Tuesday, July 18, 2017

Inequities in scheduling and facilities

Last week's episode of Only a Game included a story on inequities in scheduling and facilities on the three stories you should know segment of the show.

It was Boston Globe writer Shira Springer's story and was born out of Victoria Azarenka's complaints during the first week of (the recently concluded) Wimbledon that women were not getting the good courts and the good times. Nothing much came of Azarenka's public calling out of the All England Club--shocking. But Springer did a good job of turning the moment into a conversation about how female athletes are treated.

My initial response was something in the realm of "no kidding" and "is this really what we should be talking about?". I mean the Women's US Open was held at one of 45's golf courses last weekend because the USGA would not move the event way back in October when news of his sexual assaults was revealed to the world. And then USGA officials would not/could not publicly answer a question about the organization's position on sexual assault!

But then I remembered that I am a feminist scholar of sports and that ranking all the ills is not really in keeping with my philosophy and desired intentions. I also opened up my email to find a Google alert about facilities inequities in Oregon (high school softball/baseball fields). Also, inequities in scheduling and facilities do not exist in a vacuum; they are an indicator of the culture of the sport's governing body.

Springer's segment focuses on professional and Olympic female athletes and it is an important conversation given that, as she herself notes, much of the conversation about inequality at this level has been directed at pay inequities. And as much as I appreciate Springer's segment and the potential attention it will generate, this is not new. Just two years ago, we were watching a premier international soccer tournament played on artificial turf. The 2015 Women's World Cup participants and their supporters protested the

Host Bill Curtis made a side comment about Boston University when Springer mentioned the very inequitable scheduling of women's hockey in Sochi in the last Olympics. He noted that BU has the same issue. It was almost a under-his-breath comment but it's important to note. BU established a women's hockey team in 2005. The team has been successful fairly quickly. They play Walter Brown Arena, built in 1971, which seats approximately 3,800 fans. The men play in Agganis Arena, which opened in 2005 (such a coincidence!), and seats about 6,100 fans. I have not been to either arena so I cannot comment on the level of upkeep or general comfort and accommodations. But on its face, this does not look like a good situation. It reminds me of the montage in Love and Basketball that compares the experiences at USC of Q and Monica.

Because Walter Brown is a facility that the women do not have to share unlike most of their DI counterparts, maybe they think this is a good deal. But maybe they look at the treatment that men receive and think that having their own arena is not nearly enough. The point is that the women of US National Team are used to be being put in substandard arenas and in non-primetime slots. So even if they know it is unfair and even if they hate it, it was likely not a surprise when they encountered the same situation in Sochi.

Female athletes who come up through the American intercollegiate system are accustomed to differential treatment. Professionals like Victoria Azarenka who came up through a non-scholastic junior sports system do not have the same experience. This is not to say that athletes who come up in club systems around the world are treated equitably (in another sport movie reference: Bend It Like Beckham). I am sure almost every professional female athlete can share stories about gender inequality. But in a sport like tennis--or basically just tennis--where pay equity is less and less of an issue, players might be a little surprised that there are other gender issues to tackle.

And heading back to where Title IX is a factor: interscholastic and intercollegiate sports are still failing miserably in their obligations for equal treatment. We wrote an article about this five years ago. We could easily write another today with just examples from the past few years.Trickle down or trickle up change--it does not matter in what direction or who is doing the influencing, but remedies to these inequities will only come with changes to attitudes about women's sports and female athletes.

Friday, July 07, 2017

If you can't dismiss them, settle them

Baylor University has settled one of the six lawsuits it is facing over its handling of sexual assaults. This lawsuit had a single plaintiff, a former student who said she was drugged, kidnapped, and raped in February 2015 at an off-campus party at what is known as the rugby house. The lawsuit, in part, accused Baylor of not properly handling her reporting of the incident. It also revealed what is now undeniable--that Baylor has an extremely dangerous culture and that has not effectively addressed the climate.

After initial contact with the Title IX office, the plaintiff found out--from that office--that multiple other women had reported sexual assaults at the rugby house. They worked with her for several weeks and then nothing. There was no hearing. She left Baylor after a failed appeal over a poor grade--due to her trauma from the rape.

Baylor had moved to have the lawsuit dismissed in October.

Details of the settlement were not released. 

The school has settled with three other women who did not filed lawsuits. There are now five lawsuits pending against the university.

