Saturday, January 13, 2018

Court Rejects Parents' Arguments That Privacy Requires Transgender Students' Exclusion from Bathrooms

Township High School District Number 211 in Palatine, Illinois, is again in the news for recent developments in its legal struggle over transgender-inclusive locker rooms and bathrooms. In 2015, the Department of Education found that the school district's policy of excluding a transgender girl from the girls' locker room violated Title IX, a precedent-setting decision at the time. In response, the school district had to enter into a resolution agreement that permitted the student's access to the locker room.

Subsequently, the school district came under fire again, this time, in the form of a lawsuit filed by an association called "Students and Parents for Privacy." The association sued the district, arguing that its agreement to permit a transgender girl to use the girls' locker room violated cisgender-female students' constitutional right to privacy and constituted sex discrimination against them, in violation of Title IX. The association also moved for a preliminary injunction that would require the school to bar transgender students from gender-appropriate facilities while the litigation was pending. After a magistrate judge recommended that the district court deny this motion, the association tried to get the district court to reject the magistrate's recommendation, but last week the district court decided that it to would deny the association's preliminary injunction.  

In particular, the district court rejected the association's argument that the magistrate's opinion conflicted with old case law in the Seventh Circuit (a jurisdiction that includes Illinois) that narrowly construes the meaning of sex in cases applying the sex-discrimination provisions in Title VII to transgender plaintiffs. The district court points out that very recent Seventh Circuit decisions (that we have blogged about here and here) make clear that the appellate court no longer embraces the same narrow view. Instead, the district court is bound to follow the appellate court's updated position that "federal protections against sex discrimination are substantially broader than based on only on genitalia and chromosomes."

Moreover, the court reasoned, the association is not entitled to a preliminary injunction because they will suffer no irreparable harm by the fact that the high school will continue to operate under a policy that permits transgender students to use facilities according to their gender identity. Any student who fears their privacy would be impaired by encountering a transgender student in the bathroom or locker room simply has to access existing and available single-user facilities. That these facilities might be more remotely located did not constitute serious irreparable harm in the court's view.

Wednesday, January 10, 2018

School District Settles Transgender Bathroom Case for $800,000

The school board in Kenosha, Wisconsin, voted to settle its litigation with its former student, Ash Whitaker, who sued the school after it refused to permit his access to the boys' locker room and restrooms because he is a transgender male. Whitaker successfully obtained a preliminary injunction that granted the facilities access he was seeking while his litigation was pending; the decision of the district court in favor on this matter was affirmed by the Seventh Circuit Court of Appeals in one of the most important decisions to date on the rights of transgender students under Title IX and the 14th Amendment's Equal Protection Clause.

Soon thereafter, however, Whitaker graduated from high school and the focus of the case changed from what the school was required to do for him going forward to whether the school was liable for damages because of the discrimination that had already occurred. This aspect of the litigation will now end as well as a result of the $800,000 settlement voted on by the school board this week. $650,000 of that amount will reportedly cover Whitaker's attorneys' fees and costs. School officials told the press that the settlement was not an admission of liability for discrimination but a strategy to avoid the costs of ongoing litigation. Whitaker told the press he was happy to have the litigation behind him so that he could focus on being a college student.

Thursday, December 28, 2017

Major failure at Oregon

I have a healthy suspicion of mass firings as a cure-all for problems with intercollegiate athletes who commit sexual violence (see for example, Baylor). Firings do not automatically change culture (see Penn State and the vehemence with which students protested the firing of Joe Paterno).

In the case of University of Oregon, however, a house cleaning was in order after a 2014 report of sexual assault by several basketball players, one of whom had transferred to UO after being kicked out of Providence College for alleged participation in a gang rape. Despite the allegations by an undergraduate female, the players were not suspended from the team until after the post-season; a move that drew considerable criticism. We blogged about it several times including when there was a settlement that ended the lawsuit brought by the victim against the university; a lawsuit that included head men's basketball coach, Dana Altman.

Altman and others at the university including the Title IX coordinator and the president are now implicated in the case involving basketball player Kavell Bigby-Williams who was under investigation for forcible sexual assault ALL OF LAST SEASON.  

Last season was Williams's first. He transferred from a junior college, Gillette College, in Wyoming. His former school, which he was visiting right before moving permanently to Eugene in the summer of 2016, is where the assault took place. Allegations include non-consensual sex with a female student. One of the Gillette police investigators attempted to speak with Bigby-Williams and when she was not successful she contacted a detective with UO police who also tried to interview Bigby-Williams until she received a call from the lawyer representing the athlete; the lawyer is based on Wyoming and is Bigby-Williams's former assistant coach. 

Oregon's Title IX coordinator was alerted but she never reported the investigation and allegations to the director of student conduct and community standards per UO's own published policies and procedures--revised after the 2014 allegations. A team should have convened to assess the situation and determine if emergency action needed to be taken to protect members of the campus community based on the evidence available. Some administrators contest that this does not always takes place, while others says there was not enough information about the allegations in Wyoming to move forward. This was not true because the Wyoming police had sent police reports to the school. Nevertheless UO never conducted its own investigation into Bigby-Williams who continued to play on the team and make the coach who recruited him very happy.

