he did indeed rape the woman in question. Punishment was not pursued because staff believed he was sorry and would not re-offend. He re-offended. Against at least two other women at Stanford. He graduated as a student in good standing in 2014. He was issued a 10-year ban from campus. Stanford is pushing back against the media coverage of its many complaints and several lawsuits. There is a lot of PR happening. There is a lot more to come.
Several significant events occurred in the past few weeks as we were wrapping up semesters, traveling, celebrating good news and times, and reflecting on what 2017 will bring and how we will respond.We will be catching up on these. Here is installment one about the Minnesota football boycott. Minnesota football team protests Title IX sanctions Part I: The members of the University of Minnesota football team banded together and said they would not participate in any football-related activities--including their scheduled December 27 bowl game--in protest of sanctions handed down by school officials against ten team members involved in sexual assault and harassment of a female student. They demanded the president and athletic director reverse the suspension of their teammates. In what was supposed to resemble activism, the players presented a united front, had a press conference, and told the media that the Title IX infractions were unfairly meted out, that there was violation of due process and constitutional rights. The action is supported by head coach, Tracy Claeys, who tweeted (2017--the year when people become more self-aware about Twitter??) that he has "never been more proud of our kids. I respect their rights [and] support their effort to make a better world!" He also invoked the concept of due process. There was a flurry of opinion pieces (and opinion pieces masquerading as fact) about Title IX investigations run amok. Part II: The players thought that the cultural capital of football and its corresponding economic capital (bowl games = $$) would prevail. Not in this cultural climate--and not with the evidence against the ten players, including four who had been suspended by the coach himself for team violations after the incident was reported in September. Players hold another press conference and say they will indeed play the bowl game and resume other activities. The change was attributed to the boycotting players actually reading the 80+ page report of the incident; a report compiled by the school as it investigated the incident as per its legal obligations. The reading of the document was part of a meeting with the university president. I imagine that the power of football was brought up in that conversation as well. The power bestowed on intercollegiate football players and the ability of universities to take that power away. (There were many troubling perceptions of the power of football within this whole event.) The second press conference reflected some of these power paradigms Spokesperson for the boycott said "we understand that what has occurred these past few days and playing football for the University of Minnesota is larger than just us." Sadly there was no concern for the victim. No support for the role of Title IX and its enforcers in keeping students safe. No clarification about Title IX investigations and how they differ from the criminal process. In short, it does not seem like anyone learned anything except how to (and how not to) wield the power of football. Part III: Minnesota wins the bowl game. A Forbes writer attributes the underdog win to the "solidarity" that was established during the boycott and calls the boycott a "silent victory." Solidarity in the name of misogyny is not very silent--especially in football. The school announces this week that Claeys has been fired. The athletics director (in his first year) said that there were issues in the program around recruiting and ticket sales but admitted that the coachs comments during the boycott did not help his cause. There has been pushback against the firing.
Today the Department of Educations Office for Civil Rights announced a resolution agreement with Elmira College in New York, after finding the college in violation of some of Title IXs requirements governing its sexual assault response. OCRs investigation was prompted by the complaint of a student who reported to campus officials in November of 2013 that she had been sexually assaulted by a fellow student. (Specifically, she reported that he had become"forceful" and she agreed to have sex with him "out of fear.") After investigation, the final investigative report concluded that the respondent committed sexual misconduct, but did not engage in sexual assault, and sanctioned the respondent with a no-contact order. OCR determined that while the colleges response was equitable, the fact the it did not start investigating the complainants November report until February of the following year was not sufficiently "prompt." It rejected the colleges argument that such delay was reasonable in light of Thanksgiving break, final exams, winter break, and a one-week illness of the complainant. Alone this violation may not seem like a big deal, and even OCR noted that the delay did not seem to result in the further harassment of the complainant. But the agency also pointed out that when it looked at 16 other sexual harassment/misconduct complaints resolved by Elmira between 2012 and 2016, it found some "violation or concern" in all but one of them, "including instances where the college failed to provide prompt and equitable investigations and took insufficient measures to assess and address the impact of harassment and possible hostile environments." In other words, a pattern of getting it not-quite-right. As a result, OCR and Elmira agreed that Elmira would commit to training for its Title IX coordinator and other staff members who play a role in the grievance process. The college must also review its own investigations that have occurred more recently than OCRs investigation, to ensure that they were conducted in a prompt and equitable manner.
...three. As in the third Ivy League university to suspend a sports team this semester over racist, misogynist, and generally offensive messages among members. It is the fourth team when counting non-Ivy Amherst. Princetons swimming and diving team has been banned from competition pending an investigation which will inform administrators decision over whether to cancel the rest of the season. Like at Harvard, the comments were about members of the womens team. But other than that we do not know much. Unlike at Amherst, where the comments were revealed via a student publication, the issue came to the attention to the administrators via an anonymous complaint. It is possible some comments will be leaked. I dont think we really need to know exactly what was said to see that the genie is out of the bottle. These are not going to be isolated incidents. So while some people wait to see if Princeton officials will cancel the swim teams season, I am waiting to see how these events and the ones that will follow will be framed. Will people make a connection between the athlete culture that produces the athletes who write and disseminate these message and the sexual assault epidemic on college campuses? Will we start to look at "locker room culture" and think about sports beyond football and basketball? All the teams reprimanded/suspended/cancelled have been non-major teams--and at schools that are not considered "big-time college sports" schools. (I am not saying that athletes at these schools do not work as hard or as not as dedicated or that their sports are not important. I am speaking to the larger culture and categorizations of intercollegiate sports.) Will Title IX be used as a remedy or a consideration in these cases? Will we be able to talk about not just gender but race and sexuality and class as we engage in discussions? So many questions. I suspect more cases will emerge before we start to get at answers.
