Tuesday, August 15, 2017

Jury Finds Insufficient Evidence of Sexual Orientation Discrimination By Pepperdine

On Friday a jury in California delivered its verdict in favor of Pepperdine University, citing insufficient evidence to support the plaintiffs' claim that that women's basketball coach discriminated against them when they were players on his team by singling their dating relationship out for scrutiny and prohibition. Pepperdine had argued that the coach was targeting their dating relationship for its effect on team chemistry, rather than the fact that the players were lesbians.

The jury apparently thought the evidence did not support the plaintiffs' version of the coach's motives, but the fact that the case even made it to a trial was notable in itself. That is because the plaintiffs sued under Title IX, which prohibits sex discrimination and does not expressly mention anything about discrimination on the basis of sexual orientation. But the court allowed the case to proceed by recognizing that sex and sexual orientation discrimination were conceptually entwined. Even though the plaintiffs did not win at trial, the fact that a court agreed that Title IX covers sexual orientation discrimination will likely help future plaintiffs challenge sexual orientation discrimination they may face in athletics and other aspects of education where Title IX applies.

I know that lots of coaches, mainly in women's sports, have concerns about the effect of teammates' dating relationships on team chemistry. Even though Pepperdine prevailed at trial in this case, the fact of Title IX's potential application to sexual orientation discrimination means there is still a legal reason for coaches to be careful about how they regulate team chemistry -- as well as ways they can do a better job than Pepperdine to potentially avoid this kind of litigation in the first place.  For one thing, coaches that are concerned about team chemistry should address all kinds of relationships that could cause problems besides players in same-sex relationships with each other.  This could include players dating student managers and trainers, whether same- or opposite-sex, teammates on different-sex teams that practice and travel together, and close friendships that have the potential to be clique-ish and divisive. Secondly, coaches should be clear that they are regulating behavior during time that is relevant to the team (practice, competition, travel, team meetings and events), not the relationships per se. If a coach is worried that dating players will seclude themselves from the rest of the team, or bring drama and division in the event of breakup, then that is what the coach should regulate, not the relationship itself. Moreover, it should be clear that these conduct expectations apply when the players are on "team time."   Here is a good example of these principles in a model policy posted by NCLR.


Wednesday, August 09, 2017

Gender policing in youth sports

In early June, the story of Mili Hernandez, an 8-year old soccer player from Nebraska, made national headlines. her team, playing in a youth tournament, was disqualified right as they were about to play in the finals because organizers thought Mili was a boy. Rather an anonymous person told officials that a boy was playing on a girls' team. And the team had to go home. {I have a breakdown of this situation below.}

There was outrage and support from current and former professional soccer players. It was not a Title IX issue because it was a youth sports league run independently from interscholastic sports governance. So, though outraged it did not make it onto the blog. But now another story of questioning gender in youth soccer has arisen, and it seems like a good time to bring Title IX into the discussion.

A girls' club soccer team in Madison, Wisconsin has several short-haired players (some of whom model their style on favorite players like Abby Wambach and Megan Rapinoe) who experience what Hernandez did but on a regular basis. They have not been disqualified from games or tourneys but other teams ask questions of their parents, coaches, officials, and of them. They try to "catch" the girls by asking them their names. The team is accused of cheating. This persists even though the club system in which the team plays requires birth certificates from each child before she can be rostered on a team. The certificates are used to check for age and for sex. Cheating, in other words, would require forging birth certificates.

In some ways it is very simple. Some people have short hair and some people have long hair. And some people style their hair after people they want to emulate (remember the Rachel?). And kids play soccer.

The thing about gender is that everyone knows what it "should" look like--even if one cannot or chooses not to conform to the norms or expectations. This means that if a girls' team was to engage in cheating by including boys on the roster, the boys would be feminized in some way so as to avoid getting caught.

I can't believe I had to write that sentence. I do not want to live in a world where people are convinced that short-haired female soccer players are not boys because boys trying to pretend they are girls would know how to look like girls. That is the logic of the deeply gendered culture in which we live.

But there must be something else going on if people cannot stop and use that logic. And that is why gender is complicated. Because it is imbued with power. It is about access. It is about boundaries. In sports, those boundaries remain very tightly monitored.

What was interesting about the Madison situation is that the coach was initially skeptical about what her players' parents were saying about how the team was treated. This is likely because the team is based in Madison--a liberal college town. But one, a town that is sports obsessed and two, is in a a conservative state. In other words, how a region or town interprets or polices gender norms differs. For example, a look at the map at TransAthlete shows state interscholastic associations' gender identity policies.