Altman claims he did not know about the exact allegations and others at UO corroborate his story by saying they shielded him from knowledge of the exact nature of the allegations because there was not going to be an investigation.

The logic is dizzying--and the "defense" is likely not true. The student journalist who was covering the story requested the coach's (publicly paid for) cell phone records. The university took over 100 days to produce them and charged the student almost $500 for the records which revealed a series of calls between Altman and the deputy Title IX coordinator and Altman and Bigby-Williams's former head coach--all within 48 hours of the school's notification of the assault investigation.

Here is the recap: a current UO basketball player was accused of rape at another school. Oregon was notified of the allegations and was sent extensive police records. They did not follow their own procedures when they failed to do an immediate assessment and subsequent investigation. They have apparently lied about who knew what when. And, in general, they have continued to behave badly. President Michael Schill was asked about his awareness of the situation by student journalists in the early fall. He said he didn't know anything and then got snippy--and highly unprofessional--with them: "In any event, I can’t comment on an individual student. What if I was asked by another reporter about you being obnoxious? Would you want me to tell them that?"

Oh yea, and the athletics department is currently facing sanctions from the NCAA over program violations--which they are contesting. They self-reported the violations* in men's and women's basketball as well as track and field. But they are disputing the severity of the infractions (NCAA has a four category violation hierarchy). Athletics Director Rob Mullens said of the coaches involved: "they have the highest ethical standards on and off the court, and each acknowledges the infractions that took place within their programs."

That he can say that just weeks after the Bigby-Williams situation came to light is gratingly hypocritical as are his pat-ourselves-on-the-back references to the monitoring program that found the violations and the compliance training that will be done in light of the violations.

Where is the program monitoring the character, behavior, and potential issues with recruits and athletes currently on campus? Where is the accountability for administrators who are not only not doing their jobs, but breaking the law?

I initially thought this was a complicated situation what with two sets of campus police and two sets of administrators. But it is not complicated. Oregon had a duty to investigate once it was informed that one of its students had been accused of rape. They did not. At least a handful of people have apparently lied at various stages to the Oregon community and certainly to the public if not to each other.

Yet, no one seems in danger of losing his/her job.**

Maybe that's because the Ducks are currently first in the Pac-12 despite all these "distractions."

It's not complicated at all.

* Also noted for the record, the university in 1981 had a violation deemed "lack of institutional control" over several programs, including men's basketball.

**  If I had to speculate, the Title IX coordinator and deputy coordinator will be ousted if there is a call for accountability.

Sunday, December 03, 2017

Is #metoo for colleges and sports?

The recent, daily, and ongoing revelations about sexual assault and harassment in Hollywood, the media, and government may be disheartening, heartbreaking, maddening but likely not surprising.

If there was ever any question that sexual assault and harassment is an epidemic, that question should now be answered. The past several years, however, in which we saw more and more activism around and attention given to campus sexual assault should have been an indication--in the form of a giant, blinking neon sign--that this is a problem.

I have been thinking a lot about the recent accusations, confessions, and the general discourse and how it relates to what we already know, steps already taken, and what comes next. The rest of this post includes my initial thoughts about how what has happened on college campuses is related to the current moment.

As someone who has written and spoken about campus sexual assault for a very long time now, I am somewhat dismayed at the cultural shock over the idea that some men behave very badly. College women have been telling us for decades about sexual violence in higher education. To think that incidences of rape, assault, and harassment decrease after college is naive--at best; as if men grow out of the behavior or women become less susceptible. So I find it curious that no one (that I have seen) has made any connection between the movement to hold colleges and universities (and K-12 as well) accountable for investigating and ultimately decreasing sexual violence and the recent news about the assaults committed by powerful men in influential industries.

Perhaps it is because the recently accused men are famous and most of the college males accused are not. (The exceptions, of course, are the athletes in big-time athletics programs--more on this in a moment.) All these famous men were once anonymous young men, too. Power is certainly a factor--but is it a factor in who commits these crimes or in how it enables some to get away with them for so long?

One reason for the campus sexual assault epidemic being ignored in the current discourse about sexual violence is because it happens in the context of college. It has been very difficult to overcome the popular image of college men and women drinking too much and making "bad choices." The siloing of sexual violence committed by college students continues to perpetuate these stereotypes about how college men and women act and thus normalize sexual violence on college campuses. This is evident in how both the accused and the accusers in the recent stories are being treated.

I see far fewer people supporting the accused. In cases of college sexual assault there is still a very active backlash movement in which accused men are suing their schools--sometimes using Title IX--accusing administrations of gender discrimination during the student judicial process. There is not a lot of complaining about the actions (firings, suspensions) being taken against the recently accused famous men of Hollywood and mainstream media. And only a few--Roy Moore, most notably--have fought the accusations against them. Just like the student conduct processes many accused go through, the actions against these famous men are occurring outside the criminal justice system; again with very little questioning of this version of "justice."

