Monday, January 25, 2016

Settlement in FSU case

Breaking news: FSU will pay Erica Kinsman just under $1million to settle the lawsuit she brought against her former institution in the wake of their mishandling of her rape allegations against former quarterback Jameis Winston.

FSU had dug its heels in deep in the case, making repeated remarks to the media about how they had done everything according to the book, despite glaring evidence to the contrary. So I am somewhat surprised by the settlement--and somewhat not so surprised. A trial would have drawn more attention and potentially turned public opinion against the university which still remains very popular in the eyes of fans and alumni. I believe the evidence that would have been brought out at trial would have made them look horrible. Their initial lack of response to Kinsman and the more-than-a-year-late conduct board hearing which was handled so poorly could not have been overlooked.

In the settlement FSU admits no wrongdoing, though most of us know that $950,000 is a pretty hefty sum for an innocent entity. But this way those who vilified Kinsman, (the harassment she experienced was one of the reasons she withdrew from her dream school) can continue to say that nothing was ever proven and that the university simply had to pay her off or incur even more costs to defend themselves. This narrative is somewhat frustrating. Though there are further legal actions pending against Winston.

FSU is still maintaining that they would have won in a trial. This statement from President John Thrasher is particularly infuriating:
Although we regret we will never be able to tell our full story in court, it is apparent that a trial many months from now would have left FSU fighting over the past rather than looking toward its very bright future. We have decided to instead move forward even though we have full faith that the ultimate outcome of a trial would have been consistent with the previous law enforcement investigations and retired Supreme Court Justice Major Harding’s findings in the student conduct hearing.

I am not going to go back to rehash the student conduct hearing. I will just remind readers that it was somewhat of a comedy of errors--but not funny in the least. Whatever Harding's credentials as a judge, his expertise did not extend to overseeing and judging a student conduct hearing.

FSU was correct about the costs of litigation. Only $250,000 of the settlement is going to Kinsman. The rest covers her legal costs.
CORRECTION: New sources have emerged since this story broke, and I posted that this was breakdown of the settlement. The statement was from FSU. But the division of the settlement is to be determined between Kinsman and her legal team, who say that the $700,000 is what FSU determined legal costs to be but is not reality.

What else has this cost FSU? As part of the settlement,  FSU has committed to five years of of sexual assault awareness, prevention and training programs. Curious. Not sure what will happen after five years. These things are basically required anyway. There will be annual reports discussing these programs in an effort in "increase transparency." The latter has been an issue. One astounding fact that would have been brought up at trial is the statement from the former director of the Victim Advocate Office claiming that of the 113 reports of sexual battery to their office in 2014, the university reported only 9 to the federal government (Clery Act violation). This may be an issue, though, when OCR does its investigation. The university still has to contend with that.

Friday, January 22, 2016

The latest from Iowa

The Iowa Civil Rights Commission has been investigating the 2014 firing of field hockey coach Tracy Griesbaum. The results, issued in early December in a brief report by the commission, clear the path for Griesbaum to file discrimination lawsuit against the university. It is expected she will do so in the next few weeks. The report states that there was a "reasonable possibility" that the coach's dismissal was a result of gender discrimination and that the university has not provided evidence that her dismissal was the result of a combative nature (one of the university's claims for her termination).

In related news, the complaint filed by four current and former field hockey players in the wake of Griesbaum's firing will bring OCR to Iowa City some time this spring. Though the complaint deals specifically with the treatment of female coaches, OCR will assess the entire program and could issue a report on, in addition to coaching, things such as access to facilities and medical care, availability of practice times and equipment, quality of travel and competition. In other words, this visit is not just about whether there is discrimination against female coaches, it will be about whether there is equal treatment in the department. What we have seen is that when there is disorder in one part of the house, there are usually messes elsewhere. The university may be working hard on its defense in the presumed Griesbaum lawsuit, but the athletics department should also be doing an assessment of the overall state of the department and making proactive (in terms of an OCR visit; obviously things should already be in order) moves to demonstrate to OCR that they are committed to achieving equality in the department.