In a rather unsurprising move, a settlement has been announced in the case of former Florida State University students Erica Kinsman and Jameis Winston. Kinsmans lawsuit against the former FSU quarterback and current Tampa Bay Buccaneers QB (and Winstons countersuit) has been resolved via an undisclosed settlement. The trial, a goal of which was to hold Winston accountable for raping Kinsman four years ago, was scheduled for April 2017. No one else held Winston accountable. Local and university police did not investigate properly and the lack of police evidence and interference in the investigative process meant the state attorney general could not effectively prosecute him. FSU also failed to investigate; held a ridiculous student conduct hearing overseen by a former federal judge who had no idea how to run such a hearing; and then found that there was not evidence (over a year later--in violation of Title IXs 6-month time frame) to suggest the sex was not consensual. As an outsider who closely followed this case, the incompetence, the denial, the misogyny, and overall disregard for student welfare was immensely frustrating. There is little to suggest that FSU has realized the error of its ways or that the culture of Jimbo Fishers team has changed. I am not suggesting that the settlement was unwise or that I believe a trial would have produced some desired result. I do think that Winston benefited immensely from the settlement in terms of PR. He has been scandal-free since joining the NFL and Bucs fans seem to love him. A trial that brings up his past might remind (or inform) some people of what he got away with. He learned well from his alma mater that image is everything and paying to make image problems go away is worth it. As a reminder, Kinsman tells her story in the documentary The Hunting Ground.
Yesterday, Amherst College suspended all team activities for the mens cross country team after a student publication revealed social media messages and emails to incoming team members that included racist. misogynist, and homophobic comments. Last month, Harvard suspended the mens soccer season in the wake of revelations that the team has continued its practice of ranking first-year members of the Harvard womens soccer team in sexually explicit ways. In a few weeks, the Baylor football team will play in the Motel 6 Cactus Bowl against Boise State despite accusations of sexual assault by 17 women against current and former football players and a clear evidence of cover-ups. One of these things is not like the others. Things have been brewing, arguably boiling over, at Baylor for some time, which is why Paul Finebaum, ESPN commentator, expressed outrage last month that the team had not been suspended. Finebaum said on-air that Baylors football season should have been suspended in light of its many misdeeds (chronicled here--and everywhere). Finebaum was calling for the Big 12 to issue the suspension because neither the NCAA nor the university itself will do so. The NCAA is not planning anything in response to the cover-up of the sexual assaults and to an institution that does not have control over its athletics program. Baylor hired a law firm to do an external investigation and then failed to make changes and refuses to acknowledge a culture of sexual hostility and athlete privilege. The two events at Amherst and Harvard have commonalities: introduction of the first-year class into team culture using offensive discourse; elite, private schools; mens "minor sports"; both schools will conduct investigations into the matters. At Harvard the offense was directed at the womens soccer team; a betrayal of what many of the women felt was a familial (non-sexual) relationship. Since the soccer scandal was revealed, it has come out that similar practices have occurred within the mens cross country team. The initial response was meh. The athletic director said Harvard would handle it internally and by trying to make it less of a media thing--he made it more of a media thing. The additional findings that 1) players were not being "forthcoming" about what was happening and 2) it was still happening forced the AD as well as the university president to make stronger public statements and ultimately cancel the season. Investigations are ongoing. At Amherst, it does not appear--at the moment--that the commentary was directed at a female team. A June 2015 list of female students has surfaced that includes pictures and comments about their sexual pasts, including guesses about STD infections. The incidents in question are from 2013-15. Of course, as we saw at Harvard, these things often do not just disappear on their own, even when there is new leadership--as there was at Harvard when they hired a new soccer coach a few years ago. Also, the cross country season is over. "Team activities" would likely include team banquets or coach-led practices, but its finals week at Amherst, and I assume there is not much on the docket for the team. So now Amherst must decide how to proceed. Will athletes involved be individually punished? Will the be prevented from running next season? Many cross country runners will also run indoor and outdoor track. Will team members be allowed to compete for their other teams? To its credit, Amherst, under its (not so new anymore) president, has taken issues of sexual assault and harassment more seriously than in the past. The schools response was immediate and the AD and president are seemingly on the same page. I hope this one does just fade away. Investigations are ongoing. What have we learned? Well male privilege and sexual misconduct are not just the province of football players. This is obvious when taking a broad look at the cases of harassment and assault involving athletes. Baylor gets the most attention because it is a big-time football program. (There is also the issue of adherence to "Christian values" that are the alleged bedrock of the institutional mission; this has received less attention.) So what it looks like is that there is more at stake at Baylor--for the athletes, for the coaches, for the school. I do not agree with this view because what I know for sure is that the stakes are the same for the women who are the victims of these athletes and for potential victims. They are on campuses where sexual violence is a known reality (as it is on most campuses). The crimes and misdemeanors may be different and, at the individual level, the effects on victims may be different (in part because of school response). But all these schools have a climate of sexual hostility and it is manifesting in their athletic departments, among their male-student athletes (and probably at higher levels as well). And this means that students do not feel safe at their schools. PS. More on Baylor: The university received word this week from the Southern Association of Colleges and Schools, an accrediting body, that it would be monitoring Baylors ability to 1) maintain institutional control over intercollegiate athletics, 2) create a safe and healthy environment for students, and 3) provide adequate student support services. In other words, while there are a lot of external pressures on Baylor, it continues to do very little. Baylor fans might say that ditching Art Briles was enough. Finebaum, and many others, do not think so. Firing Briles (who is suing the school for libel) was cleaning house. It is was not shoring up the structure of the house. In fact (to continue to metaphor) Baylor brought in a temporary coach, Jim Grobe, who seemed to be predisposed to making things dirty again and further weakening the structure. (Based on comments during his early press conferences and interviews.) The new coaching staff has been named. We shall see what those press conferences bring. Investigations are over. PPS. Columbia wrestling I knew I forgot something! Columbia University (also elite, private) suspended its mens wrestling team ("minor sport") after some members racist and misogynist texts were discovered. Columbia completed its investigation last month. While the investigation was pending, members were not allowed to compete. The team was still practicing. The messages were sent in a group message format. Those not participating in the group message were allowed to resume competition. Some members were suspended for the rest of the season. Others were suspended until the start of spring semester. Notable in this case: former assistant coach Hudson Taylor who founded Athlete Ally, a group that supports LGBT athletes, took some responsibility for the culture that engendered these messages: "[The actions] are a reflection of our culture and my coaching. I apologize to the Columbia campus, to the alumni, and to my former wrestlers for not doing more to develop them into young men of better character.”