Related to the above: far fewer people are questioning the accusers. While I am pleased to see this, I am shocked given what I have seen and read about in cases of campus sexual assault. How much did she drink? What was she wearing? Did she not know about that fraternity's reputation? Maybe she just changed her mind. How many other people did she kiss that night? Did she have a boyfriend? Most people seem to be believing the women who have come forward with accusations--even the ones who have done so anonymously. Campaigns to #believewomen are great, but I do not see them being extended, with the same force, to college women.

I do not know if we will begin to connect the dots--that sexual assault and harassment is product of (mostly) capitalist institutions imbued with patriarchy and misogyny whether that is a college or Congress. But we need to if we want college women's accusations against their male peers to be taken as seriously as actresses' charges against studio bosses.

Maybe we will. I have seen more and more accusations by current or former students--especially graduate students--against professors. There is a similar power dynamic in these relationships: someone controls another's future, success, career. How will these accusations be treated in light of those against the growing list of powerful men? While I will not guess at that, I do predict these accusations will grow. More former students, emboldened by those who have come forward, will speak out about the harassment and assault by men in academia.

What I remain uncertain about is whether the cultural moment will create a space for the women who have experienced sexual violence within sports cultures. If Jameis Winston had been accused last week of rape would Florida State have reacted differently than it did three years ago when it did nothing (except protect Winston and let his accuser be run out of Tallahassee)? Is the so-called tipping point we have allegedly found in regards to sexual violence going to spill all over the hallowed football fields of American universities and colleges?

We must also look at professional sports culture and sports media. Regarding the latter, the women of the Burn it all Down podcast addressed the lack of accusations in sports media where misogyny and harassment of women are well known and sometimes even documented (see the case of Erin Andrews).  As for the former, I wonder what will happen when the next woman comes forward to accuse a famous professional male athlete of rape. Will we believe her like we believed those who have spoken of the abuse by Louis C.K.? Or will we accuse her of being a gold digger or someone looking for 15 minutes of fame?

We have not "tipped" as a culture toward addressing and taking seriously sexual violence and harassment unless we take college women's accusations seriously and our concern for these issues extends into the behaviors of the powerful men in collegiate and professional sports and sports media.

Tuesday, November 21, 2017

Oklahoma Jury Awards Transgender Professor $1.1 Million in Tenure-Denial Discrimination Suit

In 2015 we blogged about a lawsuit filed by the Department of Justice on behalf of a transgender professor, Rachel Tudor, who was denied tenure by her institution Southeastern Oklahoma State University.  At the time, we found it noteworthy that DOJ was taking the position that Title VII's prohibition on sex discrimination necessarily includes discrimination that targets someone for their transgender status, and we noted that a favorable outcome in this case would benefit transgender litigants under Title IX as well. 

2015 seems like a bygone era when it comes to the government's enforcement of civil rights, so it is particularly heartening to report that yesterday a jury of eight Oklahomans found in Tudor's favor and awarded her $1.165 million in damages. They reportedly found that the University was liable on three counts: denying Tudor the opportunity to apply for tenure in 2009-10 because of her gender, denying her again the following year because of her gender, and retaliating against her after she complained about workplace discrimination.

This really is a big deal.  A member of Tudor's legal team noted that this is the first transgender discrimination case under Title VII to make it to a jury trial. For her to win -- bigly -- in court that drew its jurors from a state not exactly known for being progressive on LGBT rights, shows that the law and culture are both shifting in favor of a necessary and expansive view of civil rights. 

Wednesday, November 15, 2017

High School Boy Challenges All-Girl Dance Team Rule

Today I was interested to read about a Title IX complaint filed by the Pacific Legal Foundation -- a public interest law firm that usually argues to overturn regulations, not enforce them --  on behalf of a male high school student in Minnesota who is challenging the "girls only" rule for dance teams in the state. There are two reasons why I think that this complaint is valid.

First, while it is theoretically possible for dance teams to be considered sports for Title IX purposes, that determination turns on whether institutions treat those teams in the same manner that sports are treated. To be considered sports, dance teams must have the same opportunities for regular season and post-season competition, be run by the athletics department, receive the same kinds of support as sports teams, make decisions for eligibility based on athleticism, and other similarities. However, the Minnesota State High School League, which issues statewide rules for sports and other activities permits schools to make "local decisions" about how the schools will treat their dance teams, a standard that seems to acknowledge the possibility that some, maybe many, do not treat them like other sports. I suspect that the most obvious way in which they are different from sports is that dance teams exist for the primary purpose of performing and compete as a secondary matter. My concern seems justified by the fact that the competition schedule for the dance team of Superior High School, where the complainant attends, has only three opportunities for regular-season competition. By comparison, the boys' swim team has fifteen, for just one example.  Bottom line: if dance is an activity and not a sport, it is not governed by the regulatory standard that permits schools to offer separate male and female sports teams, and the complainant should win.

