- Springfield, Massachusetts Middle School Could Stand Trial Over Student's Sexual Assault
- Court Dismisses Sexual Assault Case Against Northwestern
- Huntsville-Alabama Title IX case and how we understand violence and athletes
- OCR Finds Title IX Violations at Princeton
- Alcorn State Football Player Remains Eligible Despite Prior Sex Offense
- Sexual Assault Litigation Roundup
- Jury Sides With School District in Basketball Hazing Case
- Former University of Toledo Softball Coach Files Discrimination Suit
- Department of Education Releases New Clery Act Regulations
- Attorneys Fees Awarded to Prevailing Plaintiffs: An Example from Delaware State
- Another California School District Settles Title IX Case Over Harassment and Discrimination of Transgender Student
- In my inbox: Trans students at women's colleges
- Comparing Universities' Response to Charges of Sexual Assault -- What a Difference a Year Makes?
- Football season cancelled in NJ
- Settlement in Seattle sexual assault case
- Title IX Invoked in Early Efforts to Protect Rights of Female Athletes at Alabama, Berkeley
- Catholic Diocese in PA Bans Schools' Participation in Coed Sports
- California Requires Affirmative Standard for Consent to Sex at State-Funded Colleges and Universities
- Results of an investigation: The SUNY system
- Intercollegiate football <--> NFL: The case of Jameis Winston
- Ninth Circuit Affirms Title IX Win Against California School District
- White House Unveils New Public Awareness Campaign Aimed at Campus Sexual Assault
- Do Competitive Spirit Competitions Offer Athletic Opportunities that Count Under Title IX?
- Opportunity for Emerson
- OCR Concludes Compliance Review of Ohio State
A federal district court judge in Massachusetts denied the Springfield School Committees motion for summary judgment on a Title IX filed by the mother of a female student who was sexually assaulted by a male classmate at Duggan Middle School. The mothers complaint alleged that school officials were on notice due to a prior incident of inappropriate sexual contact by that same male student. After that initial incident, teachers separated the students and ensured no further contact for the remainder of the school year. But the next school year, both students were placed in the same class and no warning provided to their teacher about the prior incident. The teacher allowed the students to be unsupervised together, which the male student took as an opportunity to commit sexual assault on two occasions. The court determined that the mothers allegations on behalf of her daughter state a claim for institutional liability under Title IX, which requires plaintiffs to prove that school officials had notice of a threat of sexual harassment or assault and responded with deliberate indifference. Applying this standard, the judge determined that, despite the school officials initial vigilance, their failure to provide any continuity the following year could, if proven, satisfy the standard. The next step in this case will likely be a conference to set a timeline for trial. In many cases, however, surviving the defendants motion for summary judgment provides the plaintiff with greater leverage for a settlement.
A federal district court in Illinois has dismissed a female students lawsuit against Northwestern University that alleges the university did not adequately respond to her report of sexual assault by a professor. The student claims that when she was a freshman, philosophy professor Peter Ludlow plied her with alcohol and took her to his apartment where he proceeded to kiss and grope her and sleep with her in his bed. The student reported this to another faculty member who informed a university official responsible for sexual harassment prevention. That official conducted an investigation and concluded that the student could not have consented to the professors advances because she was intoxicated. In her lawsuit against Northwestern, the student argues that, at that point, Ludlow should have been terminated. The court, however, disagreed that Title IX required Northwestern to take that particular step. The legal standard for institutional liability in a Title IX lawsuit for damages is that the university respond to notice of sexual harassment with "deliberate indifference." Here, the university sanctioned Ludlow by putting him on leave, denying him a pay raise, prohibiting from having contact with the student in question and prohibiting his social contact with students overall. Even though the universitys response continued to cause the student "considerable grief," it did not qualify as deliberate indifference so as to give rise to liability. The court also denied a second claim that the university took retaliatory action against the student, finding no allegation that the adverse action the student alleged (namely, that she was rejected for a fellowship) was causally connected to her reporting the professors assault. Decision: Ha v. Northwestern Univ., 2014 WL 5893292 (N.D. Ill. Nov. 13, 2014). Though the students lawsuit against Northwestern has been dismissed, other litigation involving Peter Ludlow remains pending, including a a civil lawsuit that the student has filed directly against Ludlow under the Illinois Gender Violence Act. Meanwhile, Ludlow has filed various lawsuits of his own. In one, he sues the university alleging that it discriminated against him in violation of Title IX in the way it handled the investigation and sanctions in the students case discussed above. This lawsuit also charges discrimination in the universitys response to a _second_ students allegation of Ludlows sexual misconduct. Ludlows other pending lawsuit is against that second student for defamation. The defamation case has raised concerns about the potential chilling effect that the threat of litigation could have on students willingness to come forward and report sexual misconduct, especially when the accused individual is someone like a professor with the means and resources to respond with a lawsuit of his own. One way universities could respond to this is to promise to indemnify those students who blow the whistle on sexual misconduct, meaning, that the university would defend them in court and cover any damages assessed. While some worry this system could operate to let a student get away with filing a false claim of sexual misconduct, the argument in favor of indemnification posits that its a far worse problem to allow the accused to leverage the fear of litigation to keep victims quiet. It does not appear that any institutions have such an indemnification policy, so it will be interesting to see if the example of Ludlows defamation case against the student prompts any to adopt one.
Erin has already written about the sexual assault case in Huntsville, but I want to put it in the larger context of what I have been seeing, thinking, and discussing. We have been hearing a lot about sexual assault and intercollegiate football of late (Florida, FSU, Missouri) in addition to the domestic violence allegations against professional football players. Also still in the news is the campus (and spreading) activism about sexual assault in colleges. These are not separate issues, even though they sometimes are covered and discussed in different spaces and places--including different sections of the newspapers and different television stations. But these differences, in presentation, speak to the visibility of the issues. In the movement to fight against and seek awareness of campus sexual assault, the voices and images have been dominated by young women. There has been a concerted effort on the part of activists, like those involved in Know Your IX, to ensure that these are not just white women, or even just women. However, looking at the coverage of perpetrators in stories about sexual assault activism we see something much different. In the cases of sexual assault by male college students (who are not athletes) we dont see much at all. Their identities remain--in the media at least--largely invisible. This is somewhat unusual given that the media usually protects victims identities. But in the stories of women who come forward to protest their treatment by and at their schools, the men remain unidentified and their race is presumed to be white. This is not a criticism of the media coverage, rather an observation--an observation that emerged out of the coverage of male student-athletes who commit sexual assault. The picture we see in these situations is of assailants and not victims. The assailants have been football or basketball players who are Black men. The similarity--no discussion of race. We know that men of any race can be perpetrators, but the majority of perpetrators being named and seen are Black men, who are athletes. This perpetuates the stereotypes of Black men, especially Black male athletes, as inherently violent. This is not to say that these men are innocent or that the schools have handled these cases well; the latter is certainly not true--but that the picture skewed. This is why the Huntsville case was an interesting interruption of sorts. Yes, a student athlete, but a hockey player. Again we know that hockey players can commit violence against women too (there are several current cases in the NHL), but we have not seen them in the coverage of sexual assault. And the athlete is white. (He is foreign-born, which of course does not negate his whiteness, but provides some complication of the good American white boy athlete image that runs in contrast to the violent Black athlete.) This case, despite being just as egregious as the ones we have heard so much about, received much less media attention. One might argue that this is because college hockey is not as popular a sport as college basketball and football (though as UNH alum, Erin and I might disagree) or he is not a high-profile athlete. Besides Jameis Winston, though, none of the other accused student-athletes have been national names. I am glad that the Huntsville case was resolved and wish the others were being better handled, but in addition to questioning how these cases are being handled, we need to question what we are seeing (and not seeing).