Thursday, January 21, 2016

OCR Promises More Transparency for Religious Exemptions

The Department of Education's Office for Civil Rights has promised a U.S. Senator that it will improve the public's access to information about institutions that have applied for and received exemptions from Title IX on religious grounds.  The statute permits religious institutions to seek exemptions from compliance on matters that conflict with religious doctrine. After receiving a letter from Senator Ron Wyden (D-Or) and others expressing concern about the exemption's affect on LGBT students' rights, OCR replied, in relevant part:

I think OCR should go even farther than just making the list of exemptions available on its own website; I think it should require exempt institutions to publish the fact of their exemption on their own publications and marketing materials.  This would be consistent with the agency's current approach to Title IX disclosure more generally, as it  requires every school subject to Title IX to include a nondiscrimination notice "on the recipient’s website, at various locations on campus, and in electronic and printed publications for general distribution" as well as include it "in any bulletins, announcements, publications, catalogs, application forms, or recruitment materials."  As a condition for granting the exemption, OCR should require religious institutions to including information about the exemption as part of these notices.

For additional background, analysis and critique of Title IX's religious exemption, see Amanda Bryk, Title IX Giveth and Title IX Taketh Away: How the Religious Exemption Eviscerates Protection Afforded Transgender Students Under Title IX, 37 Cardozo L. Rev. 751 (2015).

Saturday, January 09, 2016

OCR Criticized for Process Used to Create Dear Colleague Letter

In a "sharply worded missive," two Republican Senators criticized the Department of Education last week for process it used to develop the guidance contained in the 2011 Dear Colleague Letter that clarifies universities' obligations under Title IX to address campus sexual assault.

As I told the reporter from Inside Higher Ed, I believe that it was legal for the Department to consider it guidance exempt from the notice-and-comment procedures that agencies have to follow when they promulgate binding regulations.  The Administrative Procedure Act, which sets those requirements, exempts interpretations of existing regulations from that process, and the Dear Colleague Letter qualifies as an interpretation of Title IX's regulatory requirement that institutions provide a "prompt and equitable" response to reports of sexual violence.
 “The letter takes those words -- ‘prompt and equitable response’ -- and gives them a specific meaning,” [I] said. “The department already had the enforcement authority to bring enforcement action against an institution for violating Title IX, because that regulation did go through notice and comment in the 1970s. The department could have chosen to exercise that option for the guidance, as well, but that takes a lot of time. All the letter does is say to colleges, ‘You’re not getting the message, so we’re going to tell you in advance what the compliance standard is, so if you want to avoid an enforcement action, this is how you do it.’ It's important to get that message out there as quickly as possible.” 
But the advantage of expediency comes with a tradeoff, which is that guidance documents issued without notice-and-comment procedures can more easily be revoked by a subsequent administration. For example, a controversial 2005 guidance document that permitted institutions to use interest surveys to with Title IX's requirement to provide equitable opportunities in athletics was revoked in 2010 by the current administration.  Because the 2005 guidance did not use notice-and-comment procedures, neither did the 2010 revocation.  As I told IHE, "That's the trade-off. Easy come, easy go.”

Friday, January 08, 2016

Assault at Tennessee High School Basketball Tourney

The season is over for a Tennessee high school basketball team that has been at the center of significant media attention after three upperclassmen sent a younger student to the hospital with injuries to his colon and bladder that required surgery.

The three perpetrators have been arrested and charged (as juveniles) with aggravated rape  and assault and kicked off the Ooltewah High School basketball team. The team played four games since returning from the tournament. Then, on Wednesday, the district superintendent, Rick Smith, announced that the remainder of the season would be cancelled. This is what he said:
"This decision is not a reflection upon the coaching staff. Indeed, law enforcement officials have to date found no evidence any adult acted improperly. Likewise, this decision is not meant to punish the boys on the team who are innocent of any wrongdoing and simply want to play high school sports."

So why cancel the season if everything is just fine?  Smith said something about the integrity of the investigation. But it looks like a PR move as more details are uncovered.

Many of us have read the horrid details of the injuries, caused by a pool cue, that happened in December during a high school basketball tournament. The Ooltewah team was staying in cabins near the tournament site. This is where the assault occurred. Though only one person ended up in the hospital, other first-year players were also assaulted in what was initially called a hazing incident.

First, any news source that continues to refer to this incident as hazing is doing harm and minimizing the severity not just of this incident but of the culture that continues to perpetuate the idea that male and team bonding via hazing is harmless ritual. This was assault. It was always assault. It did not start out as hazing and turn into rape. It was a planned sexual assault.

An attorney for the school district has said that part of the school's investigation will include a look at the anti-hazing policy and whether it is being effectively communicated to students. The problem is that hazing is so much more complicated than most of those involved know.