But even if dance team is a sport, the applicable Title IX regulations only permit segregated teams if  "selection for such teams is based upon competitive skill or the activity involved is a contact sport."  Dance team is surely not a contact sport, so we have to ask: is selection based on competitive skill?  I don't know, but if Minnesota dance teams take any girl who tries out, then they are not based on competitive skill and they can't be segregated, and that's the end of discussion right there.

If selection is based on competitive skill, then it is permissible to have an all girls' team. However, Title IX still may permit boys to try out. That's because the regulations also require schools to permit "crossover participation" (a boy on a girls' team or vice versa) where there is only one team in that sport. There is an exception to this rule for contact sports, but dance team does not qualify for this exception. The other requirement for cross-over participation is that "athletic opportunities for members of that sex have previously been limited."  To be sure, this requirement is subject to multiple interpretations, one being that boys have historically had more athletic opportunities in general and therefore are never eligible to try out for girls teams.  But boys have prevailed before by arguing that their opportunities in that sport have been limited, an argument seemingly applicable to dance team and one that supports this student's claim that the exclusionary rule violates Title IX.

Ultimately I think the Pacific Legal Foundation attorney's statement to the press about this complaint is right on: the rule excluding boys from dance team perpetuates archaic gender stereotypes about the kinds of activities suitable for each sex. As this example shows, these stereotypes limit opportunities for boys and girls alike.

Saturday, November 11, 2017

SUNY Albany lawsuit

This past spring SUNY Albany's athletics director made the decision to cut the women's tennis team. The problem with the cut, in terms of Title IX compliance, was that Albany does not meet the proportionality prong. When a university cuts a women's team it must, by default, provide opportunities proportional to the gender breakdown in the undergraduate student population because it is neither expanding opportunities for women nor is it accommodating the needs and interests of students (because there is a viable team of interested women--the team that just got cut). 

The decision was contentious because AD Mark Benson told head coach Gordon Graham, who is part of the lawsuit, last spring that the team was being cut and Graham told his players, most of whom were international students who had to negotiate visa and recruitment issues, about the cuts which was supposed to stay a secret until the end of the season. Graham also filed a complaint with OCR. According to this article, Albany would have to add 97 opportunities for women in order to meet prong two.

OCR investigated this fall and found that the university was not providing equitable opportunities. Albany entered into a voluntary resolution agreement that included a three-year plan to increase athletics opportunities for women. However this statement from Benson makes me wonder exactly how they plan on achieving equity: "We have no plans to add any teams or bring teams back and no plans to cut any programs. We're not in a position from a budgetary standpoint to do that."

The university needs to recover money, allegedly, from the loss of revenue from the New York Giants who held summer training sessions on the campus.

Does Benson plan on adding 97 spots to current women's teams? 

This response may be why four athletes and Graham filed the lawsuit. The athletes are seeking reinstatement of the team. Gordon is also alleging age discrimination (he is 65) saying that he was pressured to retire before being told his contract would not be renewed. No report on when the lawsuit will be addressed in the courts.

Friday, November 10, 2017

No Evidence of Anti-Male Bias in Colgate Case

I strive to keep up with the decisions in cases brought against colleges and universities by students who are disciplined for sexual misconduct, in particular, the cases in which plaintiffs alleges that a university's decision to discipline them was motivated by bias against men, in violation of Title IX. Many of these types of claims are dismissed early in the litigation due to failure of the plaintiffs to allege a specific basis for alleging that gender bias tainted the universities' disciplinary process.  Some example of these decisions from recent months include:
  • Doe v. St. John's Univ., 2017 WL 4863066 (D. Minn. Oct. 26, 2017)
  • Doe v. Columbia College Chicago, 2017 WL 4804982 (N.D. Ill. Oct. 25, 2017)
  • Saravanan v. Drexel Univ., 2017 WL 4532243 (E.D. Pa. Oct. 10, 2017) 
  • Ruff v. Bd. of Regents of Univ. of New Mexico, 2017 WL 4402420 (D.N.M. Sept. 30, 2017) 
  • Streno v. Shenandoah Univ., 2017 WL 4407938 (W.D. Va. Sept. 30, 2017)
  • Stenzel v. Peterson, 2017 WL 4081897(D. Minn. Sept. 13, 2017)
On the other hand, some recent decisions have denied universities' motions to dismiss those claims, and permit the plaintiff to proceed with the next phase of litigation, discovery, in which the plaintiff gathers evidence in support of the allegations they have made. 
  • Doe v. Univ. of Chicago, 2017 WL 4163960 (N.D. Ill. Sept. 20, 2017) 
  • Rolph v. Hobart & William Smith Colleges, 2017 WL 4174933 (W.D.N.Y. Sept. 20, 2017) 
  • Doe v. The Trustees of the Univ. of Pennsylvania, 2017 WL 4049033 (E.D. Pa. Sept. 13, 2017) 
  • Doe v. Case W. Reserve Univ., 2017 WL 3840418 (N.D. Ohio Sept. 1, 2017)
At the end of discovery, university defendants have another chance to dismiss the claim by moving for summary judgment. This motion forces the court to consider the quality of the plaintiff's evidence, rather than just the sufficiency of the allegations in the complaint as it does in response to a motions to dismiss. Only by winning at this stage can the plaintiff proceed to a trial and have the opportunity to convince a jury that the evidence demonstrates that the university is liable for gender bias. Far fewer cases make it to this stage in the process, and since decisions involving motions to dismiss disciplined students' Title IX claims have become rather common, it is the summary judgment decisions that are now more interesting to me.