The Department of Educations Office for Civil Rights announced yesterday that it has entered into a resolution agreement with Princeton University after finding that the university violated Title IX in the manner on which it handled reports of sexual assault by students. OCRs findings derived from an investigation that was prompted by three complaints that the agency received from students who alleged to have been sexually assaulted on campus in the 2009-10 and 2010-11 academic years. The agreement obligates Princeton to correct aspects of its policies and procedures that resulted in the institutions failure to promptly and equitably respond to its students reports of sexual assault, including instituting the correct “preponderance of the evidence” standard to investigate sexual assault and violence allegations, ensuring that parties have symmetrical rights to appeal, and to provide prompt time frame of generally 45 days in which such matters should be handled. Princeton is also obligated to re-visit all complaints of sexual misconduct that it received from the 2011-12 school year until now and evaluate those cases for whether its own response complied with Title IXs "prompt and equitable" standard as well as the institutions obligation to provide interim measures to the victim and address any hostile environment or retaliation experienced by the victim. Princeton must submit its review to OCR by February 1 of next year, and must also take "appropriate action to address any problems that it identifies in the manner in which these cases were handled." According to the agreement, such appropriate action could include providing the victim with counseling or other support, an academic adjustment, or even reimbursement of educational expenses. By way of example, I could imagine that if the victims grade suffered as a result of the university taking too long to resolve her case, appropriate action might be revising her transcript as if she had withdrawn from the course. Or if hypothetically the victim suffered repercussions from the universitys botched response to her sexual assault that it ended up taking her longer to graduate, or if she had to move out of the dorm and lose her housing deposit because the university failed to take proper interim measures, then reimbursement of these added costs could be appropriate. One thing that resolution agreement makes clear, however, is that the university is not expected to re-open disciplinary matters that have already been concluded, even if it finds that the process was flawed in ways that could have been material to the outcome. Even though the idea of rehearing is appealing from a fairness perspective, Im guessing OCR considered this possibility to be too disruptive to peoples settled expectations -- perhaps even including the victims -- and not worth that emotional cost. All things considered, OCR seems to be saying that the best way to address problems with past sexual assault hearings is to acknowledge them, help the victim if possible, but leave the result alone.
Inside Higher Education reported today about the controversy surrounding football player Jamil Cooks who was recruited by Alcorn State after committing sexual assault at his prior institution, the Air Force Academy. This week the NCAA confirmed that his eligibility to play for Alcorn State is not affected by his status as a sex offender and that the association leaves it up to individual institutions to make decisions about whether to admit a student with a criminal record. When the reporter for this story asked me about possible Title IX implications for Alcorn State, I immediately thought about Williams v. University of Georgia, a case in which a student who was gang-raped by a group of student athletes sued the school under Title IX. A federal appellate court agreed that she had a strong enough case to make it to trial, since it was possible for a jury to conclude that the university met the standard for liability, which consists of notice and deliberate indifference. The plaintiff argued that the institution was on notice of the threat posed by one of the players who was recruited after had been dismissed from his prior institution for sexual assault. Alcorn State would appear to be on notice of a similar threat; after all, as noted by Inside Higher Education, about 90 percent of campus sexual assaults are committed by repeat offenders. If Cooks re-offends at Alcorn State, the institution would certainly face a lawsuit in which the victim would argue that Alcorn State is liable for damages for having recruiting a known sex offender and not taking any precautions to ensure the safety of other students. The only thing that would save Alcorn State from a hefty damages award or settlement (University of Georgia paid a six-figure settlement) would be if it could somehow convince the court that its officials did not act with deliberate indifference towards the risk, like maybe if they subjected Cooks to supervision, or made him take sexual assault training, or had him on some probationary status. Such precautions would not necessarily be sufficient, but if, as I suspect, Alcorn State is not taking _any _steps to address the risk Cooks poses to others, keeping him on the team is -- as I said to the reporter -- a "ticking time bomb" of Title IX liability.
Universities response to sexual assault allegations have generated several lawsuits lately. Here is a round-up: * A female student sued the University of Alabama at Huntsville, alleging that campus police violated Title IX when they discouraged her from pressing charges against a male student -- a hockey player -- who had raped her. (The player has since confessed and left the country for his native Finland.) She also alleged that the university officials responsible for the campus judicial system violated her rights under Title IX. After she prevailed in an initial hearing that determined that he was responsible for rape and should be expelled, he appealed this ruling to the associate provost, who allegedly delayed his decision until the end of the hockey season and then downgraded the sanction to a two-month suspension. * Two students, a male and female couple, sued the University of Houston to challenge the fact that they were expelled after having been found responsible for sexual misconduct against another female classmate. That classmate reported that the male of the couple had sexually assaulted her and the female of the couple had caught them on videotape and then left her naked in the hallway of their campus apartment building. The expelled students claim that their due process rights were violated in the manner in which they were expelled. * A male student expelled from Occidental College for sexual assault has filed a Title IX complaint with the Department of Education as well as a lawsuit against the college. After a disciplinary proceeding found him responsible on the grounds that she was incapacitated by alcohol to have provided consent, he filed a sexual misconduct charge against her on the grounds that he, too, was intoxicated. He claims that the colleges failure to process his claim demonstrates discrimination on the basis of sex.