The reason the term hazing exists is because it applies to a specific situation--one in which people act against others with the intention of providing an initiation or bonding ritual. Hazing includes actions that are meant to create an in-group and out-group. One suffers through the ritual/tradition/assault to prove loyalty and thus gain entry. To prove the group itself is special, the "tradition" continues, though the entry requirements often have little to do with the group's goals or function.

The use of the term hazing does not mean that the actions are somehow more acceptable because they do not occur between strangers or seemingly have no higher purpose. Being force fed alcohol is not ok in any situation. Being sexually assaulted is never ok. The use of the term hazing in the popular discourse has had the effect of desensitizing us to the violence that all hazing entails. An incident like this makes people take notice, but many are quick to talk about how unique this incident is because of its extreme violence, thus making room for some acceptable versions of hazing/assault.

One, this is not so unique. A quick look at the literature on hazing will reveal many stories of so-called extreme hazing. Two, we have no idea how often rape, assault and other forms of violence that do not result in hospital visits occur. The culture of silence is strong. Once an individual has endured the assault and gained entry to the group, he is less likely to threaten that position by telling others what happened.

Hazing has been happening on the Ooltewah boys' basketball team for a while I would guess. The perpetrators did not just invent this. They were probably hazed themselves--which is not an excuse. This bring me back to anti-hazing education. Yes, it is important. It is important to send the message that team bonding and acceptance should not be achieved through physical assault. I wonder though if this will be the message. Because this situation will require more than a few (or more likely one based on what I know about training sessions implemented in the wake of a scandal) sessions in which administrators say "don't haze." Because most people--even teenage boys--know that sexually assaulting someone with a pool stick is not acceptable behavior. This was not bonding. This was about power, which is true of all hazing.

Saying "do not haze" will not stop hazing. Whatever culture exists that allowed this to continue needs to be addressed. Something is happening at that school. I am not sure what an investigation will uncover, but I am sure lawsuits and maybe even a Title IX complaint are forthcoming. I have some questions.

When the hazing tradition of being "beaten in" to the team was reported to the coach, an allegation made by the parent of another victim, was it really enough for him to say "stop bullying"? Who is training coaches and administrators about these issues? How were these boys not supervised in the basement of a cabin on a road trip--especially after the coaching staff knew "bullying" was occurring?

Also, I am wondering who thought it was acceptable to send the boy back after his initial hospital visit (he returned later in the night to receive surgery when his condition worsened), to the place where he had been raped. And why did no one there do anything about it at that moment? The discussion has been about the physical injuries this boy suffered, but the psychological damage caused by hazing is just as significant. Sending him back to the cabin where he had been assaulted is unthinkable.

Wednesday, January 06, 2016

Tennessee Athletics Staff Settle Retaliation Suit for $750,000 + Fees

Three former members of the University of Tennessee Athletics Department staff have settled a lawsuit, ongoing since 2012, that challenged pay disparities between their positions that worked with female athletes and those doing the equivalent job for male athletes.  They had also alleged that athletic department officials retaliated against them when they complained about pay discrimination.

Under the terms of the settlement, the university will pay each of the three plaintiffs -- former associate director of sports medicine, Jenny Moshak, and two former strength coaches Heather Mason and Collin Schlosser -- a combined total of $750,000, and will also cover the plaintiffs' attorneys fees, which are estimated to add to another quarter-million to price tag of the settlement.

This case is a good reminder of the various ways that sex discrimination can manifest in athletics. On the one hand, paying the trainers and coaches who work with female athletes less than those who work with male athletes reflects a devaluation of women's athletics, which affects not just women, but men like Schlosser who work in women's athletics as well. On the other hand, the plaintiffs' had alleged that the existence of a "testosterone wall" that kept women from being considered for the more lucrative staff positions working with male athletes.  So women were additionally disadvantaged in that way as well.

Notably, this lawsuit was not the only one that alleged sex discrimination in Tennessee athletics back in 2012.  The other case, filed by the former Lady Vols media director who alleged she was squeezed out because of her sex when the University merged its men's and women's athletics department, had already settled in 2014 for $320,000.

