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.