Earlier this month, a federal jury in Tennessee delivered a verdict in favor the Rutherford County Board of Education, which had been sued by the family of three girls who alleged they were harassed and retaliated against when they complained that another member of their high school girls basketball team had poking them in the buttocks (a practice described during the litigation as "goosing" or "cornholing"). In August of this year, we noted that a federal judge had cleared the way for trial by denying the boards motion for summary judgment, a ruling that the plaintiffs could potentially prevail if their evidence was persuasive to a jury. But after the trial was held this month, the jury was apparently not persuaded that school officials responded inadequately to their reports of the incident, and that they had appropriately disciplined the offending player. Jurors apparently also believed the schools explanation that the girls had been kicked off the team for missing practice, not in retaliation. According to the press, one of the plaintiffs six claims did prevail but the jury found damages in the amount of only one dollar. (The court records are sealed because of the minor status of the plaintiffs, so I could not investigate further as to which claim this may have been.)
Last week, the former softball coach at the University of Toledo filed a Title IX lawsuit against the institution in federal court, alleging that she was the victim of sex discrimination and retaliation and seeking damages and reinstatement to the position from which she alleges she was forced to resign. The coach, Tarrah Beyster alleges that she advocated for gender equity in her athletic department including by challenging: the disparity in multi-year contracts, which were granted to male coaches, and other gender-based pay inequity; the departments failure to assign a long-term grad assistant to the softball team like it did for the baseball team; preferential treatment for the baseball team in allowing it to keep the revenue from renting out its field; the departments failure to provide the dirt for the field or a new backstop to the softball facility, despite providing both to the baseball team; the departments requirement that the softball team to do its own fundraising to bring the outfield fence into compliance with NCAA regulations; and the singling out of softball to share a locker room with other teams, as well as requiring female coaches to share a locker room with referees and officials. Beyster alleges that, after raising these concerns, she endured retaliation in the form of a hostile work environment -- a former associate athletic director called her "Coach Bitch" -- as well as being charged with insubordination at a surprise disciplinary hearing in which she was forced to resign. She further claims that the "insubordination" charge is pretext for retaliation by alleging that other coaches have engaged in more egregious offenses, like having relationships with their students, without being fired. Retaliation claims by coaches and administrators are increasingly common in college athletics, especially in the wake of a 2006 Supreme Court decision affirming the statutes application to retaliation, and plaintiffs have successfully obtained verdicts or settlements in a number of them. For examples, see here, here, here, here, here, here, here, here, here, and here.
Yesterday the Department of Education released new regulations implementing the revisions to the Clery Act imposed by Congress when it reauthorized the Violence Against Women Act last year. The Clery Act requires colleges and universities to report statistics on crime that takes place on campus and in related areas. Specifically, VAWA required that Clery’s existing requirement to include sex offenses like rape and sexual assault in their annual security reports be expanded to include other sex offenses including dating violence, domestic violence, and stalking. VAWA also required that colleges and universities include in their reports information about their policies and procedures for preventing and addressing those offenses when they occur.
The Department of Education’s job in promulgating regulations was to flesh out the details of those requirements, such as by providing definitions of the newly-included sex offenses, as well as the content to be included in the institution’s disclosures about policies and procedures. The process of creating those regulations began last year when a committee of experts representing a variety of stakeholders convened to help negotiate a draft of these proposed rules. In June, the Department published the draft and opened it for public comment. The final rule announced yesterday contains no surprises in the form of major departures from the earlier-published draft. It does include insight into the agency’s reasoning for rejecting suggestions from commenters that certain changes be made.
Here are some highlights of the new regulations: _ITS ALL ABOUT THE DEFINITIONS. _Definitions are a big part of the new regulations, which seek to ensure that institutions are reporting on crimes and offenses in a consistent manner. However, the Department pushed back on suggestions that the regulations provide a uniform definition of consent as it used in the description of sexual assault and other sex offenses. For one reason, an institution’s annual security report must include all offenses that are reported, not only those that result in discipline that turns on a precise finding of the lack of consent. For another, states use different definitions of consent in their own laws, a fact that could cause confusion and make reporting more burdensome for institutions in those states whose definition differs from whatever definition the Department could have required. I think, in addition, that Title IX enforcement provides some assurances that institutions wont vary too dramatically from suggestions the Department of Education and the White House have already provided (here and here, e.g.) for defining consent as voluntary, revocable, not implied by past relations, and not applicable where the individual is impaired, unconscious, or asleep._TRANS-INCLUSIVE SECURITY REPORTS_. The requirement that colleges and universities report statistics on hate crimes has been amended to include crimes motivated by the victim’s gender identity, which should lend visibility and transparency to campus violence targeting transgender and gender-nonconforming people. _PREVENTION AND INTERVENTION MUST BE ADDRESSED_. Colleges and universities must describe their “primary prevention and awareness programs” related to sexual violence, including the institution’s policy prohibiting such conduct, its policies and procedures for dealing with sex offenses that are reported, and its ongoing efforts to promote bystander intervention and prevention. In requiring efforts aimed at "primary" prevention the Department is signaling that it requires institutions to go beyond informing students how to keep themselves safe, but to target and prevent "primary" offending behavior itself. _NO STANDARD OF EVIDENCE REQUIREMENT._ The regulations’ requirements for the substance of disciplinary procedures that must be included are compatible with the Department of Education’s interpretations of Title IX in that both require institutions to provide symmetrical rights to the victims and accused. One difference, though, is that the new Clery regulations do not require institutions to use any particular standard of evidence during a disciplinary proceeding (only that they report whatever standard they use). The Departments analysis makes clear that "A recipient can comply with both Title IX and the Clery Act by using a preponderance of evidence standard." Still, I regret that the Department has missed an opportunity to elevate the preponderance standard from a requirement imposed by agency guidance (which can easily be revoked by a subsequent presidential administration) to the status of binding regulation that is more difficult to change. _ATTORNEYS MAY SERVE AS ADVISORS_. Another controversial issue addressed in the Clery regulations regarding the disciplinary process is the role of the advisors to both the victim and the accused. The regulations require institutions to allow students to be represented in the process by an advisor of their choice, and any restrictions on the advisors role must apply symmetrically to both parties. Some commenters argued that the regulations should prohibit attorneys from serving as advisors, in order to prevent the process from becoming judicialized and potentially more complicated, expensive, and unfair to whichever side cannot afford an attorney. The Department thought those concerns were best addressed by institutions in their decision on whether and to what extent to limit the advisors role. These regulations are effective as of July 1, 2015, but should likely inform institutions existing efforts to comply with the amended Clery Act, which has already gone into effect.