Wednesday, July 05, 2017

Recent happenings: Florida, Baylor, Michigan State

Amidst the ever-growing pile of evidence that civil rights laws and statutes will not be defended, inspected, upheld by this administration (suspect nominations, budget & staffing cuts, etc.), there was some good news this week. OCR is investigating the University of Florida's handling of a sexual assault accusation against football player Antonio Callaway. We discussed this case last year when Callaway faced a student disciplinary hearing because the hearing itself was unusual in that it was presided over by a football booster who is also a lawyer. UF had never brought in an outsider to preside over disciplinary hearings and that this person was overseeing a case involving a football player was deeply suspect. The accuser herself boycotted the hearing.  No one from UF will speak on the matter because the investigation is ongoing. The accuser--who filed the complaint--and her team have previously commented on the situation.

Baylor must have an abundance of shovels because they just keep digging themselves deeper and deeper. Most recently, a former regent (who was on the board at the time of many of the alleged incidents of rape) chastised the alcohol consumption habits of female undergrads at the school during  series of 2009 emails about alleged sexual misconduct on campus. The former regent, and district attorney, Neal Jones's emails are part of evidence in one of the six current lawsuits against the university. Because underage drinking violates Baylor's Christian-based standards, Jones implies--at best--that the issue should be moot. Except his language reveals significant misogynist blame: “Those perverted little tarts had better be thanking their lucky stars that my guns are all aimed at a worse group of insidious scoundrels than themselves for the time being.” The plaintiffs (there are 10) contend that these attitudes about women and drinking and sexual assault--which existed, as evidenced--at the highest levels of Baylor leadership, contributed to the culture of sexual violence and the lack of appropriate responses to the reports of sexual assault.

Last week Baylor asked for one of the lawsuits it is facing be dismissed. This lawsuit has a single plaintiff, a former volleyball player, who alleges she was drugged and gang raped in 2012 by up to eight football players. Baylor contends that her right to make these claims expired in spring 2015. They also protested the language of her lawsuit which they felt was inflammatory and they are trying to strike from the court record her contentions that Baylor promised sex with female hostesses to football recruits.

It does not seem likely the the move to dismiss will be granted, though Baylor has now attempted to get all six of the lawsuits it is facing dismissed. A district court judge said in March that Baylor sexual assault victims will have until 2018 to file lawsuits against the university.

Far north of Texas, Michigan State University has also been dealing allegations of sexual assault against football players. At this time, the situation at MSU does not appear to be as widespread as at Baylor and officials actually investigated the January assault. These assaults are starting to look eerily familiar: a woman raped by more than one athlete and the incident being recorded. The three MSU football players were dismissed from the team in February (after criminal charges were filed) and subsequently found guilty by the school of violating the sexual misconduct policy and expelled this past week. The lawyer for one of the accused criticized the university's investigation for not being thorough citing all the evidence currently entered as part of the criminal trial thus reinforcing the misconception that student hearings are similar to the criminal justice system. A hearing for the men is scheduled for September. In another departure from Baylor, MSU hired an outside firm to investigate the football program after the allegations became known.

Monday, July 03, 2017

Litigation Roundup: School Districts Lacking Notice

In several recent cases, courts rejected claims that school districts were liable for sexual misconduct by employees or students due to lack of notice.  Here are case summaries:

The Fifth Circuit Court of Appeals reversed a district court's judgment in favor of a plaintiff who sued the South San Antonio Independent School District after having been molested by the vice principal, later principal, of the elementary school he attended.  After the jury awarded the plaintiff $4.5 million, the school district moved to dismiss the case as a matter of law and appealed an adverse ruling on this motion to the appellate court.  A school district is liable for sexual misconduct of its employees if someone with authority to take corrective action has notice of the misconduct and responds with deliberate indifference. In this case, the plaintiff argued that because the perpetrator was the vice principal  -- someone with authority to take corrective action -- then the notice requirement was satisfied.  However, the Fifth Circuit disagreed, concluding that the perpetrator's knowledge of his own misconduct does not qualify. The notice requirement is meant to limit school district liability to only those cases where those in authority ignore sexual misconduct that they know is going on, and one does not "ignore" one's own misconduct. Put another way, the court reasoned that implicit in the notice requirement is a requirement that the person to whom notice is given is a person who does not already know that the misconduct is going on.  Otherwise, there is potential automatic liability every time someone with authority is the perpetrator.
Decision: Salazar v. South San Antonio Indep. Sch. Dist., 2017 WL 2590511 (5th Cir. June 15, 2017).