In three separate cases, courts issued rulings this week that address claims by students disciplined for sexual assault that the universitys process for administering discipline was biased and/or procedurally unfair. A summary of each is below. DOE V. OHIO STATE UNIVERSITY. In this case, Ohio State expelled a male student for having sex with a female student who could not consent due to incapacitation by alcohol. He sued the university and several university officials in federal court. This week, the court granted the universitys motion to dismiss the constitutional and Title IX claims against it because state entities like Ohio State enjoy sovereign immunity from suit in federal court. The sovereign immunity doctrine has an exception for cases where the plaintiff seeks prospective relief, such as reinstatement, but because the plaintiff did not request reinstatement, that exception does not apply. Additionally, the university officials moved to dismiss the claims against them in their personal capacities on the grounds of qualified immunity. Under this doctrine, state officials are only liable for violations of constitutional rights that are "clearly established." The court determined the most of the plaintiffs allegations about the deficiency of the process constituted a violation of clear constitutional precedent. However, the court did not dismiss plaintiffs allegations that the university officials were trained in a biased manner, since if proven, such claims would implicate a clear constitutional right to have ones case decided by an impartial adjudicator. However, the court cautiously acknowledged that theres a difference between being biased against sexual assault in general, and being predisposed to finding a respondent responsible for sexual assault in a given case. The plaintiff cant satisfy the latter with evidence of the former. However, the court read the plaintiffs allegations as plausible enough to warrant discovery. The officials would have an opportunity to seek dismissal on summary judgment and have the court determine if the plaintiff has meet that burden of producing evidence in support of the allegations. DOE V. UNIVERSITY OF CINCINNATI. Here, a male student was suspended for one year for having sex with a female student without her affirmative consent. He then sued the university in federal court and moved for an injunction that would prevent the suspension from taking effect. The court granted the injunction after agreeing that the plaintiff was likely to prevail on the merits of his argument that the complainants absence from the hearing deprived him of an opportunity to cross-examine her. While not endorsing a blanket right to cross examination in all student disciplinary hearings, the court did acknowledge the importance of that right in cases like this one where the hearing panels assessment of parties credibility was the key factor in its determination. The court also did not insist that when a right to cross examination exists, it must be conducted in person at the hearing. Instead, what made the accusers absence from the hearing a due process violation in this case was the fact that the respondent did not know in advance that she would be not be present, and thus, was unable to take advantage of other means of cross-examination, such as the submission of written questions that the hearing panel could have posed to complainant in some other way. ARISHI V. WASHINGTON STATE UNIVERSITY. This case stems from Washington State Universitys decision to expel a doctoral student after he was arrested for child molestation and statutory rape. The student sued in state court to challenge the universitys disciplinary procedure as a violation the state statute that imposes procedural requirements on adjudications conducted by state agencies. He argued that he was not allowed a "full hearing" required by Washingtons administrative procedure act, which would have provided him the opportunity to cross examine witnesses, present evidence, and be represented by counsel. The court agreed that state universities are subject to the law and that none of the exceptions warranting an abbreviated hearing apply. The court has ordered the plaintiffs case remanded to Washington State, which must conduct a full hearing if they wish to expel him. According to this news article about the case, the courts decision will mean changes in the disciplinary process not just at Washington State, but 26 other state colleges and universities whose procedures do not constitute full hearings under the state administrative procedures act.
An Idaho elementary school may no longer segregate students by sex after the Department of Educations Office for Civil Rights determined that doing so without evidence-based rationale violated Title IX. OCRs investigation was triggered by the ACLU of Idaho, which filed a complaint against Middleton Heights school district in 2013. The ACLU argued that the elementary schools practice of separating boys and girls from first through sixth grade, including even for some nonacademic subjects, was not tailored to the programs stated objective of closing the gender gaps in reading and math proficiency. For one reason, the program segregated students for more than just math and reading instruction. But even as it applied to reading and math, the school districts rationale was based upon a faulty premise according to the ACLU, which cited evidence that gender gaps in math and reading at Middleton Heights elementary school had been small or nonexistent prior to the segregation program. Instead, it argued, the school district imposed segregation based on impermissibly "overly broad generalizations" and gender stereotypes, such as that boys benefit from a kinetic classroom environment and girls need calm and quiet. The ACLUs complaint criticized the school district for operating on these assumptions and attributing them to entire genders, rather than making an "individualized assessment" to determine which students benefited from which environment. The school district actually curtailed its decade-long segregation in June, and reportedly had no plans to reinstate it. To make sure, however, OCR is monitoring the school district until 2020.