The American judicial system typically requires each party to pay their own way when it comes to attorney fees -- in contrast to, say, the British system that has a "loser pays" approach. The American system can make it difficult for individual plaintiffs to get justice in some cases. If the plaintiff is seeking large monetary damages, she may be able to make an arrangement to pay an attorney on "contingency" or out of the proceeds of the case. But if the plaintiff is seeking non-monetary relief, such as an injunction, this is not possible, and either she, or a pro bono attorney, would have to bear that cost. Fortunately, a statute applicable to civil rights laws litigation permits courts to make exceptions to the "pay your own way" American rule and require defendants to pay for the plaintiffs expenses of hiring an attorney and litigating the case. Sometimes, there are disputes about how much is reasonable to expect the defendant to pay, and those cases end up producing litigation themselves (and thus, get on my radar for possible fodder for blog). Thats what has happened in the Delaware State litigation. You may recall the litigation challenging the universitys decision to discontinue its womens equestrian team. In approving a consent decree to settle the case on plaintiffs terms, the court ordered the university to pay the plaintiffs attorneys fees -- not only for the cost of litigating the case, but also for the cost of continuing to monitor the consent decree. When the plaintiffs lawyers -- which include the nonprofit Womens Law Project -- requested fees for monitoring the consent decree from Delaware State, Delaware State argued that some of the things they had charged for were not reasonable. Recently, the district court rejected Delaware States argument and ordered it to pay what the plaintiffs had requested -- a total of $77,293.64. This was on top of the $475,442.21 that Delaware State had to pay the plaintiffs attorneys back in 2010 to litigate the case in the first place. The substance of this particular dispute over attorneys fees, as well as the result, is not particularly unusual or noteworthy, but I offer it here as an example of this important aspect of civil rights litigation. The ability to recover attorneys fees to litigate a case makes it possible for plaintiffs and their lawyers to afford the cost of seeking justice. Moreover, that Delaware State has had to pay over half a million dollars -- in a case that settled even before the lawyers had to litigate motions for summary judgment, a trial, or an appeal, no less! -- also serves as a cautionary tale to erstwhile defendants that even where money damages are not on the line, it doesnt pay to discriminate. Decision: Foltz v. Delaware State Univ., 2014 WL 4954304 (D. Del. Sept. 30, 2014) (awarding attorneys fees for continued monitoring of consent decree).
The Department of Education announced this week that it has entered into a resolution agreement with the Downey Unified School District. The Department had been investigating a complaint filed on behalf of a transgender student who has consistently asserted aspects of her female gender identity since enrolling as a kindergartner in the Downey public schools. The complaint alleged that while she was an elementary student, the student was the subject of discrimination on the basis of gender identity when school officials disciplined her for wearing makeup when other female students were allowed to do so. As part of her punishment, she had to write a letter of apology for making male students uncomfortable. She was also allegedly the victim of verbal harassment including being called homophobic and sexist slurs by other students on the bus, to which school officials failed to adequately respond. After she fully transitioned to female during her fifth grade year, school officials refused to use her female name. While some things improved when the student graduated to a middle school that respected the students gender identity, name and pronouns, the student was still subject to peer harassment and the complaint suggested some school-wide measures that were not taken to try foster a more tolerant and inclusive climate. Based on her experiences in elementary school and middle school, the student wanted assurance going forward that high school administrators and faculty will be responsive to harassment, respectful of her gender identity and expression, and willing to treat her just like any other girl. The resolution agreement addresses the students concerns for the future by requiring the school district to "continue to treat the student the same as other female students in all respects in the education programs and activities offered by the District, including access to sex-designated facilities for female students." The district is prohibited from disciplining the student from "appearing in a manner that does not confirm to stereotyped notions of masculinity and femininity" and must remove all past such disciplinary notations from the students records. Additional measures the school district will have to undertake include hiring a consultant to help the school address the climate issues giving rise to harassment, conducting mandatory training for district administrators to ensure they are responding appropriately to gender non-conformance- and gender-based harassment, and reviewing its policies to ensure that transgender students are provided every opportunity to participate in all programs "in a manner that does not discriminate based on sex, gender identity or gender expression." Like the Arcadia school district resolution, which was similar, this resolution is an important signal of a school districts obligation under Title IX to protect equal rights of transgender student. While the requirements that school districts appropriately respond to gender-non-conformance-based harassment is not a new or groundbreaking application of Title IX, other aspects of the resolution are cutting edge. In particular, the requirement to treat transgender student like any other girl with respect to sex-designated facilities is part of an emerging definition of sex discrimination that enhances Title IXs effectiveness to challenge transgender students exclusion from the bathrooms, locker room, dormitory, or sports team that comports with their gender identity.
It was a trans-centric day for my email inbox. First I received this petition from change.org asking Smith College to adopt a more trans-inclusive admissions policy. This is somewhat similar to a petition from last year that was protesting the denial of admissions to a transwoman because her FAFSA identified her as male and after she was told by someone from Smith that this would not be an issue. The change.org petition, created by a group called Smith Q&A, actually includes a recommended admissions policy which they modeled after the one Mills College (in California) recently adopted. It is asking the administration to change its policy requiring female gender markers on transcripts and letters of recommendation for transwomen seeking admission to the college in light of the constraints--legal, emotional, cultural--that transwomen face regarding "official" change of gender or even being out as a transperson. Interestingly, the recommended admissions policy does not extend its categories for admission as far as the one announced earlier this fall by Smiths Pioneer Valley neighbor, Mt. Holyoke College. Though the policy created by Smith Q&A does allow for women who transition to men while on campus to remain on campus and enrolled, it does not allow for those men who are seeking admissions after already or in the process of transition. I suspect that Smith administrators and trustees will be addressing this (publicly) before the end of the academic year given the attention the MHC announcement received (and the comparisons being made to Smith) and because other womens colleges are also grappling with this issue... One of the other emails I received today was from a student who was pointing me towards this NYT article about transmen at Wellesley. Similar to what is happening at other womens colleges, transmen are becoming a more visible part of the student population with some transitioning while at school and others entering somewhere along their (own personal) transition process. And this visibility has some people quite concerned. If womens colleges are for women, as some point out, what does it mean when students who do not identify as women are entering leadership roles on campus? One student whom the story focused on entered Wellesley knowing he was transmasculine but was not out to his family and checked female on the admissions application. He chose the school because he felt it would be a safe space for him. This is an issue being raised as part of the discussion. It is not simply about who womens colleges are for? But what are womens colleges for? What is their mission in the 21st century? These are the questions womens colleges should be asking themselves--and many seemingly are doing so already. And this is an issue that exists in sports as well. Erin and I have explored the role of womens sport spaces and their role in womens community as part of our research. We looked at recreational sports and the history of womens-only rec sports asking similar questions. Who is this for? What purpose does it serve? What changes occur when transmen are included in these spaces? Interestingly I see parallels in the historical missions of many womens colleges and womens-only sport spaces. They were created as an environment (relatively) free from male influence, to empower women, to provide access to something that had been historically male-dominated. I understand why the presence of transmen feels threatening to some of these institutions, but I think more soul-searching needs to be done and more external searching for multiple voices from many constituencies about the meaning and purpose of womens spaces in our culture.