Recently, a federal district court granted summary judgment in favor of Colgate University; dismissing claims of a student that the university had expelled for sexual misconduct. Like many other disciplined-student plaintiffs, the plaintiff here alleged that Colgate's anti-male bias was rooted in the current social and political climate, which has forced colleges and universities to be more responsive to reports of sexual misconduct when they occur. While some courts have dismissed bias claims that are based on these types of allegations, on the grounds that bias (if you will) against sexual misconduct respondents is not the same thing as bias against men, others have accepted that allegations along those lines are sufficient at the motion to dismiss stage. Notably for Colgate's purposes, one such court is the Second Circuit Court of Appeals, which has jurisdiction over the federal courts in New York, where Colgate is located.  Since the Second Circuit's decision in Doe v. Columbia University last year, I've been interested to see what happens to cases with similar kinds of gender-bias allegations as they get further along in litigation and reach the summary judgment stage?  Do plaintiffs manage to marshal enough evidence of the link between a generalized, anti-rape climate, and anti-male bias in their disciplinary proceeding, to make it to a jury? 

In the Colgate case, the court said no, as it dismissed the plaintiff's bias claim on summary judgment. It rejected the plaintiff's evidence, for example, that a "sexual climate forum" held at the university was evidence of institutional bias against men, where there was no evidence that this forum was anti-male.  Nor was the existence of campus activism around survivor support, or Colgate's efforts to comply with the 2011 Dear Colleague Letter, especially given that not all men accused of sexual misconduct at Colgate since 2011 have been found responsible. The court also rejected as evidence of anti-male bias: assurances by campus officials that students found responsible for sexual misconduct will be expelled, training session that used hypotheticals where the person consenting was female and the person asking for consent was male and the victim was female, and some differences in the way that complainants and respondents are treated differently in the disciplinary process.

This outcome should hopefully provide some reassurance to campus administrators that they are not caught between a rock and a hard place when it comes to sexual violence. While it is theoretically possible to imagine actual examples of anti-male bias (a fact that explains the willingness of courts to allow for litigation to continue when the allegations are sufficient), the mere fact of working to prevent and  respond to sexual violence is not inherently anti-male.  Implementing policies and procedures that were responsive to the 2011 Dear Colleague Letter is not inherently anti-male. Awareness-raising is not inherently anti-male. Victim-sensitivity is not inherently anti-male. If this is all that a plaintiff can marshal in support of their bias allegations, it is clear that is not sufficient evidence of institutional bias.

Sunday, October 29, 2017

Title IX and the Straw Man

Erin and I both talked to a New York Times reporter last week about whether and how California's new legislation allowing for a gender neutral designation on state IDs would intersect with Title IX regulations. (More on that below.)

My immediate thought, upon hearing that the California Family Council (CFC) was using Title IX as a reason for why the legislation was not a good idea (as their leader stated in a July editorial), was that Title IX is being used again as a distraction, a scapegoat, a tool of division. CFC's president Jonathan Keller was employing the straw man fallacy when he wrote that:"The new “nonbinary”* gender created by this bill would likely be subject to the federal Title IX statute. This means California’s nearly 150 public colleges and universities, and all 10,453 public schools would be required to provide not only male and female athletic teams and facilities but non-binary ones as well. This would result in a massive new federally mandated expense to the state." We discussed why this was not going to happen.

Erin gave the reporter a number of reasons why CFC's legal argument was specious. For one thing, it assumes that the Department of Education is going to be aggressive in its enforcement of Title IX in general (which it is not) and in particular, that it is aggressive in its enforcement of  Title IX as it applies to gender identity diversity and transgender rights (which it has so clearly backed off of). Next, it would require the Department of Education, which enforces federal law, to defer to state law, event though federal law normally preempts conflicting state law. Even then there would be the challenge of reading the Title IX regulations to incorporate new gender categories. Given the use of phrases like  "both sexes" and "one sex ...[and] the other sex,"  realistically the law would not be read to cover a third gender category. Finally, even if  Title IX's athletics regulations did incorporate California's nonbinary gender category, schools would of course only be required to at most provide participation opportunities proportionate to the percentage of students who are nonbinary. Because nonbinary students are a really small percentage of the population, even if Title IX applied, the burden on schools would be small.  I discussed the existing policies at the K-12 and collegiate level and how gender identity was either honored or it was superseded by hormone use (in the case of NCAA sports). Those arguments were easy and we were happy to explain them. What has arisen for me since the article was posted is how the law is used by people who do not care about it being enforced until it can be levied against a more disliked minority group. It was likely inevitable that the law mandating gender equity in education would be used as a tool of division by those who actually do not want equity. CFC's argument above is just one example. Everyone is harmed when the argument becomes about who deserves protection more. In between the lines of CFC's very calmly worded editorial is the following message: "real" girls and women will suffer because of the demands of a deviant minority group. Resources will be drawn from women's and girls' sports to create teams comprised of nonbinary persons. You want gender equity? Well then you cannot have nonbinary equity without it costing you--the taxpayers of California--a lot of money.