Monday, January 04, 2016

Everyone's talking about waivers

Since Erin wrote about Christian-identified colleges asking for Title IX exemptions, the topic has been getting a great deal of attention in the media. As a reminder, these waivers do not permit complete exemption from Title IX and every school can craft its request however it pleases, but waivers can (and have) be(en) used to: expel transgender students and unmarried women who get pregnant, deny transgender persons access to single gender spaces such as bathrooms, locker rooms, and housing, deny married housing to same-sex couples (students, faculty, and staff)

  • The issue of federally sanctioned discrimination against LGBT students in America's institutions of higher learning has US lawmakers taking notice. A group of senators, including Bernie Sanders, Al Franken, Tammy Baldwin, and Barbara Boxer, have asked Secretary of Education for "greater transparency" in the waiver process. They want, at the very least, a public list of the schools that have asked for and received waivers stressing the need for an informed choice by students and parents.
  • The Human Rights Campaign (HRC) has seconded that motion (or maybe firsted?--not sure who made their announcement first). The group issued a report asking for a list and that the Department of Education keep (publicly available) statistics about the number of requests and waivers granted. HRC's report included some of these statistics, which document the rapid rise in requests from one in 2012 to over 40 in 2015. About 2 dozen requests are still being considered by the Department of Education, but it has yet to deny a school a waiver.
  • As Erin noted in her original post, there is a list of these schools. But it is being kept and published by an LGBT publication, The Column, out of Minnesota. The Column got the list via FOIA requests and what they have done with the information is very impressive because it is more than just a list of the schools. It has an interactive map, similar to the one HuffPo has been keeping on schools under investigation for Title IX violations regarding the handling of sexual assault. It may be the best source for now if one is interested in knowing which schools have made and/or been granted waivers and what they are requesting.
  • Response by conservative Christian groups to the request for lists has used phrases like blacklisting, public shaming, religious freedom, and stifling diversity. Some groups, like the Southern Baptist Convention and the Christian Legal Society, have been providing training and advice to schools seeking waivers, which is why many of the ones filed in the past year are nearly identical. All of these are available at the link to The Column's piece.

Sunday, January 03, 2016

Baylor settles with sexual assault victim

Baylor University has made an undisclosed settlement with a student who was raped by a former football player. Sadly, this is no longer an unusual situation. We have not been writing about all the lawsuits and complaints filed, in part because we do not hear about all of them. This Baylor case just came to my attention with the news of the settlement. I write about it for two main reasons. One, it involves a transfer athlete who was dismissed from his previous institution most likely for reasons related to violence against women. Second, the settlement comes after a successful criminal conviction of the athlete for sexual assault.

The latter: football player (he never played a game, actually, but was on the roster), Sam Ukwuachu, was found guilty of sexual assault in August. Sexual assault convictions are difficult to get. None of the articles I have seen detail what evidence was put forth that was so compelling, but apparently it was not good enough for Baylor which, after its own investigation, chose not to discipline Ukwuachu. The school's investigation consisted of 4 interviews: victim, accused, and a friend of each. Though the victim went to the hospital after the attack, which occurred in October of 2013, had a rape kit done and spoke to the police, none of this evidence was considered by the investigative team. The investigation was so controversial that the defense was not allowed to reference it during trial. 

Though criminal charges were still pending, a member of the Baylor coaching staff said they expected Ukwuachu to play in 2015 and patted themselves on the back for handling everything so well.

Head coach Art Briles said the same month his player was convicted: “We’ve sat back and waited for it all to take shape and see what the outcome is. So, I like the way we’ve handled it as a university, an athletic department and a football program.”

Baylor will still undergo an OCR investigation for its handling of sexual assault complaints. 
In short, the school's investigation, which requires a lower burden of proof, found Ukwuachu not responsible. A criminal court, where so may rape cases do not even make it because prosecutors do not feel they can convince a jury beyond a reasonable doubt given the evidence and testimony, found him guilty. 

Even in reporting the conviction and now the settlement, the media focus remains on what Baylor knew about Ukwuachu's past. Originally recruited and attending Boise State, Ukwuachu was dismissed from that team and left Boise in May 2013--to attend Baylor. Briles says the former BSU coach Chris Petersen did not mention the allegations of domestic violence against the player which involved a romantic partner. Petersen claims that he did indeed discuss these things. Boise State issued an official statement saying that Ukwuachu's dismissal had nothing to do with violence against any women. Adding to the allegations, innuendos, and incomplete stories is the fact that former Florida head coach would "not touch" the player because of the rumors about his behavior. Interestingly, the SEC, which Florida is a part, will not admit student-athlete transfers with records of violence--though this rule was not in place at the time.