Last week, the day after he came off the bench to lead the University of Florida to a 10-9 victory over Tennessee, quarterback Treon Harris was accused of sexually assaulting a female student on campus in the early morning of Sunday, October 5. The following day, the University announced that campus and local police were working together to investigate forensic evidence, and that it was suspending Harris from the team in the meanwhile. Citing "no tolerance" for sexual assault, University president Bernie Machen vowed that student safety was the institutions top priority. But last Friday, Harriss accuser withdrew her complaint. The university reinstated Harris and he is expected to be back on the field this weekend. Meanwhile, 150 miles away in Tallahassee, Florida State is struggling to get a handle on its own controversy arising from allegations of its quarterbacks sexual assault controversy. This week Fox Sports News reported on evidence seeming to suggest that FSU officials and Tallahassee police worked together to delay turning over the case to the state prosecutor and give a "head start" to the attorney for accused Jameis Winston. Moreover, the universitys own public statement released in advance of that report as preemptive damage control may have backfired in that it has provided ammunition to the victims attorney to point out that the university athletic departments early role in the Winston case was concealed from other branches of the university like its Title IX office. What do we make of these two Sunshine State examples, in close proximity of time and space, but otherwise worlds apart? For one thing, I dont think well ever know what prompted a student to accuse Harris of sexual assault and then withdraw that complaint. One possibility is that she deliberately filed a false charge against Harris and then later had a change of heart; at the other extreme, its possible that she a victim two-times over -- first of sexual assault and then of social pressure to stay silent. Or, maybe she was deterred from standing by her initial accusation after weighing the downside of going forward and having to deal with upheaval that Winstons accuser has faced, against the downside of going without justice. If either of those last two possibilities reflect the truth, this case represents that we still have a ways to go as a society in terms of the support we provide to victims and the respect we give to their privacy. Yet by comparing University of Florida to Florida State, we might also come to a tentative conclusion that at least university culture is moving in the right direction in its response to sexual assault and the prioritization of student safety over athletics. Even though the charge was later withdrawn, and even though we dont know why, what the University of Florida did when it _had _the charge seems, from what we know, to have been the right thing. Declaring "no tolerance" for sexual assault was not a rush to judgment against Harris but an explanation for the universitys prompt response, transparency, and decision to suspend Harris as an appropriate interim measure to protect the students safety. Whatever remains uncertain about Florida States response to the charges against Winston, it is clear that its response was distinguishable from that of University of Florida under similar circumstances. Maybe we chalk that distinction up to the difference a year makes -- especially a year as big as this past one has been for public attention and legal scrutiny into to the problem of campus sexual assault.
There is no Friday night football game tonight in Sayreville, New Jersey. The school board cancelled the season earlier this month after systemic hazing of first-year football players came to light. More details are sure to emerge as an investigation into the incidents, which took place in the team locker room, allegedly unbeknownst to coaches or any other school staff person. This is not a Title IX case yet (and it may never turn into one) but some parents have hired lawyers and because the hazing was sexual in nature, the incidents described surely fall under the category of sexual assault. According to various reports, upperclass players would come into the locker room, turn off the lights, and grab a first-year player and then use a finger or some other object to anally penetrate the player (who was being held down). Sometimes the player was forced to suck on whatever had been put in him. The outrage over the cancelled season among some members of the community, including students, is especially disappointing. One, it speaks to the idea that football is a right and not a privilege--even when you are a highly successful program (making the playoffs for the past 20 years). Two, it trivializes sexual assault in two ways: when it occurs amongst boys (something recently addressed by the federal government in its new sexual assault laws) and when it occurs under the guise of hazing--a ritual required for admission to a group. And finally, in regards to students, these are young people who may be heading off to college in a few years, where the issue of sexual assault is being taken (more) seriously. So in regards to the female student who said "things have been blown out of proportion.We know the players, and hazing, to them, they didnt mean it in that way. It was more like being friends"--well the idea that talking about and reporting and punishing sexual assault is blowing things out of proportion is a paradigm that is shifting. And non-consensual digital anal penetration is not something that happens between friends.
The case of a high school student who was raped during a school field trip has settled out of court. The Seattle Public Schools initially tried to downplay and dismiss the students story that she was assaulted by a student-athlete on an overnight field trip when she was 15--despite the medical evidence that indicated sexual trauma. The student and her family continued to fight the school system, even when they moved out of state; and the story began to earn nationwide attention even as the school finally began a more substantive investigation. I wrote about the details of the case, the parents advocacy, and the schools response at the end of the summer so I will not rehash them here. The school district has agreed to a $700,000 settlement (which still needs to be approved by the school board) even though their investigation has not yet concluded.
A couple of Title IX stories about womens college athletics caught my eye this week. Here is a brief roundup. First, a former womens basketball player at the University of Alabama is using Title IX to challenge the athletic departments allegedly discriminatory manner of allocating scholarships as well as a "fairly broad and comprehensive pattern of bullying, harassment, retaliatory conduct and institutional hazing," according to the attorney representing Daisha Simmons. The details of these allegation are not entirely clear, but the alleged retaliation and harassment are argued to have crystallized in the athletic departments attempt to block Simmonss request to the NCAA for a waiver that would have allowed her to play immediately upon transferring to another institution. It appears from this article that the players lawyer has filed a complaint with the university, as it is noted that the complaint triggers an internal investigation by the university. However, if the matter is not resolved internally the players attorney says the matter would likely "wind up in federal court." Second, some members of the womens field hockey team at the University of California - Berkeley are considering whether to file a Title IX lawsuit against the institution to challenge its failure to provide them with a field the 2015-16 season. The Bears are already playing without a home facility this season while their field is under construction, and recently found out that the displacement would last into next season as well. As a result of their displacement, the team has to travel to other facilities -- the closest of which are an hour away -- for both competitions and daily practice. All that time spent commuting time cuts into the players available time to take classes and engage in other aspects of student life. If the players pursue Title IX litigation, I predict that central issue will be whether Berkeley treats other mens teams differently when they are displaced for field construction, such as by doing a better job to minimize the length of displacement and finding better temporary facilities for games and practices. If the players dont have an argument along these lines, however, it is possible that a court would see this situation as one that is unfortunate but that does not constitute sex discrimination.