The overt hate, the malicious tone that we have seen aimed at transgender and non-binary people was absent from the editorial. But that does not mean that what CFC said, how they pitted women against non-binary people, was not hateful. As Title IX continues to be weakened, it could be easier for arguments like these to gain traction. Playing the oppression Olympics only benefits people like CFC and their supporters.

* I assume he used quotation marks because he does not think nonbinary is a thing. This was a rhetorical/grammatical mistake on his part. Nonbinary is indeed an adjective used to describe real things. Keller does not think nonbinary gender identity is real. He should put the quotation marks  around the phrase nonbinary gender to get his point across. 

Saturday, October 14, 2017

Members of Congress Introduce Bill to Restore Withdrawn Guidance

Members of Congress announced this week that they have proposed a bill that aims to codify aspects of the Obama administration's 2011 Dear Colleague Letter and related guidance that was withdrawn by the Department of Education last month. It would also codify some of language in the Title IX regulations and the 2001 Guidance that the Department of Education is endorsing for now, but which could in the absence of statutory law theoretically be amended by new regulations or policy interpretations promulgated in the future.

The bill, authored by Representative Jackie Speier (D-CA) is called the Title IX Protection Act (H.R. 4030), and it would require that institutions:
  • to designate a Title IX coordinator, and to disseminate a notice of nondiscrimination based on sex.
  • to adopt and publish grievance procedures providing for prompt and equitable resolution of sex discrimination complaints. Grievance procedures may include voluntary informal mechanisms (e.g., mediation) -- but not for sexual violence cases.
  • to address sexual harassment, including sexual violence, about which a responsible school employee knew or should have known. 
  • to take "immediate action" to address a hostile environment created by sexual harassment, designed to "eliminate the harassment, prevent its recurrence, and address its effects". An actionable hostile environment is one "sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program," including an isolated incident of sexual harassment if the incident is sufficiently severe, such as rape.  This requirement to take action also includes interim measures to help the complainant deal with the effects harassment and avoid contact with the perpetrator.
  • to process all complaints of sexual violence, regardless of where the conduct occurred, to determine whether the conduct occurred in the context of an education program or activity or had continuing effects on campus or in an off-campus education program or activity; this requirement applies even if law enforcement is already investigating. 
  • to use the preponderance standard of evidence to adjudicate sexual misconduct matters --this had been a key requirement of the 2011 Dear Colleague Letter, but one that the current administration abandoned when it permitted institutions to substitute the higher clear and convincing evidence standard.
  • to provide symmetrical procedural rights to both the respondent and complainant, including the right to attend the hearing, to present relevant witnesses and other evidence, to access to information that will be used at the hearing, to be accompanied by an advisor, and to appeal the initial decision. 
  • to permit cross-examination by a third-party -- in order to minimize the potential trauma or intimidation to the complainant of being questioned by the person they have accused of sexual violence.
  • in cases where the complainant requests confidentiality (thus limiting the school's ability to discipline the alleged harasser), to "pursue other steps to limit the effects of the alleged harassment and prevent its recurrence."
  • to conclude investigations approximately 60 calendar days, with an exception for cases involving multiple incidents with multiple complainants or where there is a parallel criminal investigation.
Unfortunately, it is difficult to imagine this bill getting much traction in Congress in this political climate. Nevertheless, I believe this bill is valuable because it can serve as a focal point for political activism. It may produce a legislative record that could influence the political debate ongoing in general and in particular in the Department of Education as it considers revising the existing regulations and policies. Finally, the bill serves as a general reminder of the role Congress has to play in challenging the president when it disagrees with the administration's policies. 

Friday, September 29, 2017

OCR Finds State Agency Did Not Correctly Apply Title IX to Annual Reviews of Scholastic Athletic Programs

In Washington State, the state agency in charge of public schools (called the Office of the Superintendent of Public Instruction, OSPI) receives federal funding and administers some of that funding to local school districts.  As such, OSPI is required to comply with Title IX and may not aid or perpetuate discrimination by funding school districts who do not comply with Title IX. To that end, OSPI monitors the Title IX compliance of its school districts. Among other things, OSPI collects and reviews the self-evaluations that it requires school districts to annually conduct of its athletics programs' participation rates.

The Department of Education's Office for Civil Rights began an investigation into OSPI's Title IX monitoring process in 2011, after receiving hundreds of complaints about Title IX violations in Washington's public schools' athletics programs. This week OCR announced its conclusion that OSPI was not properly applying the three-part test when reviewing the school districts' self-evaluations of compliance.

The three-part test requires an athletic program subject to Title IX to either (1) ensure that percentage of athletic opportunities for each sex is substantially proportionate to the percentage of each sex in the student body; OR (2) that the program has a history and continuing practice of expanding opportunities for the underrepresented sex; OR (3) that the interests and abilities of the underrepresented sex are being met.