The question that remains for me is who will investigate these he-said, he-saids and who in the administration, including the athletic department, knew what--and when. Will OCR look into it when they go to campus for their investigation? Does the NCAA care anything at all about this pattern of passing players with records from one institution to another? The policy around transfer athletes should be part of a school's sexual assault policies and procedures. Keeping athletics as tuns on their own bottoms has proven to be harmful, and it is time to stop viewing them, their leaders, and their student-athletes as distant and/or distinct entities.

Wednesday, December 16, 2015

Dear Colleague Letter Addresses Single-Sex "Voluntary Youth Service Organizations"

Yesterday the Department of Education's Office for Civil Rights released a Dear Colleague Letter aimed at clarifying the relationship that Title IX-covered educational institutions may have with outside organizations that discriminate in their membership on the basis of sex.  Title IX regulations prohibit schools from offering "substantial assistance" to most organizations that engage in the kinds of discrimination that schools themselves would be prohibited from engaging in under Title IX.  Substantial assistance means things like allowing the organization to use school facilities that are not otherwise open to the public, or providing financial support, staff, or other assistance.

However, as the letter explains, Title IX expressly exempts "voluntary youth service organizations" that have "traditionally limited membership to "persons of one sex and persons of less than nineteen years of age." 20 U.S.C. 1681(a)(6). The statute names the YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls as examples of these exempt organizations. I think additional examples that could fit this criteria include Girls Inc., Boys and Girls Clubs, as well as other organizations that are targeting opportunities to boys or girls of a particular race and ethnicity, such as 100 Black Men of America.

This means that schools may offer "substantial assistance" to these organizations without jeopardizing Title IX compliance and, as a result, federal funding.  However, the letter clarifies, in addition to meeting the statutory criteria of being aimed at youth and having a tradition of single sex membership, the organization must provide students with actual opportunities to do public service. Moreover, the letter clarifies that the only discrimination tolerated by such organizations is discrimination in membership. A school cannot provide assistance to organizations that commit other violations of Title IX, such as sexual or gender-based harassment. Moreover, a school must ensure comparable opportunities for boys and girls.

Tuesday, December 15, 2015

Title IX Covers Sexual Orientation Discrimination, Court in Pepperdine Case Rules

Two female athletes are suing Pepperdine University over discrimination they experienced as athletes on the basketball team. They allege that the head coach and other athletic department employees singled them out for unfair treatment because they suspected that the plaintiffs were lesbians and in a relationship with each other, and when they complained about mistreatment, they were forced off the team and lost their scholarships. The athletes sued the university under Title IX and other state laws. And while their case was initially dismissed, the athletes received permission to amend their complaint, and when they did, Pepperdine again moved to dismiss. This time, however, the court denied the university's motion, which means that the plaintiffs can continue to litigate the case and begin preparing for trial.

The court's decision is significant for how it treated Pepperdine's argument that the plaintiffs cannot sustain a claim under Title IX because the statute does not cover discrimination on the basis of sexual orientation. Specifically, the court refused to consider sexual orientation discrimination a separate category of discrimination, but rather, viewed it as a subset of sex discrimination. The court reached this conclusion in two separate ways --  first, by viewing sexual orientation discrimination as a type of gender stereotype discrimination, and second by considering it a matter of  "straightforward" sex discrimination.     

The gender stereotype theory of sex discrimination comes from a 1989 Supreme Court decision, Price Waterhouse v. Hopkins, which applied Title VII's ban on a sex discrimination to a case involving an employer's discrimination against female employee for not behaving sufficiently feminine in the office. Since then, courts have accepted that sex discrimination statutes like Title VII and Title IX protect gays and lesbians (and others) from discrimination when the discrimination against them is not directed at their sexual orientation per se, but at how they dress or publicly express themselves (a woman who dresses too masculine, for example). But courts have rarely extended this idea to its logical end and concluded that that all sexual orientation discrimination is sex discrimination because heterosexuality is a gender stereotype. Notably, however, the decision in this case does exactly that. The court determined that the plaintiffs stated a cause of action under Title IX because they alleged that the coaches and others targeted them for mistreatment because of their perception that the plaintiffs' dating and relationship choices did not conform to feminine stereotypes. ("If the women’s basketball staff in this case had a negative view of lesbians based on lesbians’ perceived failure to conform to the staff’s views of acceptable female behavior, actions taken on the basis of these negative biases would constitute gender stereotype discrimination."). This part of the decision is groundbreaking in its recognition that same-sex sexual orientation is itself a form a gender nonconformity that is protected under Title IX, a conclusion that renders Title IX applicable to all claims of sexual orientation discrimination by gay and lesbian plaintiffs.  