This week, the California Court of Appeals overturned a lower court ruling that found in favor of a student, John Doe, who had been suspended from the University of California San Diego for sexual misconduct. In July of 2015, a superior court judge invalidated the universitys suspension after concluding that disciplinary hearing was plagued by prejudicial procedural errors, including limits on his right to cross-examine the complainant and the investigator, as well as insufficient evidence to justify the findings in complainants favor. The appellate court disagreed with the lower courts conclusions. One of the procedural errors that the lower court addressed was the fact that the respondent was not allowed to ask questions directly to the complainant. Instead, the hearing panel asked the questions John Doe had submitted. This was not itself a problem, but the lower court did find fault in the fact that the panel filtered out many of the proposed questions; only asking 9 of the 31 submitted by the respondent. But the appellate court concluded that the rejected questions were unnecessary or repetitive of earlier testimony. For example, 7 of the rejected questions sought the complainants admission that she sent certain text messages, which was unnecessary since the text messages themselves were already in evidence. Moreover, Doe did not argue in his appellate briefs how exactly his case was harmed by the hearing panels exclusion of various questions. The lower court had also found that that the hearing panel improperly relied on the investigators report. But, despite John Does argument to the contrary, the appellate court recognized that university policies put him on notice of the fact that the report would be used as a factfinding document. Additionally, though John Doe claimed he was prejudiced by not being able to cross-examine the investigator who wrote the report, the appellate court noted that Doe could have called the investigator as a witness for that purpose, and that he neglected to do so. The lower court had based its determination of insufficient evidence on its conclusion that the hearing panel should not have relied on the complainants testimony or the investigators report, because neither had been scrutinized under cross-examination. The appellate court, having rejected the alleged procedural errors about cross examination, easily determined that there was sufficient evidence of John Does guilt. Lastly, the appellate court reversed the lower courts conclusion that the universitys decision to suspend John Doe was an abuse of discretion, especially in light of the fact that the length of the sanction increased with each of John Does internal appeals. But the hearing panel, which only recommended suspension for one quarter, was only authorized to do that, recommend. The Dean, who sanctioned Doe for a one year suspension, always had the ultimate authority to determine the initial sanction. While the Dean departed from the hearing panels recommendation, the appellate court found that the Deans sentence was consistent with university policy. The council of provosts, which considered John Does appeal of the Deans sentence, increased the sanction to one year and a quarter. The appellate court found that the councils reasons were related to the content of the appeal, and not, as Doe claimed, punishment for exercising his right to appeal in the first place. The lower court has been ordered to deny John Does petition for mandamus, which would have canceled his suspension. It is not clear to me what that means for Doe himself, given the time that has already passed while his case and appeal were pending.
The President-elect has announced his pick for Secretary of Education: Betsy DeVos, a public school reform advocate and former chair of the Michigan Republican Party. DeVos currently chairs the board of directors for the American Federation for Children, an advocacy group committed to school choice through means such as vouchers and tax credits. Though there is little public information I could find on DeVos from which to predict what her appointment would specifically mean for Title IX enforcement, the few clues I did find suggest that she is unlikely to champion the laws aggressive enforcement. In 2006, a Michigan right-wing watch group compiled a report on DeVos and her husbands philanthropy, which targets many conservative religious causes -- including a $50,000 gift to Grove City College, which notoriously refuses to participate in federal financial aid programs so that it will not have to comply with Title IX. (DeVoss own alma mater, Calvin College in Grand Rapids received a requested Title IX exemption in 1985 that permit the seminary program to limit certain internships to male students, consistent with the policy of the Christian Reform Denomination not to ordain women. However, unlike many other religiously affiliated institutions, Calvin College has not sought exemptions from Title IXs application to LGBT students.) The same report also indicates that she and her husband have donated to the Institute for Marriage Policy and the Michigan Family Forum -- groups that opposed same-sex marriage. From this it seems reasonable to predict that DeVos will not continue the current administrations push for Title IXs application to LGBT students. Add to that her financial support for pro-life groups and I think its fair to say the incoming Secretary is no feminist, and would be unlikely to choose one as Assistant Secretary for Civil Rights.
* There is a lot to say about what last weeks election of Donald Trump means for Title IX. I am still gathering my thoughts and reading others. Meanwhile, I continue with my commitment to public scholarship and advocacy of gender equality in education in this forum as I contemplate how else I can best make change.* Old news: The University of Maryland student senate voted to implement a fee of $34 per student to help fund the schools "understaffed and overworked" Title IX office. As Erin told Inside Higher Ed, this is the first time we have heard of a university using student fees to fund its Title IX Office. First thing to note is that, though the SGA approved the fee, it was not a done deal; which leads to... ...newer news: the SGA has decided not to devote student fees to the Title IX office. After the national news attention UMD received, the president held a meeting with SGA leaders and said the university would fund the office. It has committed to hire an additional investigator, two professionals in the health care center dedicated to counseling on these issues, and it will hire a firm to evaluate how UMD handles sexual assault reports. Apparently the move by the SGA was one intended to pressure the administration to pay more attention to the issue of sexual assault on campus. And it worked. In addition to the news coverage, state legislators started asking questions about why the burden of funding the Title IX office was being put directly on students. SGA leaders, however, did say that they would reintroduce the idea of the fee if they did not see the university following through. Initially it appeared that the university really needed the money from the students. But now money has been found in the budget. The people who work in compliance are pleased with the additional funding. It seems that things have tough in the past few years. The Title IX Office does not even have an office--two years after UMD hired its first Title IX coordinator. A spokesperson for the university had called the vote to fund the office in part through student fees "a show of support for the important mission of the Title IX office." The better show of support is the university fully funding its Title IX office and its mission; a mission that it is legally required to undertake. Could they have chosen this method of funding? Yes. But as it turned out the ethics and the optics of this route to compliance drew a lot of questions. The commitment to the "important mission" was already suspect. Two years without an office? That is a nearly impossible and potentially dangerous situation. One, the amount of paperwork and organization is immense. Managing all of that without a permanent home impedes the ability of staff Two, there are privacy issues involved. A mobile or constantly shifting office compromises privacy And, if there is no permanent home, how do students know where to go? While there are other reporting options--professors, residence hall assistants and directors, counseling and health services--all of those people, as well as students, should know where the Title IX officer is located. Though there may be other universities in similar situations (underfunded Title IX offices), UMDs situation made national news. We will likely hear more about how the university chooses to demonstrate its institutional support of Title IX.