The policy in Nebraska, where Hernandez plays, is the same as the old IOC policy. It requires gender reassignment surgery (we are talking about children remember) and a waiting period after the start of hormone treatment. The policy in Wisconsin is that each case is assessed as it arises. These policies reflect the cultural beliefs and can be used to predict how, for example, people might respond to short-haired soccer players on girls' teams.

Again, the interscholastic associations make their own policies, club teams and leagues make their own policies and Title IX has nothing to do with them. But it can influence thinking. Unfortunately the current administration's application of the law makes policies like the one in Nebraska--which is now more regressive than the IOC's--look more reasonable. It tightens the boundaries and it impedes logic.

Saturday, August 05, 2017

Eighth Circuit Concludes that College is Not Liable for "Single Incident" of Sexual Assault

Recently, the Eight Circuit affirmed the dismissal of claims for institutional liability arising from a single incident of sexual assault. The plaintiff, a high school student, visited Culver-Stockton College as a potential recruit of the women's soccer program. While there, she attended a party at a campus fraternity. She alleges that she was served alcohol, and then sexually and physically assaulted by a fraternity brother while she was intoxicated. She reported the incident to campus authorities, but they did not engage in any kind of disciplinary response against the perpetrator.  A lower court dismissed the plaintiff's lawsuit against the college, a decision  that the Eighth Circuit recently affirmed on appeal.

Alarmingly, the Eight Circuit concluded that the reason the college was not liable for its failure to investigate and discipline the perpetrator was that the plaintiff alleged "only a single incident of sexual assault." This is  terrible mistake, and based on a strained reading of the Supreme Court's decision in Davis, in which the Court literally stated that harassment, to be actionable, had to be "severe, pervasive, and objectively offensive."  However, despite the missing "or" it is clear in the context of the decision overall, and especially in the context of the sexual harassment doctrine overall, that the Court did not mean to preclude liability based on a single-incident of misconduct that, like most forms of sexual assault, is properly considered "severe."

The Eighth Circuit opinion quotes the following sentence from the Supreme Court's decision in Davis as support for its conclusion:
"Although, in theory, a single instance of sufficiently severe one-on-one peer harassment could be said to have such an effect, we think it unlikely that Congress would have thought such behavior sufficient to rise to this level in light of the inevitability of student misconduct and the amount of litigation that would be invited by entertaining claims of official indifference to a single instance of one-on-one peer harassment."
But the context of this sentence is important to understanding that the Court was not requiring multiple incidents of rape as a precursor to institutional liability.  It comes in the middle of the section of the opinion where the majority is refuting the dissent's concern that the opinion makes schools liable for things like teasing and name-calling. That is the "peer harassment" the Court means when it says "such behavior" does not rise to requisite level of severity to create the potential for institutional liability based on a single incident. Read in its proper context, this sentence does not require that more severe conduct such as sexual assault* occur multiple times in order to create the possibility of institutional liability.  Other lower courts have had no problem interpreting the Davis decision to mean exactly that. Some have said outright that a single incident of rape is sufficiently severe, and countless others have inferred it by concluding that an institution is potentially liable in cases involving a single incident of sexual assault or rape.

I actually think that the court could have provided, or at least entertained, a more sensible reason to support the same conclusion that the college is not liable, based on the fact that the plaintiff was not a student of the college. For liability to exist under Title IX in cases of peer harassment, it must be the case that the institution's indifference has the effect of depriving or impairing the plaintiff's educational opportunity provided by the institution in question. If this case had been about the college's pre-assault indifference (i.e., if the plaintiff had alleged that some prior incident, such as an incident involving the same fraternity, the same perpetrator, or other prospective student-athletes as victims, put the institution on notice of a substantial risk of sexual assault like the plaintiff's) then the fact that the plaintiff was sexually assaulted while participating in a recruitment program provided by the college would, I think, qualify.  But this is not a case about an institution's pre-assault indifference, it is only about the damages to the plaintiff that the college caused to the plaintiff by failing to investigate the incident after it occurred. I have no doubt that this inaction was distressing to the plaintiff, but since she was not a student at the college and was no longer participating in its recruiting program for prospective student-athletes, it is difficult to see how this harm interfered with her ability to participate in the educational opportunities provided to her by the college. (To be clear, however, this analysis only pertains to institutional liability for money damages. OCR has broader enforcement and can properly interpret Title IX to require institutions to address the harm to non-students in these circumstances.)