The Eleventh Circuit Court of Appeals affirmed a lower court's decision to dismiss Title IX claims filed against Bibb County (Georgia) school district stemming from the rape of a female special education student, the plaintiff in the case. The facts are terrible: A male student walked into the plaintiff's classroom and told the teacher that another teacher wanted to see the plaintiff. The teacher let her go with him, and he brought her to the bathroom where she was gang-raped by seven male students, none of whom had ever been reported for any kind of sexual misconduct.  For the district to be liable for the rape, however, there must be some prior misconduct that put school officials on notice that the plaintiff was at risk for what happened.  Considering the appeal, the Eleventh Circuit affirmed that it is not necessary for a plaintiff to show that she herself had reported prior incidents, nor that the perpetrators themselves had been the subject of such reports.  Still, however, there must be a reasonable enough similarity between the prior incidents and the plaintiff's rape to put school officials on notice, and the appellate court agreed with the district court that such similarity was lacking here.  There had been prior incidents of sexual assault in the high school; one of which did not involve students in the special education program and so could not serve as notice that students participating in that program were at an elevated risk.  The other did involve special education students, but the circumstances were different as the students involved had been left alone unsupervised in a classroom, whereas here, the perpetrators used deceit to extract the victim from her classroom.  Therefore, there was nothing on which to base a claim that the school district should have acted to prevent the rape that occurred here.
Decision: Jane Doe v. Bibb County Sch. Dist., 2017 WL 2240825 (11th Cir. May 22, 2017).

The parents of an eighth grader can not pursue their lawsuit against the Independent School District of Delaware County (Oklahoma) that stems from a romantic and sexual relationship that occurred between their ninth-grade daughter and her basketball coach, an employee of the district. The federal district court in Oklahoma granted summary judgment to the district on the parents' Title IX claim because their were no allegations that the school district was indifferent to the coach's sexual misconduct that was known to appropriate school officials. Once the principal learned of a rumor that the coach and the student had been locked in a room together, he and the superintendent investigated and quickly got corroboration by the student. The coach was suspended immediately and eventually terminated. The parents argued that school officials actually had notice that this coach posed a threat of sexual misconduct to his players based on prior complaints that a couple of parents had made against the coach.  However, these complaints, which were investigated, did not involve conduct that was predictive of the sexual misconduct that occurred in this case. There had been a complaint that the coach sometimes texted individual players, and sometimes talked about butts in practice. But the investigation revealed that the texts and the comments were related to basketball and reasonably handled by an order to the coach not to text individual players any more. In the absence of deliberate indifference to sexual misconduct that was known or foreseeable to school officials the school district was not liable for damages arising from the the coach's sexual misconduct with the plaintiffs' daughter.
Decision: Callihan v. Indep. Sch. Dist. No. 1., 2017 WL 2783990 (N.D. Okla. June 27, 2017).

Monday, June 19, 2017

Commission on Civil Rights to Investigate Federal Civil Rights Enforcement

The U.S. Commission on Civil Rights recently launched a "comprehensive two-year assessment of federal civil rights enforcement" that will examine "the degree to which current budgets and staffing levels allow civil rights offices to perform their statutory and regulatory functions, the management practices in place in the offices and whether these practices are sufficient to meet the volume of civil rights issues within the offices’ jurisdiction, and the efficacy of recent resolution efforts from the offices."