Yesterday the Supreme Court partially granted the Gloucester school districts petition for certiorari to review the appellate courts decision that a transgender student had the right to use the bathroom according to his gender identity: cert petition:
This week LGBT rights activists in Utah filed a lawsuit challenging state law that prohibits schools from including instruction on the advocacy of homosexuality in the curriculum, which the state Board of Education has interpreted to apply broadly to "any course or class." The lawsuit also targets provisions of state law that withhold support and recognition from student clubs whose activities involve or express "human sexuality." The lawsuits primary arguments are that by singling out homosexuality for exclusion from the curriculum, and LGBT groups for the withholding of school support, Utahs laws violate students constitutional rights under the First and Fourteenth Amendments, including equal protection, free speech and association, and the right to receive information. In addition to the constitutional claims, the lawsuit argues that the anti-gay state laws force local school districts, some of which are defendants, to violate Title IX by foreclosing LGBT students rights to equal educational opportunities. The lawsuit charges that the state law violates Title IX because it forces school districts to "foster a hostile and censoring environment of silence and non-acceptance for LGBT students" and by "subjecting them to stigma and harassment based on sex, including actual or perceived gender non-conformity, being in a same-sex relationship, or being transgender." The lawsuit also claims that one of the school district defendants violated Title IX by ignoring severe harassment that students directed at one of the plaintiffs in the case, whom they perceived to be gay, a claim that helps illustrate the potential for discrimination in the curriculum to negatively affect school climate in ways that cause tangible injuries to LGBT students.
Federal courts all over the country are hearing challenges to the Department of Educations position that Title IX prohibits educational institutions from discriminating against transgender students and excluding them from single-sex facilities and programs that they seek to access in a manner consistent with their gender identity. This post will cover two key developments in separate cases that occurred this week.
In one case, a federal magistrate judge in Illinois rejected efforts of parents to prohibit Township High School District from accommodating a transgender students right to use the girls locker room, which is consistent with her female gender identity. The school district developed an inclusive policy pursuant to an agreement with the Department of Education that resolved the agencys finding that excluding the transgender student violated her rights under Title IX. The group of parents sought an injunction against the policy by challenging the Department of Educations guidance document that contains its interpretation of Title IXs application to transgender rights. It also alleged that the schools inclusive locker room policy violated their childrens constitutional right to privacy, but failed to convince the magistrate to offer relief on either ground. As a result, the school districts policy that permits the transgender student to use the girls locker room remains in effect.
As to the Title IX issues in particular, the magistrate -- whose role is to make a recommendation to the federal district court judge -- determined that the parents did not have the requisite "likelihood of success on the merits" necessary for such an injunction to issue. The magistrate noted that many courts are adopting broader understanding of sex discrimination as defined by Title IX and other civil rights laws to encompass discrimination targeting transgender individuals. Even the Seventh Circuit, which has jurisdiction over the federal courts in Illinois, may be poised to overrule its very influential 1984 decision that foreclosed Title VIIs protection to transgender plaintiffs. (The appellate court very recently vacated a panel decision that declined to overrule that earlier case, signaling the possibility that the full court will do so when it rehears the case en banc.) Thus, the magistrate concluded, it is not apparent that the plaintiffs are likely to prevail on their argument that the Department of Education contravened Title IX when it promulgated the transgender guidance or when it entered into the resolution agreement with the school district that incorporates the agencys interpretation in the guidance. Similarly, it is unlikely to prevail on its argument that the agency should have used notice and comment procedures to promulgate the transgender guidance, since it appears to be an interpretation of existing requirements under Title IX and its regulations, rather than a new obligation.
The magistrate acknowledged the ongoing litigation in Texas that is also challenging the validity of the Departments guidance about Title IXs application to transgender rights. Like the decision from Ohio that we blogged about recently, the magistrate in this case determined that the Texas federal court judges issuance of a nationwide injunction against the guidance has any bearing on this case.
Coincidentally, however, the second decision of note this week pertains to that same injunction. The federal judge in Texas rejected arguments by the Department of Education to narrow the scope of that injunction to apply only in the 13 states that are plaintiffs in the Texas case, and reasserted that the Department of Education is “enjoined from using the Guidelines or asserting the Guidelines carry weight in any litigation initiated following the date of [its August 21, 2016] Order."
The two decisions this week are certainly in conflict, as the nationwide injunction is premised on the judges acceptance of the argument that the transgender guidance is most likely not an appropriate interpretation of Title IX, while the decision in Illinois suggests that it likely is. This fundamental inconsistency could be resolved through the process of initials appeals, in the event that the circuit courts eventually agree to consistent answer to this question. Alternatively, however, any circuit split that develops would increase the likelihood of the Supreme Court tackling this matter once and for all.
Meanwhile, however, as recent decisions from other district courts have demonstrated, other courts seem skeptical of the power of one federal judge to affect litigation elsewhere. As the Township High School District demonstrates, that injunction is not interrupting enforcement of the guidance in earlier cases. Nor, as evidenced by the recent decisions in Ohio and Wisconsin decision, does it appear to interrupt efforts of transgender students themselves to assert a right to bathroom usage under Title IX.