Even though there is a basis for reaching the same conclusion, I hope that an en banc panel reconsiders this opinion and corrects the erroneous "single incident" analysis -- before it creates confusion in the lower courts.

Decision: K.T. v. Culver-Stockton College, No. 16-3617 (8th Cir. 2017).

*Granted, depending on how broadly the institution defines "sexual assault," it is possible that not everything in this category should be considered "severe." But if that's the case here, the proper disposition is for a jury to decide, not for the case to be dismissed prior to such fact-finding.

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.

Wednesday, April 05, 2017

Full Seventh Circuit Rules Sex Discrimination Includes Sexual Orientation Discrimination

Yesterday, the Seventh Circuit Court of Appeals ruled that discrimination on the basis of sexual orientation is a form of sex discrimination. The case that gave rise to the ruling involved an openly-lesbian adjunct professor, Kim Hively, who taught at Ivy Tech Community College in South Bend, Indiana.  She alleged that Ivy Tech rejected her applications for various full-time teaching positions and eventually terminated her adjunct status due to bias against her sexual orientation. She filed suit under Title VII of the Civil Rights Act of 1964, the federal law that prohibits discrimination in employment on the basis of sex and other protected characteristics, but which does not provide express protection from discrimination due to sexual orientation. For this reason, a federal district court in Indiana dismissed her case. When she appealed to the Seventh Circuit, the three-judge panel that first heard her case agreed with the district court. But, the appellate court agreed to re-hear the case "en banc" with all judges participating. The full court's decision, which came out yesterday, reinstated Hivey's case and will allow her now to try to prove to the lower court that sexual orientation discrimination did in fact occur.

Even though Hively's case continues to be litigated, it has cleared a huge hurdle and in so doing, generated a significant appellate court decision on the relationship between sex discrimination and sexual orientation discrimination. Sex discrimination is generally evident in the comparison between how an employer treats an employee of one sex versus how that employer treats another otherwise-identical employee of the other sex. Using this paradigm, the Seventh Circuit reasoned that when an employer treats positively a male employee who has a female partner (or who is attracted to women), but treats adversely a female employee who has a female partner (or who is attracted to women), that is discrimination on the basis of the employee's sex.  Though the discrimination targets the fact that the victim of such discrimination is partnered with or attracted to a person of the same sex, i.e., their homosexual orientation, such discrimination "does not exist without taking the victim's... sex...into account."  We already know that sex discrimination works in this relational way (discriminating on the basis of some characteristic, like the victim's attraction to women, in relation to the victim's sex), because the Supreme Court endorsed that way of thinking about sex discrimination when it confirmed that it encompassed gender stereotyping.  An employer's adverse action towards a female employee who exhibits a certain characteristic or appearance, but not a male employee who does the same is discrimination "that does not exist without taking the victim's sex into account." Additionally, the court considered the Supreme Court's precedent in Loving v. Virginia, which ruled that a state law banning interracial marriage was race discrimination prohibited under the Constitution. If discrimination based on the race one is oriented to is race discrimination, then discrimination based on the sex one is oriented to is sex discrimination.

The Seventh Circuit decision is the first appellate court decision to employ this reasoning (for a lower court example, see Videckis v. Pepperdine, a Title IX case). Other appellate courts in the (sometimes distant) past have ruled against the gay or lesbian plaintiff on the grounds that Congress could have, but did not, include sexual orientation as a Title VII protected characteristic. The Seventh Circuit's departure from this reasoning sets up a circuit split that gives the Supreme Court a reason to weigh in should it so choose.  Although the court's decision interprets the sex discrimination provision in Title VII, it and any Supreme Court decision that affirms it, should there be one, will no doubt be influential in the Title IX context as well, since courts routinely refer to definitions of sex discrimination from Title VII cases when analyzing what it means under Title IX.

I also think this decision, though about sexual orientation, will help support the argument that sex discrimination includes discrimination on the basis of transgender status, since transgender discrimination also targets a characteristic relative to the person's sex. Discrimination against someone because their gender identity is not consonant with their birth-assigned sex is discrimination "that does not exist without taking the victim's sex into account." I would expect the Hively decision to be cited favorably by litigants challenging exclusion of transgender students and employees from gender-consonant restrooms and other manners of discrimination.

UND and USA Hockey

The US Women's National Hockey Team is currently playing in the World Championships in Michigan. (And the team has made it through to the semi-finals.) Prepared to boycott this tournament over gross inequities in pay and treatment between them and the men's team, there was a (nearly) 11th hour resolution to the situation. (The financial terms have not been confirmed by either the team or USA Hockey but they include monthly stipends--year-round--instead of just during the Olympic year; that previous agreement amounted to a total of $6,000 over the course of four years from USA Hockey to national team members.)