The court also provided a second reason why the plaintiffs' case is actionable under Title IX, separate from the gender nonconformity theory. According to the court, "If Plaintiffs had been males dating females, instead of females dating females, they would not have been subjected to the alleged different treatment. Plaintiffs have stated a straightforward claim of sex discrimination."  This second rationale supports the same groundbreaking conclusion that all sexual orientation discrimination is a form of sex discrimination under Title IX.  

Last July, the Equal Employment Opportunity Commission, the agency that enforces Title VII, made a similar ruling about the relationship between sexual orientation discrimination and sex discrimination. The court in this case cited that decision favorably. These two decisions together are perhaps a sign of early momentum towards an interpretation of sex discrimination laws that would make the need for separate laws prohibiting discrimination based on sexual orientation unnecessary.

Decision: Videckis v. Pepperdine Univ., 2015 WL 8769974 (C.D. Cal. Dec. 14, 2015). 

Monday, December 14, 2015

Court Refuses to Dismiss One Sexual Assault Victim's Title IX Claim Against Berkeley, Tentatively Dismisses Two Others

The University of California Regents moved to dismiss claims filed by three students who alleged that UC Berkeley's delayed and insufficient response to their reports of sexual assault violated Title IX.  The court denied the motion with respect to one student's claims, allowing her case to proceed to the next stage of litigation. The motion was granted with respect to the other two students, but they were granted permission to amend their complaints to attempt to overcome the insufficient pleading that lead to the dismissal.

In all three matters, the court decided that the university could only be liable, if at all, for harm to the plaintiff that occurred after the reported incidents of sexual assault, not for the sexual assault itself. This is because institutional liability under Title IX requires that university officials have actual notice in advance of the risk of sexual violence, and in none of the three cases did the plaintiffs allege that the university knew beforehand that the assailant in question posed a threat. Yet, the university could still potentially be liable for harm suffered by the plaintiff caused by the university's failure to adequately respond to their reports of sexual assault. For this to occur, the plaintiff must first allege that they university's response amounted to deliberate indifference. Also, though the plaintiff need not allege that such indifference caused them to be re-victimized, they do need to allege that the university's response impaired their education opportunities in some way, such as by leaving them vulnerable to further harassment or assault.

The first of the three plaintiffs reported to university officials that she was sexually assaulted by a fellow student on a club trip. She alleges in her complaint that the university did not contact her about her complaint for over 8 months and did not discipline the student with anything other than probation despite having found him responsible. However, she did not allege that the university's failure to discipline the student rendered her vulnerability to further harassment. For this reason, the court dismissed her claim, but, as noted above, will allow her to amend the complaint. The court helpfully identified  allegations that would be sufficient, including claims that she was made uncomfortable by subsequent encounters with the assailant, or that she had to alter her behavior out of fear of running into him.

The court also determined that the second plaintiff's complaint failed, but for a different reason. This plaintiff claimed that the university was deliberately indifferent in its response to learning of her report that she was raped by another student but did not include details to establish the purportedly insufficient length of time taken by the university to respond to her complaint. She too may amend her complaint to include these details.

The third plaintiff alleged that she was sexually assaulted several times while working as an assistant to a graduate student conducting research in Alaska. The perpetrator was someone affiliated with the research center that hosts a university-affiliated academic program. Moreover, he is someone who regularly guest lectures on campus. The plaintiff alleged that she reported the incidents to the university officials who failed to undertake any kind of investigation or other response. As a result, she was forced to drop those classes in which she might encounter him as a guest lecturer. The court deemed these allegations sufficient to state claim of Title IX liability, so the university's motion to dismiss was denied. The case will now proceed to the discovery phase of litigation, in which the plaintiff will have the opportunity to gather evidence needed to prove the allegations contained in her complaint.

Karasek v. Regents of the University of California, 2015 WL 8527338 (N.D. Cal. Dec. 11, 2015).