The Harrisburg, Pennsylvania Catholic Diocese has prohibited its schools from participating in coed sports where "substantial and potentially immodest physical contact" could occur. The policy, which also cites "safety" as a motivating concern, not only prohibits area Catholic schools from integrating their wrestling, football, and rugby teams, but also requires their teams for forfeit games or matches against (or against teams that include) opposite-sex opponents. The policy change, which went into effect this summer, coincides with a federal district court ruling earlier this year that acknowledged a female students right under the Constitutions Equal Protection Clause to try out for her public middle schools wrestling team. Because the Catholic schools of Harrisburg compete against public schools that would be subject to the ruling, it seems plausible that that the courts decision was at least part of the Dioceses motivation to enact its new policy. Are there any legal implications of the Dioceses new policy? After all, Catholic schools, by virtue of being private rather than government-run, are not subject to the Equal Protection Clause. Therefore, despite the fact that courts have repeatedly rejected the generalizations and stereotypes (like safety and modesty) that underlie most decisions to separate girls and boys in sports, such rulings are not binding on private schools like those run by the Diocese. Moreover, while Title IX would apply to any of those private schools should they happen to accept federal funds (such as, for instance, to run a school lunch program), Title IX is strangely permissive of the segregation of contact sports. Therefore, a student who opts in to private, Catholic education has no legal right to try out for teams designated for the other sex. But I also think about the rights of students at public schools whose athletic opportunities are limited by virtue of their schools decision to schedule competition against Catholic schools who are subject to this policy. Public school students, whose rights are protected the Equal Protection Clause, have the right to play on coed teams. And even though Title IX does not require a school to allow coed contact sports, schools that do allow it are prohibited by Title IX from discriminating on the basis of sex against those who make the team. When public schools schedule athletic competition against a school that is required to forfeit, that schools coed team ends up with fewer opportunities for competition compared to the teams that are not coed. Or, the girls on that coed team, who could possibly be benched or volunteer not to play in order to preserve the game, end up with fewer competitive opportunities. Either way, scheduling games against the Catholic schools creates discrimination against those teams that have a female participant (and thus, on the basis of in sex). In the interest of compliance with Title IX and the Equal Protection Clause, public schools ought to leave the Catholic schools off of their competition schedules. The law may not insist that private Catholic schools treat students equally on the basis of sex. But the consequences of a Catholic policy should not be allowed to impair the experience of coed participants at public schools.
This week the governor of California signed legislation putting into effect a requirement that colleges and universities receiving state funds define sexual assault as the absence of affirmative consent in their codes of conduct. Dubbed the "yes means yes" standard, the requirement for affirmative consent is meant to clarify what is often the murkiest element of sexual assault by clearly defining as nonconsensual any sexual contact that both partners have actively agreed to. The law also clarifies that someone who is drunk, drugged, or asleep cannot provide consent.While consent must be actively affirmative, it need not be express, as the law allows universities to include nonverbal expressions of consent, such as nodding ones head or moving in closer. On the other hand, consent must be revocable by either party at any time, and must be renewed for each encounter. Ive read many comments that criticize this challenge as an unrealistic expectation that is at odds with college students natural behavior. Yet at the same time, I noticed several indications of support for an affirmative consent standard among students whose colleges have already imposed one. One male student characterized the Grinnell College student body as generally enthusiastic about its affirmative consent standard that was adopted in 2012, while another male Grinnell student testified that he has worked in questions like "are you all right with this?" and "do you want to go further?" without it feeling odd. And on NPR last night, a female student at Occidental said affirmative consent was "already happening" in her experience, which has included getting questions like "are you good?" that have created openings for her to be specific about what she wants. Affirmative consent cant really be such a hopelessly unrealistic standard, then, if its garnered support among students in some places and is already happening naturally in others. Moreover, its worth pointing out that male and female students alike have entered the public discourse on this issue in favor of affirmative consent. Its possible that students of both sexes realize that just little questions like "are you good?" seem like a small price for the kind of clarity that reduces risks for both the asker and the receiver of such questions. And even if the critics are right, and affirmative consent is at odds with college students natural behavior, it is also worth remembering that its not worst thing in the world to challenge and support students to do better than they otherwise might and to cultivate character and emotional maturity than they have coming in. That is, already, a role that is undertaken by higher education in this country, and theres little reason why that role cannot extent to the issue of consensual sex as well.
We get asked a lot about what happens when OCR conducts an investigation of a schools sexual assault policies and procedures and what OCR will find and what they will require a school to do. Obviously before an investigation is concluded, we can only speculate based on what we know about the situation on campus and what OCR has done in the past. With so many schools under investigation we are hearing more about what schools have done to get themselves on the list and less of what becomes of them when an investigation is concluded. Erin wrote about the changes coming at OSU earlier this month, but usually we have to search to find out what OCR is requiring of a school. I found, though, this piece about how the SUNY system has been proceeding after OCRs investigation. The voluntary agreement SUNY (with 29 schools) has entered into requires yearly reports for the next two years that assess the situation at each campus and show what steps are being taken to address sexual assault and harassment. SUNY seems to be taking the agreement seriously noting that their tactics for addressing these problems differ across their campuses. So rather than instituting broad scope system-wide measures, they are looking at what kinds of problems are arising at each location: faculty harassment, sexual assault during travel abroad programs, and harassment by ex-boyfriends and girlfriends. See the link above for more details about what is happening across the state.