It was a moment of triumph for women's sports. It was a highlight of my week--and others I know felt similarly. It was a show of solidarity and steadfastness. USA Hockey, with whom the national team had been in negotiations for over a year, initially poo-pooed the threat of the boycott and sought out other athletes--first from Division I schools, then II, III and then on to high school and rec league teams. And they never found enough players to field a team-- a team that would have been (no offense to my rec league friends) quite substandard.

The men's team also backed the women, suggesting that if USA Hockey did not prevent the boycott, they too would  boycott their upcoming world championships.

In addition, the women effectively utilized social media platforms and the mainstream media took notice. The story was widely covered, including on ESPN!

Sadly, with the ink on the contracts barely dried*, other news came out from the world of women's hockey. The University of North Dakota is cutting its DI women's team. This is a team that feeds the national teams of the US and other countries.A team that produced two of the US national team's current stars--sisters Monique and Jocelyne Lamoureux (who transferred from Minnesota).

This does not appear to be a Title IX issue though this very confusing article said Title IX was considered and something about funneling the budget from women's hockey to both men's and women's sports. Running the numbers--last year's reported figures--and taking into account that two teams were cut last year and, along with women's ice hockey, men's and women's swimming will be cut at the end of the year, they appear to be in compliance with participation opportunities.

In other words, there is little to be done. Because, unlike the US women's national team, they do not--like most intercollegiate women's hockey teams--have widespread support. And part of the reason support for the team might be low is because of institutional priorities. The money saved from the five sports cut in two years will be going to the school's football program--no matter what UND says. Yes, state budget cuts are likely coming and the cuts are a response. But cutting these teams to address those budgets are a choice--an institutional choice--that allows the university to maintain the financial support to football-- a program that recently (2012) joined the "big time" Big Sky Conference--a move that requires a lot of capital.

I think USA Hockey was genuinely surprised by the support the national team rallied. They pushed back hard against a team that represents them and represents them well (despite the lack of support these women receive from the organization). In other words, USA Hockey was forced  to bow to the pressure of popular opinion and a culture of community within the world of hockey.

I don't know if UND can garner that support. The Lamoureux twins have made public statements about the cut and sent a letter to the university president asking for the team to be reinstated. They have said will use similar tactics employed by the national team in its campaign. And maybe it will work.

But I had hoped that the "mere" fact that this is a highly successful team that sends its players on to the Olympics would have been enough for the administration to put it in the keep column. That they would see being the only intercollegiate women's hockey program in the state as a responsibility. That these accomplishments and status would be a source of pride and perhaps even marketing for the school.

But maybe I should not be too surprised that a university which put its own athletic teams--including football--in jeopardy by continually defying and fighting the NCAA's ban on Native American mascots, does not know how to act in its own best interests, let alone ethically.


* it seems as good a time as any to trot out this cliche.

Tuesday, April 04, 2017

Title IX Dress Code Case Survives Motion to Dismiss

We often read about school dress code controversies, like students objecting to traditions that sort students by sex into different color graduation robes, or imposing a gender dress code on prom attire or yearbook photos. I've always thought that issues like these were ripe for Title IX challenge, since this is clearly treating students differently on the basis of sex in the absence of a statutory or regulatory exception. Litigation challenging these gendered dress codes, however, is rare. I think the reason is that is that high profile cases of public school dress codes are limited to special occasions (prom, senior pictures, cap and gown) that target students who are on the verge of graduation, and therefore no longer having standing or motivation to challenge the policy. Private schools are more likely to have gendered dress codes that govern students' day to day attire, but these schools are less likely to be subject to Title IX because many if not most private secondary schools don't receive federal education funding.

Recently, however, three students, via their parents, sued a charter school in North Carolina, challenging its policy that requires girls to wear skirts, jumpers and prohibits them from wearing shorts or pants. They argue that the policy "subjects them to archaic sex stereotypes about what constitutes appropriate behavior and conduct for girls, reinforcing the notion that girls, but not boys, must dress and behave modestly, that they are less physically active than boys and that they should behave and dress in a manner that is otherwise traditionally considered appropriately feminine." 