Monday, December 07, 2015

Round-up: Aftermath of the Hunting Ground airing

Amid criticisms of the film and the television station, with threats of lawsuits, CNN aired The Hunting Ground the weekend before American Thanksgiving. Here is what happened afterwards:

A report came out from the American Association of University Women that 91% of colleges and universities reported no sexual assaults in 2014. I find that number both incredulous and sadly not at all surprising. Earlier this year another study's results were released showing that one out of four college women surveyed reported being assaulted. So even with problematic studies, even with underreporting, there is no way that nine out of ten schools received no reports of sexual assault in 2014. There is missing data, as the Washington Post reports, because some schools missed the October 1 deadline to report their numbers about crimes on campus and there might be a delay in data entry at the Department of Education. Regardless, reports of zero sexual assaults should not fool anyone. It is more likely an indication that a school does not have the correct policies, procedures and training in place. As the article notes:
"a school that reports no or few sexual assaults isn’t necessarily a safe haven for students. In fact, a higher number of reported assaults can mean the assault investigation system is operating effectively."

 This seems to be playing out at Brown University, which recently revised its sexual assault policies. The number of reported assaults has increased. According to administrators, the new process--spurred by a complaint about the handling of a student's accusations and the punishment levied against the assailant and an OCR investigation--has made it easier for victims to report and move through the hearing process.

Down in Tallahassee, Florida Florida State administrators, lead by President John Thrasher, continue to defend themselves against allegations of mishandling sexual assault complaints and are working very hard to keep their secrets secret--with limited success. Days after Thrasher chastised The Hunting Ground, the university was forced to release transcripts (by a judge and requested by NYT) of depositions in Erica Kinsman's lawsuit. The former head of the victim advocacy program provided some numbers. The "good" news is that FSU did--unlike 90% of American colleges and universities--report sexual assault in 2014; nine incidents, according to Melissa Ashton who was in charge of the program at the time. But she also said that 113 incidents were reported to her office. Ashton was in her position for nine years and, according to her testimony, there were 40 football players reported for sexual assault or intimate partner violence. Only one of those 40 were found responsible she said noting that many women would not pursue cases against football players because they were afraid of the repercussions. Part of FSU's response was a basic shrugging of the shoulders, noting that there was nothing the university could do if the victim would not report outside of the victim advocacy program. There was nothing about trying to change the culture of fear and intimidation.  

The other deposition some were interested in was that of head football coach Jimbo Fisher. He reported that he was not aware of FSU's sexual assault policies and thought that Title IX was about equality in men's and women's sports. The line of questioning was trying to determine what Fisher, and his superiors, knew about the accusations against Winston, when, and what they did about them. Ashton noted that whether there was even a staff member at FSU who dealt with Title IX issues during that time is in doubt. This does not excuse FSU or Fisher and his superiors from reporting the allegations, in part because not having a Title IX coordinator is a Title IX violation.

This case is not scheduled for trial until September 2016. That provided Thrasher with an abundance of time to keep praising and defending FSU.

PS: I looked for news about Winston was planning in the wake of CNN's airing of the documentary. No word on the lawsuit he was threatening.

Saturday, December 05, 2015

Illinois School District Settles With OCR in Locker Room Case

The school district in Palatine, Illinois has agreed to a settlement with the Department of Education that will resolve the agency's findings made last month that the high school's exclusion of a transgender student from girls' locker room violates Title IX. Specifically, the school district has agreed to allow the student in question, who identifies as female, to change in the the girls' locker with the other girls, on the condition that she use private changing stations located within the locker room. The district must also install privacy curtains and provide additional accommodations for any student who desire enhanced privacy.

The Department of Education notes that this case is the first time it has found discrimination against a transgender student to violate Title IX. Notably, however, it is not requiring the school district to adopt a general policy of inclusion but merely to provide access to this particular student who had already agreed to (and in fact, requested) the opportunity to use a private changing station within the girls locker room. It appears to me that the agency was giving up the opportunity to compel a broader remedy for the sake of compromise; yet despite the settlement's narrow focus (and that fact that no settlement would have jeopardized the school district's federal funding) the school district's decision to endorse the agreement was reportedly not an easy one. The fact that a three-hour meeting was required to endorse the settlement unfortunately demonstrates considerable resistance to transgender inclusion. It was heartening, however, to read that many students supported the deal.