I have been meaning to write about the re-investigation by Florida State University into the sexual assault allegedly committed by Heisman Trophy winner Jameis Winston. The initial investigation into the charges of sexual assault, which is required by Title IX, was done more than a year after the assault for a variety of reasons, according to FSU which include lack of compliance by the accused and the then-ongoing investigation by Tallahassee law enforcement which did not result in enough evidence, according to the state attorneys office. (Perhaps, in part, because there was a never statement by Winston.) The re-investigation does not, of course, ameliorate the Title IX violations. It should have occurred within 60 days of the reported assault. But lawyers for the victim (who is no longer at the school) say they are pleased with FSUs current investigation. Though what results and when (after the post-season?) remains to be seen. So all this has been going on during the late summer and into the start of the academic year. And then this past week students and bystanders report that Jameis Winston was standing on a table in the student union yelling something obscene about women. The university investigates and decides, on Wednesday, to suspend him for the first half of their game against ACC rival Clemson. Winston gives a press conference and apologizes for his actions and seemingly to the FSU community--but not to women, curiously. He talks about overcoming adversity---as it relates to being a football team playing without its star player. And then late Friday, FSU announces that after the "continuing investigation"* into the incident the powers-that-be have decided Winston should sit the entire game. The reasons for this revision of the punishment were never clearly explained. There was some speculation that Winstons account of the event did not coincide with that of bystanders. I want to discuss Winston in light of his current position as an intercollegiate athlete who has been accused of sexual assault and as a future NFLer. (It is presumed that FSU is just trying to keep Winston eligible for this season and that he will enter the draft.) The campus sexual assault movement has raised the issue of athletes committing sexual assaults and how these assaults are being addressed by schools (i.e., handled by athletic departments, athletes transferred to new and willing schools). This past week, as Erin wrote about, the White House added to the conversation by creating a public awareness campaign about campus sexual assault. Part of the goal is to make this a campus community issue and not one that exists solely between victim and perpetrator (and those adjudicating and investigating). Whatever its faults, the purpose is to change campus climates. FSUs handling of Winstons latest "bad decision" (Coach Jimbo Fisher) fails to do this. And Winstons own understanding of what he did and how he handled it also reflects the failure of the institution to convey (assuming that it actually wants to) that it takes these issues seriously. Winston dressed for the game and went out in warm-up and took snaps. Apparently there had been some miscommunication, because Fisher sent Winston to the locker room and he came out with just his shirt and sweatpants and a baseball cap. How did Winston not get the message that his punishment would be enacted? Did he think that when things started going badly (as they did in the first half) that someone from on high would come down and say "ok, thats enough. Go in there and be the hero." Some media folks had suggested that the original half game suspension was actually setting Winston up for hero status. What was also troubling, especially in light of the campaign for community responsibility, was the way Jimbo Fisher talked about the punishment. In the pre-game interview he refused to talk about it all saying that it was something they were handling. This was a reiteration of his earlier statements made after the announcement of the half-game suspension and critiques that it was too light: "Were in charge. Its our team. Thats our thought." That is not a statement that suggests greater concern for the sexually hostile climate that exists at FSU. Switching attention to the organization Winston will likely become a part of: the NFL. I dont think anyone needs a refresher on the image problems that organization is facing. The question is, what will the NFL do with Jameis Winston? Which team will take him on? There have been some rumblings about whether Winston has hurt his future professional prospects (but mostly from the perspective of endorsements, not whether he will have a job as a football player). But Winston will enter the draft after the close of what is turning into a highly controversial season for the NFL and after the NFL releases its report on violence against women (expected by the Super Bowl). The culture of privilege and the institutional ignorance about violence against women do not just emerge when athletes enter professional sports. They are cultivated in intercollegiate sports. Winston is just the current example; he is not the first, but how his story and future unfolds will be an indicator of how serious both college and professional football are about challenging their own damaging cultures. * These are the moments that further our cynicism about internal investigations.
On Friday, the U.S. Court of Appeals for the Ninth Circuit affirmed a district courts ruling after trial that the Sweetwater Union School District in California violated Title IX by providing inferior facilities and resources to girls athletics at Castle Park High School and committed retaliation when it fired a coach who advocated for equal treatment. First, the court affirmed the lower courts conclusion that Sweetwater failed to satisfy any aspect of the three-part test for equality in the number of athletic opportunities available to each sex. First, the disparity between the percentage of girls in the Castle Park student body and its percentage of female athletic opportunities was a minimum of 6.7 during the time frame at issue in the litigation. The court agreed that this could not amount to "substantial proportionality" because 6.7 percentage points translates to 47 more girls who would have had athletic opportunities if they were proportionally distributed, and 47 girls "can sustain at least one viable team." Second, the fact that Sweetwater increased the number of girls teams over the last ten years did not constitute a history and continuing practice of expanding opportunities for girls since the number of athletic opportunities actually decreased during that time (from 156 to 149). Third, the school district did not effectively satisfy the interests and abilities of female students, having eliminated a girls field hockey team twice within the time period at issue, and for reasons not related to a lack of interest in the sport. The court also rejected as both _false _and _irrelevant _the school districts argument that it should not be expected to sponsor a field hockey team because field hockey is not sanctioned by the state high school athletic association. The court also affirmed the lower courts ruling that the school district retaliated against the plaintiffs (a class of female student athletes) by firing the softball coach in order to keep him from advocating for equal treatment for his team. First the court agreed that the plaintiffs were challenging retaliation as it was directed to them, rather than asserting the rights of their coach, which would have raised concerns about standing. It then went on to affirm the lower courts conclusion that the school districts purported reasons for firing the coach were pretext for retaliation. The injunctive relief ordered by the lower court -- the requirement that the school district prepare a compliance plan -- should now go into effect. When we blogged about this case before, I mentioned that it was a historic case because it was the first time a high school had been brought to trial for violations of Title IX in its athletics program. There is comparatively little historical significance in the outcome on appeal, however, as any other result would have been difficult to imagine. Moreover, the Ninth Circuit decision adds to the overwhelmingly favorable appellate court win-rate for plaintiffs challenging sex discrimination in athletics. See, e.g. (95%). In fact, perhaps the most remarkable thing about this appeal was the school districts chutzpah in trying to justify the discrimination in this case, and its failure to back down either before or after trial.
As part of its larger effort to focus public attention and government resources at the problem of sexual assault on campus, the White House today unveiled a new public awareness campaign aimed at amplifying the message that sexual assault is not just a matter between the perpetrator and the victim, but "one in which the rest of us also have a role to play." The campaigns name "Its On Us" reflects what is at core a basic but fundamental idea that sexual assault is a community problem with a community solution. From the campaigns website, individuals can take a pledge, and then share And they can share the fact of their having pledged with their social networks via Facebook and Twitter. This is the pledge:
To recognize that non-consensual sex is sexual assault. To identify situations in which sexual assault may occur. To intervene in situations where consent has not or cannot be given. To create an environment in which sexual assault is unacceptable and survivors are supported.I recognize that is only small piece of a larger, more comprehensive governmental response, so its unfair to criticize this initiative for being simply an online pledge. Its fine to incorporate a pledge initiative as one aspect of a multi-pronged approach. Especially when combined with social media, a pledge has the power to, by going viral, help normalize intolerance for sexual assault. But I think as far as its content goes, the pledge has only modest value in its over-simplicity. The first sentence, for starters, is tautological. Sexual assault is defined as non-consensual sex and non-consensual sex is another word for sexual assault. The second sentence is uselessly vague, since sexual assault "may occur" in any situation where one person and another person are in each others company. I like the third and fourth sentence well enough for what they do say, but I think they miss an opportunity to dig at least a little deeper into the root cause of the problem. As far as Im concerned, sexual assault is a community problem worthy of a community-based solution (as opposed to a problem caused solely by individual offenders) because many more people than just rapists participate in the sexualization and objectification of women, which in turn creates a culture that gives offenders the perception of having permission to exert sexual power over women. This added layer of collective responsibility is lost in a message that makes it seem like its sufficient to pledge to be ready to stop your female friend from going upstairs with that guy, or to give her a shoulder to cry on after she is assaulted. Maybe we should pledge to avoid language of sexual dominance ("scoring" and whatnot). Maybe we could pledge to boycott products that use sexualized images of women (or men) in their advertising. Maybe we could pledge to criticize all social contexts (professional sports, online gaming, Reddit, etc) that purvey and condone womens (or anyones) sexual objectification. That might actually make more sense as a message that is taking as a starting point the idea that sexual assault is a community problem for which we are all responsible. Its well enough to pledge to "intervene" and "support" but I think its also necessary to encourage people to examine their own behaviors that contribute to the culture that has given rise to this problem.