The plaintiffs claim that because the charter school is a statutory defined public school, its gender-based dress code violates the U.S. Constitution.  The school moved to dismiss this claim, arguing that the students knew about the dress code when they voluntarily enrolled at the charter school. However, the court pointed out, there is no doctrine of waiver when it comes to constitutional rights. The plaintiffs will thus be able to continue to press their argument that the dress code is rooted in generalizations and stereotypes and thus impermissible under the standard of heightened scrutiny articulated in U.S. v. Virginia

Additionally, the plaintiffs' Title IX claim survived the school's motion to dismiss. The plaintiffs properly alleged in their complaint that the school receives federal funding, that the policy discriminates by sex, and that the plaintiffs are harmed by the policy. In support of its motion to dismiss, the school argued that in 1982, the Department of Education repealed a Title IX regulatory provision that prohibited gendered dress codes. The school argued that the repeal constitutes evidence of the Department of Education's position that gendered dress codes are, therefore, permissible. However, while courts generally defer to agencies regulations that fill in gaps and details of broadly-worded statutes, this court understandably hesitated to defer to the school's argued inference that repealing the prohibition constituted permission for gendered dress codes. Title IX, notably, is a blanket ban on sex discrimination except where statutory and regulatory exceptions permit. Given the statute's structure, I don't think that a court is obligated to infer that the agency's repeal of an earlier provision about dress code is tantamount to creating an exception.

The court also noted that the USDA, a federal agency which also distributes federal funds to educational institutions in the form of a school lunch subsidies, also has Title IX regulations, which do in fact prohibit “discriminat[ing] against any person in the application of any rules of appearance.”  The court reasoned in its decision on the motion to dismiss that the case had not yet produced enough of a record for it to determine whether the USDA regulations were applicable and warranting judicial deference. The court appears willing to eventually decide how both the USDA and DoE regulations factor in to judicial interpretation of Title IX on the question of gendered dress codes, but it wasn't ready to do so early in the litigation. When the court eventually does so, however, the case could send a message to schools that this and other manners of gendered dress codes -- including the more commonly encountered policies governing prom, yearbook, and graduation ceremony -- are unlawful.

Decision: Peltier et al. v. Charter Day School, No. 7:16-CV-30-H, 2017 WL 1194460 (E.D.N.C. Mar. 30, 2017).

Tuesday, March 28, 2017

Title IX Extends to Rapes at Fraternity, Court Rules

A federal court in Kansas decided earlier this month that Kansas State University potentially violated Title IX when it failed to investigate two students' reports of having been raped while attending parties at off-campus fraternity houses. The university argued in support of its motion to dismiss two plaintiffs' separate lawsuits that the fraternity house was not a "program or activity" of the university to which Title IX applies. But the court disagreed, distinguishing a fraternity house from other non-university housing or settings on the basis of the "substantial control" the university exhibits over the fraternity. In particular, the university regulates fraternities' conduct and authorizes its parties. In fact, in this case, the university used one of the plaintiff's report of rape as grounds to penalize the fraternity for alcohol violations. Other indicia of the nexus of control include the university-hired staff members who provide service and support to fraternities and sororities, and the university's recognition of fraternities and sororities on its website as student organizations. Notably, the court reached its decision that Title IX extends to sexual misconduct taking place at off-campus fraternity houses without extending any deference to OCR's 2011 Dear Colleague Letter, which also interprets Title IX in similar fashion. So even if OCR changes or withdraws the Dear Colleague Letter, such potential future changes in OCR policy will not affect this aspect of the ruling.

These decisions are only preliminary ones that allow the cases to proceed to the discovery phase of litigation. The plaintiffs will still have to prove that the university had notice of their rapes and responded with deliberate indifference. However, it seems undisputed that each notified the university and the university did not respond at all. Maybe the university will try to appeal the lower court's decisions not to dismiss, but otherwise my prediction is that the parties settle.

The two decisions are:

Weckhorst v. Kansas State Univ., No. 16-CV-2255-JAR-GEB, 2017 WL 980456 (D. Kan. Mar. 14, 2017).

Farmer v. Kansas State Univ., No. 16-CV-2256-JAR-GEB, 2017 WL 980460 (D. Kan. Mar. 14, 2017)

Monday, March 27, 2017

OCR Continues to Open and Resolve Investigations into Institutions' Sexual Harassment and Sexual Assault Response

Whether and how the new presidential administration will alter the Department of Education's existing policies interpreting Title IX's application to sexual harassment and sexual assault remains to be seen.So far, however, there has been no discernible change in the agency's enforcement approach. Since the inauguration on January 20, the agency has continued to open new investigations -- a total of 13 according to the Chronicle of Higher Education's Title IX Tracker -- and has concluded several others that began under the prior administration by issuing findings and resolution  agreements that are similar to those we've seen in recent years.