The Commission expressly identified specific concerns across seven different agencies as motivating factors for this investigation.  Among them was the Department of Education, which was called out because:
The proposed budget calls for reducing staffing by 7 percent (losing 46 full time equivalent positions) at the department’s Office for Civil Rights, which investigates sex, race, disability, and age based civil rights complaints.4 The proposed budget itself reflects that the cutbacks would result in an untenable caseload of 42 cases per staff member. These proposed cuts are particularly troubling in light of Education Secretary Betsy DeVos’ repeated refusal in Congressional testimony and other public statements to commit that the Department would enforce federal civil rights laws.
The Commission on Civil Rights is an independent agency, meaning that its eight Commissioners are appointed to serve six-year terms and (unlike the heads of agencies that report to cabinet members) cannot be fired by the president over political disagreements. It is also a bipartisan commission, set up to ensure that is not dominated by members of one political party and includes a mix of members appointed by both the President and congressional leadership. The Commission is currently chaired by Catherine Lhamon, who formerly served as the Assistant Secretary of Education for Civil Rights and was appointed by President Obama in the last month of his term. The Commission does not have enforcement authority, but rather, serves an advisory function by issuing reports about civil rights enforcement to the President and Congress. Therefore, its present investigation cannot directly change the civil rights practices in the Department of Education or other federal agencies. However, by exposing shortfalls in civil rights enforcement, the investigation could generate political pressure on the President and Congress to make changes, as well as provide information for voters to consider when the current President and members of Congress run for reelection.

Thursday, June 15, 2017

OCR Scales Back Investigation Process

A new internal memorandum from the Acting Assistant Secretary for Civil Rights Candice Jackson instructs OCR investigators in the regional offices that they should no longer automatically conduct systemic investigations in response to individual complaints.

Previously when OCR investigated institutions for violations of Title IX or other civil rights laws, it would request three years of data and files from the institution so that it could determine whether whatever allegation was being investigated was part of a widespread or broader compliance problem. For example, say a student filed a complaint with OCR alleging that the institution took too long to resolve her complaint of sexual assault. OCR would not only investigate that claim but other sexual misconduct complaints that the institution processed over the last three years.  The agency may then determine that "promptness" was an issue in several other students cases besides (or even instead of) the one that triggered the investigation. Going forward, however, OCR will not automatically do that extra digging into the institution's historical files.

That said, the memorandum provides OCR investigators with discretion to request comparative data from an institution when it is required by the legal analysis called for in the complaint.  In the Title IX context, an example of this would be when a student files a complaint with OCR against an institution alleging that the institution denied him procedural rights on a sexual misconduct hearing, because of his sex. In order to determine whether there is a pattern of treating respondents of one sex differently from respondents of another sex, it would be necessary for the investigators to request comparative data about how the institution handled other sexual misconduct cases.  (I made up this example, but based it off the hypothetical example in the memo about a racially discriminatory suspension).  The agency would also have to conduct a systemic investigation when it is investigating a complaint that takes a "class action approach" and alleges systemic violations.

Here are some of my thoughts about this change in OCR's approach:

  • Agree or not, this kind of change about how the agency conducts investigations is a matter that is within the agency's discretion. 
  • It the kind of change that is politically consistent with administration that takes a skeptical view of government regulation in general.  
  • In my opinion, when OCR did examine three-years worth of data, the resulting findings gave a clearer picture of the institution's overall compliance approach. Though sometimes the picture was damning, it could also be somewhat exonerating -- such as if the agency says "we looked at three years worth of data and all we found was one case where the resolution was not prompt." I personally found that kind of context helpful to understanding the extent of compliance problems within institutions and in general.
  • It is also worth keeping in mind that in the Title IX context, the agency's prior practice of conducting broad investigations did not expose institutions to risk of a greater penalty. Unlike some areas of law where an entity is fined per violation,OCR resolutions are always aimed at ensuring that violations do not continue going forward. 
  • On the other hand, OCR's former approach was very time-consuming. Its practice of looking deeply into each complaint may have prevented it from being able to look into other complaints at all. 
  • It is difficult to imagine how OCR would otherwise be able to process the hundreds of sexual misconduct related complaints (not to mention other civil rights complaints) that is has in its backlog, especially given that the President has proposed to drastically decrease the agency's funding rather than increase it. 
  • On the bright side, implicit in the memo appears to be an affirmation that when a complaint does allege systemic violations, the agency will conduct an appropriately broad review, which I appreciate. 

Thursday, June 01, 2017

Insufficient Allegations of Bias Result in Dismissal of Title IX Claim Against University of Colorado

One of the most contentious legal issues in disciplined-student cases under Title IX is what level of detail the plaintiff needs to include in the complaint in order to avoid having the claim dismissed at the outset of litigation, prior to either discovery or trial. Many male students who have sued to overturn expulsion or suspension for sexual assault include a sort of reverse-discrimination argument; i.e., that the institution violated Title IX because it was motivated to punish them because of their sex.