OCR did not find any problems with how the OSPI was applying parts 2 or 3, but it did find fault with the way it determined compliance with part 1. In particular, OSPI only found that schools failed to comply with this part if it would have taken more than 15-20 (depending on the size of the school) new opportunities for the underrepresented sex to bring the school into proportionality. In contrast, OCR has said that except when disproportionality is caused by natural fluctuations in enrollment, the only time a school does not have to be in exact proportionality is if the number of new opportunities needed to reach proportionality is smaller than the number needed for any new viable team. 

Given that there are lots of sports that can run with 15 or fewer students, it is not surprising that OCR found "some instances" where OSPI "perpetuated discrimination" prohibited by Title IX by permitting some school to pass the review when they should not have. OSPI is now obligated to modify its practice so that it applies the appropriate standard going forward, and is subject to monitoring by OCR to ensure it does so.

I thought this enforcement action was noteworthy because of its state-wide impact. In the past, complainants have tried to focuses OCR's attention on widespread noncompliance by filing dozens of complaints at once against school districts who do not appear to comply with the first part of the three part test. OCR has found grounds to dismiss these complaints without investigation or resolution, probably because of the practical limitations of actually conducting all of those simultaneous investigations. But if OCR keeps close track of how state agencies that distribute federal funding are applying Title IX, the agency can have still have state-wide impact. I wonder if we will see more these kinds of investigations initiated in other states.

Tuesday, September 26, 2017

6th Circuit Affirms Injunction Against Suspension of Student Whose Accuser Did Not Attend Hearing

A male student at the University of Cincinnati sued the university after was suspended for one year after a hearing panel determined he was responsible for sexual misconduct of a female classmate. He sought a preliminary injunction that would allow him to continue as a student while the merits of his case is being litigated. A district court granted that injunction, and yesterday the Sixth Circuit Court of Appeals affirmed.

To prevail on a motion for preliminary injunction, the plaintiff must demonstrate a likelihood of eventual success on the merits. Here, the Sixth Circuit agreed that the student's due process claim was likely to succeed.The hearing panel found the student responsible for sexual misconduct on the basis of the Title IX investigator's report, which contained statements by the female complainant. The female complainant, however, did not attend the hearing, and as such, was not available for cross-examination by the respondent. The respondent disputed the complainant's version of the events in question -- his testimony was that their sexual relations were consensual, and her statement, presented in the report, was that it was not. Accordingly, the deciding factor boiled down to the panel's sense of the respective parties' credibility. And because she was not present, he was not able to subject her testimony to cross-examination, which theoretically could have exposed inconsistencies or other characteristics that could have been relevant on the issue of credibility.  Thus, the appellate court determined, the plaintiff is likely to succeed on his due process claim.

The court emphasized the narrowness of its holding. It is not saying that respondents automatically win when the complainant does not attend the hearing; only in situations where credibility proves to be the deciding factor does the complainant's absence undermine due process. In cases where other evidence tips the balance, like cases with physical or video evidence, or other material witnesses who attend the trial, the complainant's absence from the hearing would not matter. Nor would it matter in case where the respondent admitted responsibility for the charge.

Additionally, the court emphasized that it is not insisting that universities permit the kind of cross-examination that one would see at a judicial trial, where the attorneys aggressively and doggedly try to fluster, undermine, and even trick the witness into saying something inconsistent with their story.  At the University of Cincinnati, the respondent's cross examination of the complainant is mediated by the panel, which accepts the respondent's proposed questions and filters out ones that are redundant or off topic. It also permits either party to attend the hearing remotely via Skype instead of in person. The court did not suggest that these methods of mitigating the potential for cross-examination to traumatize the complainant are unconstitutional. But it does insist that some opportunity for cross-examination take place before the hearing panel, in cases that turn on credibility.

Decision: Doe v. University of Cincinnati, 2017 WL 4228791 (Sept. 25, 2017).

Friday, September 22, 2017

Department of Education Withdraws 2011 Dear Colleague Letter

Today the Department of Education announced its withdrawal of the 2011 Dear Colleague Letter and related 2014 "Q&A" guidance. This decision was not a surprise as it was foreshadowed by Secretary DeVos's speech at George Mason University earlier this month. The letter announcing the withdrawal reiterates DeVos's earlier-stated intentions to conduct a notice and comment rulemaking process (though it does not specify a timeframe for this).