Most recently, the Office for Civil Rights announced last week that it resolved Title IX violations by Whittenburg University in Ohio. The agency's investigation had been triggered by two complaints, filed in 2011 and 2013 respectively.  In addition to finding flaws with the university's written policies, it also determined that the university violated Title IX requirements in the way that it handled specific students' cases. For instance, it found the university officials told the family of one student who had reported being sexually assaulted that they would suspend the university's disciplinary process if the family pressed criminal charges. They also included information about the student's prior, unrelated sexual history in its investigative report that was distributed to the hearing panel.  In another case, the university's investigation was unreasonably delayed and the student who reported having been raped was not offered interim measures such as academic accommodations or counseling.  Failure to offer interim measures was also a deficiency in yet another case, one that OCR also criticized for having been insufficiently investigated.

Earlier, on March 9, the agency announced a resolution with Palo Alto Unified School District after finding violations of Title IX's requirement that educational institutions respond promptly and equitably to reports of sexual harassment and sexual violence. In one example, an assistant principal in the district received 25 reports from staff and faculty about sexually harassing behavior by the now-former principal, as well as a report that the principal had engaged in unwelcome physical contact with students. These reports accumulated for three years before the assistant principal finally addressed them with the Title IX coordinator. Though the district investigated and responded at that point, it treated the matter only as a personnel issue and did not investigate with Title IX compliance or obligations in mind. Another time, the school district failed to conduct its own investigation of  a student's report of having been sexually assaulted by a fellow student off-campus (though it did assist the student in filing a police report and offered other support). Nor did the district investigate the subsequent sexual harassment that the student reported she was subjected to for having reported the initial assault. 

Prior to that, on February 16, the University of Alaska agreed to revisit 23 cases of reported sexual harassment or assault that the university failed to adequately address, according to OCR findings. In some of these cases, the university failed entirely to conduct an investigation, such as a case in which faculty members learned that one of their students had been accused of sexually harassing middle school students at the site of his student teaching placement.  Even when the student was arrested for similar misconduct, the university continued its inaction, apparently because no university students had been victims. Other examples of the university's failure to investigate included a case in which a student reported a professor's sexual harassment, and where a student reported being assaulted in a university residential building by a non-student.  Besides failing to investigate, unreasonable delay was another frequent problem cited by OCR.  On the Fairbanks campus, the average investigation in 2013-14 lasted 122 days and the longest was 567 -- far longer than the 60-day timeframe that should normally occur.  At Anchorage, the longest was 403 and average of 97.  OCR's investigation also cited cases where the university failed to prevent retaliation, failed to provide the complainant with notice of the outcome, failed to provide complainants with interim measures, and other problems. 

All three resolution agreements imposed familiar requirements on the educational institution in question: assessing past reports of sexual harassment and sexual violence to determine whether the institution's response satisfied Title IX requirements; correcting problems where possible; revising policies and procedures to bring them into compliance; and improving training opportunities for relevant staff.  Alaska's agreement also included requirements to assess the campus climate, conduct informational sessions with students and otherwise improve the dissemination of information about the process for addressing sexual harassment and sexual assault, improve coordination with local enforcement, and other requirements. 

Sunday, March 26, 2017

Equal Protection Likely to Ensure Transgender Student's Bathroom Rights, Court Rules.

Last month a federal judge in Pennsylvania granted a preliminary injunction to a trio of three transgender students who sued to stop the Pine-Richland school district from enforcing a new policy that would have banned them from the bathrooms at the high school that correspond to their respective gender identities. The decision is notable because in its analysis of the plaintiffs' likely success on the merits (the judge's foremost question when deciding to issue a preliminary injunction) the court determined that the school district's policy violated their right to Equal Protection under the Constitution. The court determined that the plaintiffs' claim warranted intermediate scrutiny because transgender people fit the criteria by which courts have extended intermediate scrutiny to other groups -- such as having historically been vulnerable to discrimination, being identifiable by immutable characteristics, and constituting a minority lacking political power. This aspect of the court's reasoning is groundbreaking. Other courts have applied intermediate scrutiny in transgender discrimination cases, but only to the extent that such discrimination overlaps with sex discrimination. Here, the court predicts that discrimination based on one's transgender status itself warrants intermediate scrutiny.