Courts will dismiss any complaint that does not include enough detail to put the defendant on notice of what, exactly, they are being sued for; yet at the same time, because the law permits defendants to file motions to dismiss early in the litigation process, courts also try not to punish a plaintiff for not having the information they haven't yet had the opportunity to discover. In civil rights cases generally, it is challenging for courts to consistently draw this line, and Title IX claims in disciplined-student cases seem to be particularly challenging. Courts tend to agree on the language they use to describe the pleading standard ("minimally plausible inference" " no "conclusory allegations"), but not necessarily on what that standard means in practice.

In a recent district court decision, a federal judge in Colorado dismissed a disciplined-student's Title IX claim after concluding that his allegations of bias did not meet the pleading standard. Specifically, the plaintiff alleged that university officials involved in his disciplinary proceeding were biased against his sex because:
* the Title IX coordinator and the person who investigated his case were both women
* the investigator had a background in victim's advocacy
* an article in the Chronicle of Higher Education once attributed a statement to the investigator that used the word 'perpetrator' --as in, "the process is designed to expel or suspend perpetrators" which the plaintiff claimed was evidence of her bias that everyone accused of assault is guilty.
* the fact that the university was under investigation already by the Department of Education for mishandling sexual assault, which the plaintiff alleged created external pressure to rush to judgment in his case.
* a pattern that respondents in sexual assault cases tend to be male.

None of these allegations created a minimally plausible inference of gender bias, ruled the court. The first three were rejected for what I suggest are non-controversial reasons. Bias can not be inferred from someone's sex or previous work experience.  Using the word "perpetrator" alongside "expelled" (which, the court noted, wasn't even a direct quote and could have been the reporter's word rather than the investigator's) in no way suggests that those who have not in fact perpetrated sexual assault should also be expelled.

The court's rejection of the last two allegations, however, illustrates the division among federal courts.This court interpreted the plaintiff's "external pressure to rush to judgment" argument as, at most, creating an inference of bias against those accused of sexual assault, which is different from bias against men. Even though men are more likely to be respondents, the court reasoned, it is not the university's decision to place them in that category, it is students themselves who do so. It is plausible that a university would have been just as motivated to disciplined a student for sexual assault if a female student had been the one accused. Yet, other courts have been willing to except the "external pressure" allegation as well as other allegations that equate bias against those accused of sexual assault with bias against men.

This decision contributes to what appears to be an emerging patchwork of districts and circuits that are more or less favorable to Title IX claims in disciplined-student cases.

Decision: Doe v. University of Colorado-Boulder, 2017 WL 2311209 (D. Colo. May 26, 2017).

Wednesday, May 31, 2017

Appeals Court Rules in Favor of Transgender Student's Preliminary Right to Use the Bathroom

Yesterday the Seventh Circuit Court of Appeals affirmed that transgender high school student Ash Whitaker may not be barred from the boys' bathroom while he litigates his case against the school district.  Whitaker, who identifies as male, sued the Kenosha Unified School District in Wisconsin after it restricted his access to the boys' restrooms because his natal sex is female. After Whitaker sued under Title IX and the U.S. Constitution's Equal Protection Clause, he sought a preliminary injunction that would allow him to use the correct bathroom while his case is being litigated; a lower court agreed and the school board's appeal of that decision produced yesterday's landmark ruling.

What made the Seventh Circuit's decision noteworthy is that it is the first time a federal appellate court has construed Title IX directly to cover discrimination against transgender students in the context of bathrooms. Another federal appellate court, the Fourth Circuit, reached a similar conclusion in Gavin Grimm's case, but only after extending judicial deference to the Department of Education's former interpretation of Title IX's application to transgender students' bathroom usage. The Department of Education's subsequent withdrawal of that interpretation meant that future courts could not rely on it as the basis for their rulings, as the Fourth Circuit had done, but did not foreclose courts from reaching the same interpretation on its own -- which the Seventh Circuit did yesterday.

When deciding to grant a preliminary injunction, a court must decide among other factors, that the plaintiff is likely to win on the merits. The Seventh Circuit agreed that Whitaker would likely prevail on his argument that Title IX's ban on sex discrimination encompasses discrimination against transgender students. Even though an earlier decision from that court rejected the idea that sex discrimination laws covered transgender plaintiffs, the court acknowledged that subsequent Supreme Court caselaw interpreted the concept of sex discrimination more broadly to include discrimination based on gender stereotypes. And what is transgender discrimination, reasoned the court, than discrimination that targets an individual for presenting in a way that's different from what society expects based on the sex that person was assigned at birth.