Today the Department of Educations Office for Civil Rights announced an agreement with Wesley College in Delaware that resolves certain violations of Title IX that the college has committed in its response to sexual assault cases. The agreement is unique in that it is the first time the agency has resolved a complaint filed by a student who was accused and disciplined for sexual misconduct. The agency agreed with him that the process the school used to adjudicate his case, and ultimately expel him, was not "equitable" as required by Title IX. In 2015, someone (or someones) planned and broadcast a live stream video of a male student having sex with a female student at a college fraternity house without the female students knowledge. Witnesses to the live stream named the accused student as one of those who had orchestrated the live stream, along with other members of his fraternity. Based on these reports, the college immediately issued an interim suspension, without undertaking any kind of preliminary investigation, such as interviewing the accused student. This was in direct violation of the colleges own policy, which provides accused students with an opportunity to share their side of the story before an interim suspension can issue. This was also one of several aspects of the colleges violation of Title IXs requirement of an equitable response, according to OCR. Next, an investigator prepared a report for the judicial hearing without interviewing the accused student, an additional policy violation. Relatedly, the college also skipped a preliminary "conference" that was required by college policy, which would have also given the accused student to tell his side of the story. Meanwhile, the college failed to provide the accused student with accurate information about the hearing process. This misinformation, combined with the fact that the college failed to hold the preliminary conference, caused the student to believe that the judicial hearing that determined his responsibility was actually the preliminary conference. Owing to this confusion, he did not bring witnesses or otherwise prepare a defense to his hearing. This collection of errors was cited by OCR as an additional examples of inequitable conduct by the college. The hearing itself was also plagued with errors. For one, the college had not provided him with an advance copy of the investigators report and other key evidence, despite being required by its own policy to make such evidence available to both parties. Another error occurred when the accused student was not allowed to hear the testimony of the other students who had been charged. The testimony of these students, who named him as a participant in the live-stream planning, was the only evidence that supported the boards finding him responsible. However, the accused student was denied the opportunity to hear or question their testimony. Finally, OCR noted that only six business days had passed between when the accused student received notice of the charge against him and the colleges decision to expel him. The colleges own policy contemplates a longer time frame that permits respondents with adequate time to prepare to participate in the process. In addition to finding the process in the accused students case to be inequitable, OCR examined the records of other adjudications by the college and found evidence that some of these problems are widespread. Specifically, the college appeared to impose interim suspensions without preliminary investigation in other cases as well, and also had a habit of depriving accused students of the opportunity to present witnesses and other evidence. OCR even found that the college violated the rights of complainants, such as by failing to provide appropriate interim remedies like counseling and academic services, and by failing to provide complainants with written notice of the outcome. The college also failed to provide sufficient notice and dissemination of its policies, information about the Title IX Coordinator, and information about how to report sexual assault. In this respect, Wesley College hardly looks a college that is "overcorrecting" the problem of sexual assault. It is not satisfying the Title IX right of the complainant OR the accused. I am glad to see that OCR is using its enforcement power to ensure that respondents as well as complainants have the right to an equitable process. Such fundamental fairness is of course important to students who are accused. Its also important to complainants that respondents are treated fairly, since procedural errors introduce the risk that a punishment could be invalidated on appeal. Moreover, I think its helpful that OCR is clarifying that Title IX is not to blame when institutions deprive accused students of fair investigations and hearing. Clearly, Title IX does not require such unfair procedures, and in fact, Title IX is violated when they occur.
Last week a federal judge in Rhode Island concluded a bench trial in a case between a John Doe plaintiff and Brown University who sued the university after he was suspended for sexual misconduct. The only issue that the trial addressed was whether the university breached its contractual obligation to John Doe in the manner that it conducted the process by which he was found responsible and disciplined. In siding with the plaintiff, the court made clear that it was not concluding anything about the merits of the complaint against Doe. It also expressed alarm that Brown students had orchestrated an email campaign directed to the judge to criticize his earlier decision that allowed Doe to remain on campus while his case was pending, and hoped that these students would read the decision and be educated about the role of the courts in such matters. As for the breach of contract claim itself, the court first acknowledged that the Student Handbook, including the Code of Conduct, form the basis of a contract between a student and the university. In this case, the conduct for which Doe was suspended occurred in 2014, so his case should have been governed by the policy and process contained in the 2014-15 version of the Code of Conduct. Brown has subsequently updated its policy to provide a definition for consent, which was absent from the 2014-15 policy, but it applied the newly-codified definition of consent when it adjudicated Does case. The new definition clarified that that consent could not be obtained through "manipulation," and the charge in Does case was that he had manipulated another student to have sex. (In fact, he had admitted to such "manipulation" in an incriminating text message.) Brown argued that the consent definition merely "codified community standards" of consent, and therefore did not materially change the 2014-15 Code. But the court determined that a reasonable student would not have expected in 2014-15 that sexual activity to which another had been manipulated to consent violated the Code of Conduct. The Court acknowledged that this case was a "close call" and that the problem it acknowledges is limited only to those cases that occurred prior to the change of definition. As such, it is not an indictment on Browns sexual assault response or, for that matter, on Title IX. Though the court invalidated Browns decision to suspend Doe, it acknowledged the universitys right to hold another hearing using the 2014-15 Code. Presumably, this would mean instructing the panel to apply a common sense/ common understanding of consent, as they had done prior to the Codes incorporation of a specific definition. It is possible that under such a definition, the "manipulation" in question negates consent, but hearing panel could decide otherwise.