If this reasoning takes hold, public schools and employers (as the Constitution only applied to government action) will have a much more difficult time enforcing bathroom bans. This is because the consequence of intermediate scrutiny is that the defendant, here the school district, must demonstrate persuasive (as opposed to merely rational) reasons for treating transgender students differently from others. The school district could not satisfy this requirement by speculating that permitting gender-consonant bathroom use by transgender students would lead to non-transgender students causing disruption in bathrooms designated for the opposite sex, which is what the school board claimed to fear. The fact that the three students in this case used the bathrooms that corresponded to their gender identities prior to the ban's enactment without causing any such problems negated the argument that such a justification was persuasive. Nor was the school board's privacy rationale persuasive, since the presence of bathroom stalls already ensured the privacy of all users. Along these lines, the court also rejected the school district's argument that a non-transgender bathroom user might decide to change clothes inside the bathroom but outside of a stall, risking an invasion of privacy should they encounter a transgender person, since the school could not produce any evidence that students used the bathroom for such a purpose. It thus concluded that when reaching the merits of the case the court would likely find in favor of the plaintiffs, thus warranting a preliminary injunction against the school district's policy while litigation is pending.

However, the court did not determine that the plaintiffs would likely succeed on their simultaneous Title IX claim.  Unlike the Equal Protection Clause, which is flexible in the discrimination that it covers, Title IX only prohibits discrimination because of sex. Though some courts have found that Title IX covers a transgender student's right to use the bathroom that matches their gender identity, these decisions deferred to the now-withdrawn interpretation of the previous administration's Department of Education. The court determined there was too much uncertainty in this matter to satisfy the requirement of "likely" success on the merits. This part of the decision did not affect the ruling's bottom line, however, since the court already determined that the plaintiffs were likely to succeed on Equal Protection grounds.

Thursday, March 09, 2017

Court Denies Baylor's Motion to Dismiss

A key preliminary ruling came this week in one of the several lawsuits against Baylor University that argue its mishandling of reported sexual assaults violates Title IX.  This lawsuit was filed by ten anonymous plaintiffs who allege having been sexual assaulted by fellow students (including, in one case, a member of the football team) between 2004 and 2016, while each was a student at the time. Each of the plaintiffs allege that they reported her sexual assault to various appropriate campus officials, but that the university responded inadequately by failing to investigate and discipline the alleged offender and failing to address the effects of assault through with academic, counseling, and other accommodations. In addition to arguing that the university's indifferent response to the their own report caused them psychological and economic damages that are subject to remedy under Title IX (so-called "post-reporting claims"), they also allege that the university's systematic failure to address sexual assault more generally increased their risks of being assaulted in the first place (so-called "heightened risk claims").

The judge first decided that the plaintiffs' post-reporting claims adequately alleged the required elements of claim for money damages under Title IX, mainly, notice to an appropriate person and the institution's deliberately indifferent response. Baylor argued that the plaintiffs' allegations about the institution's response cited violations of the Department of Education's Dear Colleague Letter and argued, correctly, that such violations do not automatically constitute deliberate indifference. However, the court decided that the plaintiffs had still adequately alleged deliberate indifference, pointing out that violations of the DCL should at least be a factor in the analysis of whether the responses were, overall, indifferent. The court also agreed with the plaintiffs that they were not required to allege that the university's indifferent respond lead to further sexual harassment or assault, only that it heightened the risk thereof.  However, four of the ten plaintiffs' claims for harm arising from the university's failure to respond to their reports are outside the two-year statute of limitations period that applies to this case. So only the post-reporting claims of the other six will move forward.

Next, the judge reasoned that the heightened risk claims were also adequately alleged. The plaintiffs alleged that the university's conduct in the face of widespread sexual assault constituted an intentionally discriminatory policy of exposing students to a heightened risk of sexual assault. Such conduct included systematically misinforming students of their rights, failing to investigate, discouraging reporting, and falsely reporting to the government that no sexual assaults occurred. The court reasoned that because they were alleging an intentional policy, the requirement to allege deliberate indifference did not apply.  The judge also determined that all ten of the heightened risk claims can proceed, even those based on alleged sexual assaults that took place more than two years ago, because only recently did the plaintiffs have access to all the information they needed to allege the kind of pattern of repeated misconduct that could amount to an intentionally discriminatory policy. In fact, as some legal experts have already pointed out, the judge has effectively set a 2018 deadline for other potential lawsuits by victims of other past sexual assaults. It will be interesting to see if this increases further still the number of lawsuits against Baylor. It also makes it less likely that Baylor will succeed in getting the other, similar lawsuits dismissed.