Additionally, the court also found that Whitaker was likely to succeed on his Equal Protection claim.  Applying heightened scrutiny, the court recognized that the school would be unlikely to justify treating Whitaker differently from other students, who are permitted to use the bathroom that matches their gender identities. Though the school district claimed to be protecting students' privacy, the court could not see any evidence, at least at this preliminary stage of litigation, that anyone's privacy is infringed in bathrooms that have stalls. The court viewed the privacy "threat" from Whitaker no differently from any other student who may happen to be in the bathroom at the same time as another user. To the extent that Whitaker's different anatomy from other boys somehow makes privacy considerations different, the court noted that students with different anatomy use common bathrooms all the time, there being no effort by the school district, for example, to segregate pre-pubescent adolescents from those whose bodies are different and more mature.

What will happen next in this case? Theoretically, the school district can try to get the ruling overturned internally by the court, by seeking a rehearing in front of the full court.  But, the court's decision notes that Whitaker is a high school senior and it is already May.  Therefore, a decision by the full court would be unlikely to interrupt the preliminary relief he has obtained.  More likely, therefore, the case will continue to litigate the merits. Whitaker has also sued for compensatory damages, so that aspect of the case will not be mooted by the fact of his graduation from high school.

Monday, May 29, 2017

Study Examines Faculty-on-Student Harassment

Professors Nancy Chi Cantalupo and William Kidder have posted a forthcoming study about an aspect of campus sexual misconduct that warrants more public discussion: the sexual harassment of students by faculty members.  They studied media reports as well as lawsuits and administrative complaints, amassing a data set of over three hundred cases. As they put it in the abstract,
Two key findings emerged from the data. First, contrary to popular assumptions, faculty sexual harassers are not engaged primarily in verbal behavior. Rather, most of the cases reviewed for this study involved faculty alleged to have engaged in unwelcome physical contact ranging from groping to sexual assault to domestic abuse-like behaviors. Second, more than half (53%) of cases involved professors allegedly engaged in serial sexual harassment. Thus, this study adds to our understanding of sexual harassment in the university setting and informs a number of related policy and legal questions including academic freedom, prevention, sanctions, and the so-called “pass the harasser” phenomenon of serial sexual harassers relocating to new university positions.
Here is a link to the study, which will be published in the Utah Law Review.

Friday, May 26, 2017

New University of Oregon Alters Faculty Mandatory Reporting Status

The Chronicle of Higher Education reported today about the University of Oregon's notable decision to amend the responsibilities of faculty member who learn about sexual misconduct in the university's jurisdiction. Currently, faculty members like most university employees at Oregon and elsewhere are required to report to the Title IX Coordinator when a student discloses (or they otherwise learn) that he or she has been sexually assaulted. The trend toward assigning faculty members responsibility as mandatory reporters resulted from the Department of Education's policy statements clarifying universities' obligations under Title IX to respond appropriately to Title IX. Universities had in the past defended some of their failures to respond to instances of sexual assault by claiming that appropriate officials were not aware of what had occurred. So to minimize the possibility that communication gaps could undermine universities' prompt and equitable response, it made statements broadly defining mandatory reporters.  In particular, the Department's 2014 Q&A document requires universities to mandate reporting from anyone who has the "authority to take action to redress sexual violence," or anyone who a student could "reasonably believe" has such authority. Universities have generally interpreted this requirement broadly to include faculty.

But many have criticized the mandating of faculty members' reporting as undermining its intended objective of helping to protect sexual assault victims. Some believe that students expect faculty members to honor requests for confidentiality and feel betrayed when a faculty member is not able to do so because of policies that require reporting. It is possible that the fear of such betrayal deters victims from reporting. On the other hand, the fear that the university will not respond is also believed to deter victims from reporting. So universities must address this issue with care.

The University of Oregon believes its new approach, will takes effect this fall, will do a better job encouraging students to disclose without undermining the communication required to initiate an institutional response. Faculty members will neither be mandatory reporters nor fully exempt from reporting, but will have the ability to use discretion to decide the reporting question. As the Chronicle summarized, "If a student says she was raped but isn’t ready to a report it, her professor can generally honor that request." But the faculty member must also provide the student with information about reporting, as well as other resources, and they must even consult a campus health counselor to make sure they have done everything they can to help the student.