UCLA settled a lawsuit last month with two graduate students who alleged that administrators discouraged them from filing a formal complaint against a professor who sexually harassed and assaulted them. The settlement includes a financial settlement, part cash as well as a year-long dissertation fellowship to one of the plaintiffs. The situation for the history professor they accused of unwanted sexual advances has been in flux since the women initiated their complaint in 2013. He was suspended without pay for a quarter and resigned his position as director of the Center for Near Eastern Studies. He resumed teaching, but is not teaching this fall. He is scheduled to teach in the spring. He is not allowed to use his history department office during the week. His office hours are being held in a library on campus and he is being required to keep the door open while meeting with students. He is not allowed to have contact with one of the plaintiffs. (It seems the other has graduated.) He has to pay the UCLA Board of Regents $3,000. The saga at Baylor continues, probably because they keep doing ALL THE WRONG THINGS. Granted they cannot control the behaviors of the people they have fired who continue to talk to the media. Though I am curious as to why Art Briles sat down with ESPN whose reporters have not been kind to the school if the many, many segments on Outside the Lines are any indication. The way Briles and former President Ken Starr have proceeded since their release is an interesting study in voice and silence. Sexual assault is a very silencing experience and only a few of the women who have joined the lawsuit against Baylor have spoken about their experiences. Some have asked to speak personally with Briles who said he has been prevented from doing so under terms of his release (his very lucrative release). So he cannot speak to them but he can speak publicly--about some things--the things he wants to talk about; the things he thinks will rehab his image and get him another coaching job next year. Starr seems to be trying to help his friend, Briles, on this quest. He said in a room full of reporters in Texas that Briles was "honorable" and "unfairly criticized." He also said, in reference to the sexual assaults (apparently there is no gag order on him) that it was not a problem with the culture of Baylor or Baylor football. He was called out by a reporter who thought it hypocritical that Starr could address a culture of alcohol abuse on his campus but not sexual assault. And still these men get public platforms. The good(ish) news? Well all the talking is not helping public image. I have seen stories from sports journalists warning schools that might in the market for a new football coach to avoid Briles. And now the Title IX coordinator has resigned. Patty Crawford, at Baylor since late 2014, said she was being prevented from implementing the changes outlined in the Pepper Hamilton report--the one Baylor itself commissioned when news of the sexual assaults became public. Crawfords resignation, her filing of a Title IX complaint with OCR, and her stories about how Baylor continues to violate the law suggest what many of us suspected: that report was a PR move. Who are they going to get to do that job? How are they going to explain themselves when OCR heads to Waco? Oh never mind. They promoted from within--of course: _On Monday, Baylor said it had filled Crawfords post by promoting senior deputy coordinator Kristan Tucker, whom interim president David Garland called "a capable and experienced Title IX professional."_ (from ESPN article linked above) It also appears that a Title IX investigator, one of two employees charged with investigating Title IX violations on campus, is no longer at the school. Whether she resigned or was fired is unknown. On the same day that Crawford resigned, two more women joined the lawsuit against Baylor. That brings the total to eight. Only one of the eight women was raped by an athlete. The culture of sexual assault--that does not exist, according to Starr--is not confined to athletics. The watered down California bill about LGBT discrimination at private colleges has passed. Governor Jerry Brown signed the bill which requires private schools to publicly post their gender and sexuality policies and to note any Title IX exemptions they receive from the Department of Education. The bill was originally written to prevent these schools from discriminating against LGBT students, but the outcry from religious schools and groups resulted in the compromise bill signed last week.
Last week we blogged about the trial between San Diego State University and its former womens basketball coach Beth Burns. Burns was suing on the grounds that she was wrongfully fired from her job and for reasons that involved retaliation for her complaints about gender inequality that affected her team. By way of update to that earlier post, we learned this week that the jury did not accept the universitys argument that Burns was fired for legitimate reasons, and awarded her $3.35 million in damages. Though we havent had one on the blog in the last couple of years, this case is part of a broader trend over the last 10 or so years or so, where retaliation proves a successful litigation strategy for coaches who are terminated or face other reprisals on the job. It also seems to be a trend that when coaches win retaliation claims, they win big.
On the heels of a similar post from last week, another federal district court has enjoined a school districts policy of banning transgender students from using the bathroom that matches their gender identity. An elementary school student in Ohio, a transgender girl, will be able to use the girls bathroom while she litigates her permanent right to access gender-appropriate facilities under Title IX. Similar to last weeks ruling, this court recognized the plaintiffs likely success on the merits of her claim as well as irreparable harm in delaying the remedy of a court order. Simultaneously, the court in this case considered and denied the school districts motion to enjoin the Department of Educations enforcement of its interpretation that Title IX covers discrimination against transgender student. In this regard, the courts opinion contrasts with a federal district court decision last month that granted the state of Texass motion to enjoin Title IXs enforcement. Notably, the court in the current case was not deterred by the purported "nationwide" scope of the Texas injunction:
_Because Ohio was not a party to the Texas litigation, and because this litigation was initiated before the Texas court issued its preliminary injunction, the injunction does not apply here. This is also consistent with the Supreme Court’s admonition that “injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” _The court in the Ohio case conducted a thorough analysis of Title IXs enforcement mechanisms before determining that it does not have jurisdiction to conduct pre-enforcement review of the Department of Educations policy. Title IX expressly provides educational institutions with the ability to appeal to the federal courts after the agency orders withdrawal of their federal funding for violations of Title IX. The court determined the availability of post-enforcement judicial review precludes earlier review. The court drew parallels between Title IXs statutory provisions governing enforcement actions and judicial review to the analogous provisions in another statute (the Mine Act) that Supreme Court concluded similarly precluded pre-enforcement judicial review, while distinguishing it from another statute (the Clean Air Act) in which the Supreme Court permitted pre-enforcement judicial review. We now have two district courts with competing positions on whether the Department of Educations transgender policy is vulnerable to injunction. Showdown!
This week, jurors in San Diego will decide if San Diego State University committed unlawful retaliation when it fired womens basketball coach Beth Burns in 2013. At the time, Burns was a veteran head coach with a long success record and who had just posted a record number of season wins. She was also just nine months in to a 5 year renewed contract, and was making well over 200,000 a year. Her past performance evaluations praised her for running a solid program and doing an "excellent job." So why was she fired? That is what the jury will have to decide after todays closing arguments summarize a month-long trials worth of testimony. At the time Burns was fired, university officials cited as "sole cause" for her termination an incident in which she slapped her assistant coachs knees with a clipboard as they watched a game from the sidelines. At trial, however, witnesses for the university testified that Burns had a long history of treating her colleagues and employees with anger and disrespect. Burns, on the other hand, testified that she was fired because she blew the whistle on unequal treatment for the womens athletics, including her team. Reportedly, a key piece of evidence in her case is an email between the (then) athletic director and a former university vice present that describes Burns as "driving us crazy w complaining." Other questions raised a trial include: Why did the former athletic director destroy the notes of a key meeting about Burns with a university vice president? What did the president mean when he brought up Bobby Knight (former Indiana coach famous for his temper) in his testimony? Was Burns sabotaged by a member of her own staff who was working in cohorts with an associated athletic director to create a biased record of the coachs behavior? And of course, the question of whether the the university can credibly claim that Burns was fired for "misconduct" begs the question, was her conduct in fact a departure from athletics-cultural norms? (As one witness testified, "What most people call yelling, we (in athletics) call communication.”) The jury is expected to receive the case on Tuesday, and will take however long it needs to render its verdict, to which nine of twelve jurors must agree. Note: This is not the first retaliation case weve blogged about against San Diego State. In 2007, the university was sued by a former womens swim coach. She alleged that she was fired for complaining about gender inequality and sexual harassment. The university claimed that she was fired for poor performance, though, remarkably, the athletic department had closed the pool for seven years, making it difficult to produce a winning record! Eventually the university settled for $1.45 million dollars.