As the school year gets underway in Texas, high school students there have the opportunity for the first time to compete in a statewide cheerleading competition sanctioned this summer by the states interscholastic athletic league (the UIL) on a one-year trial basis. The four-day competition will be based on "what cheerleaders do during a pep rally or on the sidelines, without the high-flying tosses and difficult gymnastics found in competitive cheer" -- according to the UILs executive director. The league was reportedly motivated to add the cheerleading competition in order to ensure that school districts cheerleading programs comply with its health and safety regulations. Ensuring the safety of cheerleading participants is an important objective, and I support the leagues decision to create a "Game Day Cheer" competition in Texas on these grounds. Separately, however, it is important that school districts who decide to participate in this competition do so because they wish to enhance extracurricular opportunities for the students involved, and not because it counts as a source of athletic activities under Title IX. While the Department of Educations Office for Civil Rights does presume that activities recognized by the institutions athletic association count as a source of athletic opportunities that should be counted under Title IX, this presumption can be rebutted by evidence that the activity in question is not similar in nature to the other athletic opportunities supported by the institution. The factors that are used as a the basis of this comparison include how the activity is administered (i.e., by the athletics department, like other sports), how the activity is structured in terms of having practice and competition schedule that is comparable to other sports, that opportunities to compete in a post-season tournament are, like in other sports, based on regular season results, and that selection for the activity is based on athletic ability. The application of these factors raises doubts about the ability of Texas competitive cheer to count as a source of Title IX opportunities. Moreover, the judge in the Quinnipiac case determined that the competitive cheer team at issue in that case did not count as a source of athletic opportunities under Title IX because too many of the teams competitions emphasized non-athletic factors such as spirit-raising. Given that Texass state championship deliberately emphasize spirit raising to the stated exclusion of athleticism, it would seem to be disqualified from the Title IX analysis for that reason as well. To be clear, I found no suggestion that the UIL is promoting competitive cheer as a means for its member school districts to comply with Title IX. However, I did note that just as the UIL endorsed competitive sideline cheer, it rejected proposals to sanction water polo and bowling, both of which could have served as sources of athletic opportunities for girls. I worry that this sends the wrong message to school districts that they can add competitive sideline cheer _instead of_ other girls sports, when for schools lacking in compliance with the three prong test, this is not legally the case. Any Texas school district that uses competitive cheer opportunities to suggest the appearance of gender balance in the distribution of athletic opportunities is taking a legally vulnerable position that would be hard to defend to OCR or to a federal court.
Emerson College in Boston has already found itself on the wrong side of Title IX compliance after being accused of mishandling sexual assault complaints. Some investigating by the campus paper has found that there was also a complaint against the school (and 99 other New England colleges and universities) alleging insufficient athletic opportunities for female students. The mass complaint format is not new. We have seen it in states including Washington, California, Idaho. All these were aimed at high schools. The commonality is that they have all been done by an entity calling itself The Old Guys for Title IX. Friend of the blog Herb Dempsey, who counts himself as a member of The Old Guys, spoke to the Emerson paper about the complaints--all of which have been dismissed. The Office of Civil Rights does not believe the complaints have sufficient evidence to prove denial of opportunities. And based on the comments of students at Emerson who were interviewed in the article, they dont feel wanting either. The numbers show the opportunities provided to female students are not proportional to their representation in the undergraduate population. The participation gap (based on 2013 numbers) is 16% or 39 opportunities. This does not mean Emerson is not in compliance, but we dont actually know that because, now that the complaint has been dismissed by OCR, they dont have to prove either prong two or three. As an Emerson alum (from the grad program admittedly), it didnt seem that athletics was an integral part of the Emerson experience. This, of course, does not mean that the female students are less interested than the male students who attend the liberal arts school. But Emerson should be required to ask, at least. If, as one student contends, students are more focused on the arts (and that is somehow more applicable to female students) and everyone is fine with what exists right now, it should not be too difficult for Emerson to assess that. With such a drastic participation gap, Emerson is setting itself up for future problems. Even if the complaint by The Guys was not successful, a future student complaint might be considered by OCR. And if Emerson has not chosen a prong and has data at the ready to prove it is indeed in compliance, it will be vulnerable. It continues to astound me that athletic departments are not crossing their ts and dotting their is when it comes to Title IX. It does not matter if the program is not "big time" or even if it is a smaller part of student life, it still has to comply with the law.
The Department of Educations Office for Civil Rights announced that it has concluded a Title IX compliance review at the Ohio State University that the agency commenced at its own initiative in 2010. OCR determined that OSUs written policies and procedures for responding to sexual harassment and sexual violence did not comply with Title IX requirements such as by failing to designate reasonable timeframes for the major stages of the disciplinary process, failing to extend the policies to harassment committed by third parties, and failing to define sexual harassment to take into consideration the subjective (as well as objective) perspective. In response to these and other findings, the agency negotiated a resolution agreement with the university that obligates OSU to make necessary revisions to come into compliance. In particular, OSU is obligated to: * Streamline and revise certain policies consistent with the law; * Review and confirm the proper handling of sexual harassment/violence complaints and reports since the 2011-12 academic year; * Expand sexual assault and harassment training programs to include all members of the university community – including students, faculty, administrators, and university police; and * Establish a campus focus group to provide input on strategies for ensuring that students understand their rights under Title IX, how to report possible violations, and Ohio State’s obligation to promptly and equitably respond to Title IX complaints. Now that the agency has concluded its compliance review at Ohio State, the university is no longer in the company of the eighty-some other colleges and universities with pending Title IX investigations. (By way of background regarding OCRs investigation methods, most of its investigations result from complaints that the agency receives, but a small percentage of are conducted proactively by the agencys own initiative -- with OSUs investigation falling into that latter category. Another example of a proactive compliance review was the SUNY-system review that concluded in a similar manner in 2013.) Another contextual point worth making is that the agencys review commenced long before the problems of sexual harassment and sexualized climate of Ohio States marching band came to light. Yet, OCR has taken the opportunity of its pending investigation to review and endorse the universitys response to that matter, which included terminating the band director and as well as implementing other structural changes to prevent similar problems going forward. In the press release announcing the resolution agreement, Catherine Lhamon, the Departments Assistant Secretary for Civil Rights "applauded" the university for setting "clear and vitally important expectations for a community-wide culture of prevention, support, and safety," and for serving as an example of "strong leadership.. to eradicate a culture of silence related to sexual harassment." As Ohio State endured criticism from the band directors supporters who believe his termination was an over-reaction, it no doubt appreciates the Departments inclusion of this public statement of support.