Even with those other responsibilities in place, what still worries me about this policy is that when information is not channeled to a centralized office, fewer people are in a position to notice the kinds of patterns that could reveal a genuine threat. What if three different students confidentially report to three different professors that they have been sexually assaulted by the same student? If the reporting students do not know about each other, then neither will the professors. The professors will therefore underestimate the risk of not reporting and decide to honor the student's request for confidence. This possible downside of Oregon's new policy is only worth it, in my opinion, if it truly serves to increase reporting overall. I wonder -- and hope -- there is some way to measure the impact of this policy change in order to help accurately weigh the tradeoffs involved.

Friday, May 19, 2017

Iowa settles for $6.5 million

The University of Iowa will reportedly pay $6.5 million to avoid further litigation in the discrimination lawsuits filed by former associate athletic director Jane Meyer and former field hockey coach Tracey Griesbaum.  Griesbaum's lawsuit, which had been scheduled for trial next month, alleged that she was wrongfully terminated and that the athletic director had a pattern of firing female coaches. Meyer, Griesbaum's partner, successfully convinced a jury earlier this month that she was fired in retaliation for complaining about that and other examples of sex discrimination within the department. The jury had awarded Meyer $1.45 million, but this amount was subject to increase if the court decided to award punitive damages. Under the settlement, Meyer will instead receive $2.33 million, Griesbaum $1.49 million, and their attorneys, $2.68 million.

As the settlement only affects litigation, it does not affect the ongoing investigation by the Department of Education into claims that the university violated the Title IX rights of Griesbaum's athletes when it fired their coach.

Monday, May 15, 2017

Iowa Verdict in Context

Earlier this month, former athletic administrator Jane Meyer won her case and a sizeable $1.43 million jury award against the University of Iowa. I was traveling out of the country when it happened and could not blog about it until now, but my delay in posting in no way detracts from what big news I think this is. Meyer sued the university for retaliation in violation of Title IX when she was transferred outside the department the day after she submitted a memo to the athletic director describing the sex discrimination she had experienced and witnessed within the department. Some of her grievances had to do with the athletic director's decision to reassign some of Meyer's responsibilities to a newly-created deputy AD, a position filled by a male who was paid $70,000 more than Meyer. Meyer also objected to the firing of female head coaches, including her own partner Tracey Griesbaum who lost her position at the helm of the university's field hockey team even though an internal investigation cleared her of the complaints of bullying and harassment for which she had been accused. (Griesbaum's own lawsuit against the university is still pending.)

The jury agreed that the university violated Meyer's civil rights and awarded her $374,000 for back pay, $444,000 for past emotional distress, and $612,000 for future emotional distress. She is reportedly seeking an additional $2 million in reimbursement for legal fees and in punitive damages which may be allowable based on the jury's finding that the university's violations were "willful."
Meyer is not the first veteran female leader in college athletics to challenge sex discrimination and retaliation within her department. Just last fall a jury in California awarded over $3 million to Beth Burns after seeing her university's stated reason for firing her as pretext for retaliation. In another recent example, the University of North Florida paid over a million to a terminated female coach last year.  In the more distant past, we've blogged about jury awards and settlements for female coaches and administrators who endured retaliation and sex discrimination at Fresno State, Florida Gulf Coast University, Iowa State, and Cal-Berkeley, for example. Cases currently pending against Minnesota-Duluth and Griesbaum's case against Iowa could add to this list as well.

Together these cases remind us that even in this Title IX era, college athletics is a contentious workplace for female coaches and administrators. And when you consider that lawsuits are likely only filed when the plaintiff has nothing left to lose, it is easy to imagine that there are likely countless unknown other examples of discrimination that are almost as bad. When the media bemoans the dearth of female leadership in college athletics, these lawsuits hold some clues about many of the reasons why.

But the success of these plaintiffs also raise a critical question about how much litigation it will take to see athletic departments change their culture and behavior towards female coaches and administrators. Why wasn't Fresno State, for example, enough of a warning to prevent Iowa from repeating its pattern of mistakes?  It's important that the Polk County, Iowa, jury sent a strong message to college and university athletic departments that retaliation and discrimination doesn't pay, but are other athletic departments getting the message?