Monday, March 06, 2017

Supreme Court Cancels Hearing in Transgender Bathroom Case

Today the Supreme Court announced that it would not hear oral arguments in Gloucester County School Board v. G.G., the case asserting a transgender student's right under Title IX to use the bathroom that matches his gender identity, as it had been schedule to do later this month. Instead, the Court decided to vacate the Fourth Circuit Court of Appeals opinion that had been appealed to the Court and order a rehearing in the case. The Fourth Circuit court had earlier held that the plaintiff in the case, high school student Gavin Grimm, had the right to use the boys' bathroom at his high school.  However, the Fourth Circuit decision deferred to the Obama administration's interpretation of Title IX in reaching that result. Now that the current administration has withdrawn that guidance, the deference argument is moot, and it is up to the appellate court to decide for itself whether Title IX supports the right that Gavin Grimm claims. Whatever the Fourth Circuit does decides could eventually be appealed again to the Supreme Court, but for now, the battlefield of this case has shifted from D.C. to Richmond.

Besides postponing an eventual Supreme Court showdown over transgender rights, today's move by the Supreme Court cancels another one over the more general question of whether courts should defer to guidance documents issued by government agencies -- though this results may have been ordained (and some might suggest, orchestrated) by the administration's decision to withdraw the guidance in the first place. While many have criticized the former administration's tendency to issue clarifying guidance documents rather than create new rules, it may be that current administration plans to do rely on a similar strategy at least as often. In any case, the president benefits from the fact that doctrine of judicial deference to such interpretations remains in tact.

Friday, March 03, 2017

Baylor & culture

As investigators from the Office of Civil Rights prepare for a trip to Waco, Texas to investigate Baylor University, employees of the school continue to make headlines for making very ill-advised comments. 

Kim Mulkey, the women's basketball coach, verbalized the frustration many at Baylor have over the way their school is being portrayed nationally (i.e., as a bad, unsafe place for women; a culture that protects athletics and athletes at all costs, including the safety of the student body generally). At least that is the excuse people have been providing for her since her on-court, post-game comments last weekend during which she said: “If somebody is around you and they ever say, ‘I will never send my daughter to Baylor,’ you should knock them right in the face.” In the actual post-game conference she said about the scandal,  " [I am] tired of hearing about it" and to that people should "move on, find another story to write."

Let's problematically put aside for a moment the violence of her statement and reflect on the message.

I don't know if Mulkey has lost recruits because of the scandal; women who said they didn't feel safe attending Baylor. But it's possible that Mulkey is simply sticking up for her school.

Regardless, she is sending the message that not only is everything alright at Baylor--everything is great--because Baylor is "the damn best school in America!" This is the ultra-nationalism of school pride. It is ignoring the problems Baylor so clearly has and refuses to acknowledge. In that moment (and in subsequent moments I will turn to next) she is contributing to the culture she--and many, many others--says does not exist at Baylor.

In doing so she 1) encourages a violent response (see again ultra-nationalism) and 2) erases the experiences of the women who were raped at Baylor.

Sunday (a day after mistakes were made): Apologies were issued. Mulkey does an interview with ESPNW writer Mechelle Voepel in which she says the comment about punching people was a "poor choice of words." What she really meant, she explains, was that people should be firm with those who are speaking badly of Baylor. She has interpreted the rumors that parents would not send their daughters to Baylor as judgements on the women currently attending BU. The sentiments behind those alleged rumors are more aimed at the safety of future college students. There is no implication that the women who choose be there now are misguided.

She said she takes seriously the situations of the women who were assaulted and that victim should always be helped. She said she would never support anybody who denied help to victims. But she added that she does not "think that everybody at Baylor should be put under an umbrella as all being a part of the things that happened. I can't fathom anybody not helping someone who is a victim of that type of crime. I don't condone it. My words [Saturday] did not express exactly what I was trying to say."

It remains unclear what exactly she was saying. But I will offer an interpretation of the initial comments and apology: Baylor is awesome. Don't let anyone tell you otherwise. But don't hit them as you tell them that. My daughter went here and she was fine. Everything is fine. Yea, maybe some bad things happened to a few women, but not everyone here is responsible for that so please stop asking me questions about it and let me coach basketball.

Mulkey added insult to injury in the wake of the apology. In post-game comments just a day later she refused to answer questions about her comments. She just kept referring people to the Voepel article.

Mulkey is clearly a part of the Baylor culture that has created this scandal. She may not have directly refused help to a victim, but her denial of the realities on the campus she is trying to bring young women to is part of the culture that allowed those actions to occur. There will be no change at Baylor until people there acknowledge the problems that existed, the problems that persist, and that major changes need to be implemented--including training your employees on what to say about the scandal.