Duluth Coaches and Students File Title IX Complaint

A group of four former student athletes, one current student athlete, and three former coaches have filed a complaint with the Department of Education's Office for Civil Rights challenging widespread sex discrimination within the athletic department at the University of Minnesota-Duluth. The former coaches -- Shannon Miller, Jen Banford, and Annette Wiles -- are also plaintiffs in a lawsuit against the university challenging sex- and sexual orientation- discrimination that resulted in the termination or forced resignation of their jobs.  But the OCR complaint alleges even more widespread sex discrimination that affects students and coaches alike.

Allegations in the complaint include the following:
  • women's ice hockey team has a smaller operating budget (by over $270K) than its male counterpart
  • women's softball team was forced to have tryouts in order to pad the number of female athletes reported for gender equity purposes, then the department made the coach cut those extra players for budgetary reasons 
  • some female athletes were fraudulently reported as participants in multiple sports
  • men's basketball team is allowed to carry redshirt players, while the women's team is not
  • the department has terminated female coaches, depriving female athletes the opportunity to receive coaching of high quality
  • the department provides men's teams coach with resources like vehicles, a restaurant expense account, and support staff, that are not provided to the women's coaches on equal terms. 
  • the men's basketball team has a locker room five times larger and of superior quality than the locker room for women's team
  • the men's hockey team is provided with resources like snacks, meals, travel funds to tournaments that were not provided in equal measure to the women's team. 
  • the women's basketball team had fewer games and travel opportunities than the men's team; the women's team had to fundraise for travel and the men were not
  • men's teams had bigger budgets for recruiting, more equipment and uniforms, and medical equipment denied to women's teams
  • female athletes have fewer opportunities for scholarships, such as funding to enroll in special May term, J-term, and summer semesters that male athletes receive
  • the department does less promotion for female teams than its male counterparts, among other examples, it tweeted about men's hockey 309 times compared to 69 tweets about women's hockey
OCR will now consider whether to open an investigation (it likely will).  If the allegations are validated, it is very hard to imagine how they could not constitute violations of Title IX. While it is not necessarily a violation to have a disparity in treatment between men's and women's teams in the same sport, it is a violation when the athletic department's pattern is to select the women's team for inferior treatment all or most of the time.

Thursday, December 03, 2015

Article Identifies Religious Institutions Exempt from Title IX

Title IX permits religious institutions to claim an exemption for matters where Title IX's compliance conflicts with religious doctrine. In the wake of Department of Education's increasing tendency to apply Title IX to discrimination against LGBT individuals, religious institutions have increasing utilized the provision to opt out of the law's nondiscrimination mandate.  While a couple of examples had been made public, it's been difficult to find a complete list of which institutions are opting out of Title IX on religious grounds. 

Until now. Earlier this week, a news service called The Column published a complete list of religious institutions claiming exemption under Title IX, 27 of which have been approved by the Department o Education thus far. The article also exposes what appears to be a concerted effort by religious schools to utilize the exemption for the purpose of exclude LGBT students. For example, Baptist church leaders in Texas passed a resolution denouncing transgender individuals so that affiliated education institutions would have evidence of a doctrinal conflict to use in their Title IX exemption applications. The Christian Legal Society has provided training and model language for religious institutions to use in support of their applications.

Transgender individuals seem to be the primary target for exempt institutions, who cite in their applications (which are helpfully appended to the article) religious beliefs about the immutability of sex. They have been granted exemptions from regulations governing admissions (although, private undergraduate institutions already do not have to comply with Title IX's application to admissions) and regulations that could be interpreted to allow transgender individuals access to sex-segregated facilities and athletics programs in accordance with their gender identities. In addition to transgender students, another targeted group appears to be unmarried and pregnant students, as many religious institutions have received exemption from the requirement under Title IX to not discriminate on the basis of pregnancy, such as by expelling pregnant students or denying them certain accommodations. 

As the article notes, the exemption operates to allow $130 million annually in federal funding to support institutions that discriminate in ways that are otherwise prohibited under law, an idea that many find objectionable.  It is also troubling that information about the exemption is difficult to find. Students or employees who are subject to discrimination at these institutions may be surprised to find out that they are not legally protected, and might have made different choices about where to enroll or accept a job if they had known.  For this reason, I am going to type out the entire list of institutions who have received or are claiming such exemptions, to increase the likelihood that this information can be discovered by those searching for information about the school. The list is provided after the jump.