Thursday, April 13, 2017

Another Baylor Lawsuit Survives Motion to Dismiss

Last week a federal court in Texas ruled that Jasmin Hernandez's case against Baylor may proceed to the discovery phase of litigation, denying the university's effort to dismiss the case for insufficient pleading. The plaintiff alleged that she was sexually assaulted at a party by football player Tevin Elliott. Even though (she alleged) she reported the assault to various university officials, including the football coach Art Briles the university did not take any efforts to investigate or discipline Elliott. She also alleged that prior to her assault, another student had reported Tevin Elliott to the university's chief judicial officer for similar behavior, and that this student was told she was the sixth such student to do so. As such Hernandez claimed that Baylor was on notice of the risk posed by Elliott and was liable for the deliberate indifference that heightened the risk that she would be assaulted. Additionally, she alleged that Baylor was liable for deliberate indifference after she reported her assault, which contributed to her emotional harm.

Both of these claims were sufficiently alleged in the complaint, the court ruled.  However, the latter claim for post-reporting harm was barred by the statute of limitations because the events occurred more than two years ago.  Though the heightened risk claim was also based on events more than two years old, the plaintiff could not have have discovered the university's alleged concealment of sexual misconduct by football players and other students until 2016 when the report of an external investigation in Baylor's failings to respond to a pattern of sexual violence by football players. Until then, the court reasoned, the plaintiff could not have reasonably known that Baylor's alleged indifference had lead to her sexual assault, and thus the the statute of limitations did not begin to run until that time.

Hernandez v. Baylor Univ., No. 6:16-CV-69-RP, 2017 WL 1322262 (W.D. Tex. Apr. 7, 2017).

Friday, April 07, 2017

Two Key Ed Department Positions Filled This Week

This week we learned that Carlos G. Muñiz will be nominated to the position of general counsel to the Department of Education, and that Candice E. Jackson has been appointed "acting" Assistant Secretary for Civil Rights.

Muñiz once served as a deputy attorney general to Florida Governor Jeb Bush. Later, he entered private practice with the firm McGuire Woods. Notably, he represented Florida State when it was sued by a student challenging its handling of her report that she'd been raped by football player Jameis Winston. (The case, which we blogged about often, settled for $950,000.)  Because the general counsel will advise OCR on policy related to sexual assault enforcement, I was particularly interested to read the comments of John Clune, who represented the plaintiff, Winston's accuser. Clune told the New York Times that Muñiz is "approachable" and that he listened and cared about the plaintiff's positions. However, he also noted that Muñiz was critical of the investigation the Office for Civil Rights is conducting into Florida State's handling of the case. This is interesting, since the facts alleged to OCR were pretty egregious -- essentially, that FSU officials initially concealed the accusation and failed to conduct any kind of disciplinary proceeding in order to protect their star quarterback. Even a lawyer who must dispute the truth of those facts could still recognize that allegations along those lines are worthy of investigation. So Muñiz's criticism of OCR, as relayed by Clune, could indicate his belief that OCR's role in sexual assault matters (and other civil rights issues?) should be very limited. If that's true, he would likely use his position to press for changes to OCR's current policy of insisting educational institutions engage in prompt and equitable response to charges of sexual assault.

Jackson, an attorney in private practice, also created the "Their Lives" foundation, to "give a voice to victims of those who abuse power, particularly when that abuser is another woman." Despite the general-sounding nature of this description, the foundation's website seems devoted to giving a voice to Kathy Shelton's claims that she was the victim of abuse of power by Hillary Clinton when Clinton was appointed by the court system in Arkansas to represent Shelton's rapist. Does Jackson's public record of support and concern for a rape victim mean she will maintain or strengthen OCR's policies regarding institutional response to campus sexual assault? Or are her politics more anti-Clinton than anti-rape? Given that Jackson is only known as a critic of the Clintons, her appointment by Clinton's opponent could appear to some as one motivated by political patronage rather than merit. However, Jackson's appointment to "acting" Assistant Secretary for Civil Rights avoids scrutiny on this issue, as acting officials do not need to be approved by the Senate. Notably, however, federal law limits her term of service for no more than 300 days (technically, 210 days from 90 days after the President assumes office, i.e., until approximately November 16). It also prohibits the acting official from simultaneously being the nominee for the permanent position.