A transgender student in Kenosha, Wisconsin, has won a temporary injunction against the school district that will permit him to use the boys bathroom in accordance with his gender identity while a court decides the merits of his claim that exclusion violates his rights under Title IX and the U.S. Constitution. Because the plaintiffs birth-assigned sex is female, his high school had been insisting that he either use the girls restroom or an out-of-the-way single-user facility. Additionally, the school made headlines last spring when they reportedly announced a policy that transgender students would have to wear green wristbands to help school officials determine any bathroom infractions. (It is not clear to me whether this policy actually took affect.) Earlier this week, the court denied the school districts motion to dismiss the plaintiffs case, which allows the case to proceed to the next stage of litigation, and eventually a judgment on the merits or a trial. Then, it granted the plaintiffs motion for a preliminary injunction, which grants him access to the boys bathroom while his case is pending. The legal standard for a temporary injunction requires the court to decide that the plaintiff is likely to win on the merits, as well as that he will face irreparable harm if the relief he requests is delayed. On the second point, the judge reportedly considered experts testimony about the psychological harm that transgender individuals experience when their gender identity is denied. Last year a transgender student in Virginia won a court order that permitted him to use the bathroom according to his gender identity, but the Supreme Court issued a stay that delays the effective date of that order while it reviews the case. Notably, however, the Supreme Courts stay did not involve a preliminary injunction and addressed a case that was further along in litigation than the Wisconsin case. So the issuance of a stay in that case does not necessarily dictate a similar outcome here.
As an alumna of the University of New Hampshire, as a scholar of sports, as an educator and advocate for education, I am disappointed in the universitys choice to spend $1 million of a $4 million donation to a scoreboard for the new football stadium. The gift is from the estate of Robert Morin, an alum and employee of the school who spent his 50-year career as a library cataloger. People were shocked that Morin had accumulated such an amount throughout his life and then that he left it all to the university. It gave many of us those warm, fuzzy feelings about our alma mater or respective alma maters. Morin only restricted $100,000 of the donation--earmarked for the library--so UNH technically did not violate any restrictions on the money, though many, myself included, believe they violated the spirit of the donation. Another million lost in the football arms race. Wasted by an institution trying to be something it is not--a big-time football school. I have complicated feelings about the morality of football, especially college football, in an era of academic and recruiting scandals and a moment when we must acknowledge the trauma of the sport, and the disproportionate effect of that trauma on poor men and black and brown men. But I am not inherently opposed to some of the money going to the football program. I am opposed to it going to a scoreboard which, in the age of planned obsolescence, will be out of date in 5? 10? years. Use it to endow a scholarship for a player who wants to go grad school maybe. For tutoring or other academic enrichment opportunities if you want to use the money in athletics. Pay it forward; make it meaningful. In addition to the fact that this spending seems neither fiscally nor morally responsible, it may have Title IX repercussions. I have not seen the scoreboard nor have I seen the athletic departments budget this year, so I cannot say for sure, but if that scoreboard can only be used for football, it is benefiting only male athletes. Even if it can be used for other sports, it still likely benefits more men than women. So I am wondering if the university has earmarked $1 million that will go towards increasing the quality of the experience of 120ish female student athletes. New turf for the field hockey team? Chartered flights for the soccer team? Yes, because Morin did not earmark most of the money, the university could spend it in athletics. But spending money in athletics comes with its own set of rules--including compliance with a federal law.
Today the Department of Educations Office for Civil Rights announced an agreement with Frostburg State University in Maryland that will obligate the university to address violations of Title IX revealed by an OCR investigation of 40 incidents of sexual harassment and sexual assault that the university had a responsibility to address. In a press release, OCR summarized some of the universitys violations as follows:
Required reporting by mandatory reporters that were not made even though they had notice of an alleged rape.
Reported off-campus incidents and incidents involving non-student victims or perpetrators that were not investigated or were not fully investigated.
Repeated violations of a no contact order that were not properly addressed and adequate steps to safeguard the victim were not taken.
Sufficient interim measures that were not provided to victims.
Requests for confidentiality that were not balanced against the need to keep the community safe.
Title IX investigations that were not launched due to an improper reliance upon local or campus police investigations and reports.In addition, the university resolved a complaint informally that should have gone through a formal hearing process, and took 10 months to resolve another. In one case, the university failed to conduct its own independent investigation of a matter that it instead referred to local law enforcement. And while recent revisions to the universitys policy for addressing sexual harassment and sexual violence complaints addressed most of the earlier shortcomings, some deficiencies remain. In the agreement, the university agrees to bring its policies into compliance, conduct additional training, reimburse two complainants for the cost of counseling and academic services that the university should have provided, address identified failures to conduct adequate investigations, provide written notice of remedial services, and provide written notice of the outcome of the complaint investigation to the parties, conduct its own retrospective review of sexual harassment complaints to determine whether the investigation was prompt and equitable, and enhance its outreach and climate assessment efforts.