The letter also seeks to clarify what kind of sexual misconduct response it expects education institutions to engage in in the meantime. First, the 2011 Dear Colleague Letter's policy antecedents remain in effect; these are the 2001 Revised Sexual Harassment Guidance and the 2006 Dear Colleague Letter endorsing the 2001 Guidance.  Secondly, the regulations that the prior administration promulgated in 2014 to enforce the Clery Act are unaffected by the Dear Colleague Letter's withdrawal. Finally, the Department issued a new Q&A that will supplement the earlier guidance as a source of answers to questions about schools' obligations under Title IX to address sexual misconduct. This reiterates some of the key points under the antecedent guidance, as well as the Clery regs. Interestingly, it also adds some new requirements and retains some aspects of the withdrawn 2011 Dear Colleague Letter.  Here is my impression of the key features of today's change:

  • The Q&A continues to endorse the school's obligation to respond whenever it "knows or reasonably should have known" that an incident of sexual misconduct occurred, regardless of whether someone is filing a complaint.  To be actionable, the incident(s) must constitute "severe, persistent or pervasive" and operate to deny or limit a student's ability to participate in school programs. This is consistent with the 2001 Guidance. 
  • Like the 2001 Guidance, the new Q&A says that "it may be appropriate" for schools to take interim measures -- services and accommodations like counseling, schedule or housing modifications, extensions, etc. that institutions make to students while an investigation and grievance proceeding. The new Q&A adds, however, that interim measures may be appropriate for the responding party as well as the reporting party.
  • The requirement that schools adopt and publish a grievance procedures stems from the 2001 Guidance and is codified by the Clery regs. This requirement, as well as various characteristics that are also codified, is retained in the Q&A.  
  • That said, the new Q&A abandons the specific 60 day time frame that the 2011 Dear Colleague Letter offered as an interpretation of the existing requirement that the procedures ensure "prompt" investigation.
  • The new Q&A also abandons the 2011 Dear Colleague Letter's requirement that institutions use the preponderance standard of evidence as part of the existing requirement that procedures be "equitable." The Q&A says that institutions may use either the preponderance standard OR the clear and convincing standard. It's arguable that this is a new approach for the Department, since even prior to the 2011 Dear Colleague Letter, the agency required institutions to use the preponderance on a case-by-case basis in enforcement actions. 
  • On the other hand, the new Q&A retains the requirement that institutions provide symmetrical procedural rights to complainants and respondents (with one exception noted in the next bullet point). This was a major aspect of the 2011 Dear Colleague Letter and it put an end to the practice of holding one-sided hearings where the complainant had no role or even right to be there. Some of the symmetry principal that originated in the 2011 Dear Colleague Letter was codified in the Clery regs, including the right to receive notice of the outcome and the right to have present at the hearing an advisor of the party's choice. The Q&A does not repeal the aspects of the symmetry principle that are not so codified. 
  • The exception to the point above is the right to appeal. Whereas the 2011 Dear Colleague Letter extended the "symmetry" requirement to the right to appeal, the new Q&A permits institutions who offer a right to appeal to either offer it to both parties OR to restrict it only to the respondent.  The Q&A attributes this (vaguely) to notions of due process.  
So this is the state of things until the Department promulgates new regulations. My guess is that if we had to guess about the content of the new regulations the agency will propose, the Q&A is a good indication.   

Wednesday, September 20, 2017

Bipartisan Congressional Group Urge DeVos to Retain Preponderance Standard

In the wake of Secretary of Education Betsy DeVos's announcement earlier this month that the Department of Education plans to reconsider its interpretation of institutional responsibilities under Title IX to address sexual misconduct, I thought it was notable that yesterday a group of ten Members of Congress wrote to DeVos to urge her to retain that requirement that institution decide sexual misconduct cases using a preponderance of evidence standard.  Notably, the signatories consisted of five Republicans and five Democrats, as well as a mix of men and women. The letter argued that the preponderance standard (which asks whether there is more evidence in support of the charge against respondent than against) balances the rights of students who have or will face sexual violence against the the rights of students who are accused of sexual misconduct, over which the signatories share DeVos's concern. Preponderance is the most equitable standard, the letter maintains, because it recognizes that both complainants and respondents have a stake in the outcome. They point out that it has been favored in the past by Democratic and Republican administrations, both of which used their enforcement authority to require it of institutions long before the agency's 2011 Dear Colleague Letter publicized that aspect of the Department's interpretation of Title IX. In stark contrast to DeVos's painting of the DCL as having created a failed system, the letter points out that colleges and universities have "made great strides" to address sexual violence, thanks to the DCL and student advocates. They hope that the Secretary's upcoming process for revising it "build upon" rather than undermine this "hard won progress."

The letters signatories are:

Annie Kuster (D-NH)
Patrick Meehan (R-PA)
Jackie Speier (D-CA)
Susan Davis* (D-CA)
Ted Poe (R-TX)
Pramila Jayapal (D-WA)
Tom Reed (R-NY)
Debbie Dingell (D-MI)
Carlos Curbelo (R-FL)
Lynn Jenkins (R-KS)

* I note that Representative Davis is also a member of the House Committee on Education and the Workforce, which has authority over the Department of Education's budget. This does not give her a ton of leverage, since she is just one member of the minority party, and since DeVos would probably be fine with most any cut to the agency's budget.  But if more members of that committee are persuaded to take a stand against rolling back Title IX, and they can find a way to use finances as leverage over the Department, that is one potential way for Congress to serve as a check on the executive branch on this issue. The other option Congress has, of course, is to codify the preponderance standard, or any other aspect of Title IX that exists as regulation or subregulatory guidance, into the statute itself.