Tuesday, October 21, 2014

Department of Education Releases New Clery Act Regulations

Yesterday the Department of Education released new regulations implementing the revisions to the Clery Act imposed by Congress when it reauthorized the Violence Against Women Act last year. The Clery Act requires colleges and universities to report statistics on crime that takes place on campus and in related areas. Specifically, VAWA required that Clery’s existing requirement to include sex offenses like rape and sexual assault in their annual security reports be expanded to include other sex offenses including dating violence, domestic violence, and stalking. VAWA also required that colleges and universities include in their reports information about their policies and procedures for preventing and addressing those offenses when they occur.

The Department of Education’s job in promulgating regulations was to flesh out the details of those requirements, such as by providing definitions of the newly-included sex offenses, as well as the content to be included in the institution’s disclosures about policies and procedures.  The process of creating those regulations began last year when a committee of experts representing a variety of stakeholders convened to help negotiate a draft of these proposed rules.  In June, the Department published the draft and opened it for public comment.  The final rule announced yesterday contains no surprises in the form of major departures from the earlier-published draft.  It does include insight into the agency’s reasoning for rejecting suggestions from commenters that certain changes be made.

Here are some highlights of the new regulations:

It's all about the definitions. Definitions are a big part of the new regulations, which seek to ensure that institutions are reporting on crimes and offenses in a consistent manner.  However, the Department pushed back on suggestions that the regulations provide a uniform definition of consent as it used in the description of sexual assault and other sex offenses. For one reason, an institution’s annual security report must include all offenses that are reported, not only those that result in discipline that turns on a precise finding of the lack of consent.  For another, states use different definitions of consent in their own laws, a fact that could cause confusion and make reporting more burdensome for institutions in those states whose definition differs from whatever definition the Department could have required. I think, in addition, that Title IX enforcement provides some assurances that institutions won't vary too dramatically from suggestions the Department of Education and the White House have already provided (here and here, e.g.) for defining consent as voluntary, revocable, not implied by past relations, and not applicable where the individual is impaired, unconscious, or asleep.

Trans-inclusive Security Reports. The requirement that colleges and universities report statistics on hate crimes has been amended to include crimes motivated by the victim’s gender identity, which should lend visibility and transparency to campus violence targeting transgender and gender-nonconforming people.

Prevention and Intervention Must be Addressed. Colleges and universities must describe their “primary prevention and awareness programs” related to sexual violence, including the institution’s policy prohibiting such conduct, its policies and procedures for dealing with sex offenses that are reported, and its ongoing efforts to promote bystander intervention and prevention. In requiring efforts aimed at "primary" prevention the Department is signaling that it requires institutions to go beyond informing students how to keep themselves safe, but to target and prevent "primary" offending behavior itself.

No Standard of Evidence Requirement.  The regulations’ requirements for the substance of disciplinary procedures that must be included are compatible with the Department of Education’s interpretations of Title IX in that both require institutions to provide symmetrical rights to the victims and accused.  One difference, though, is that the new Clery regulations do not require institutions to use any particular standard of evidence during a disciplinary proceeding (only that they report whatever standard they use).  The Department's analysis makes clear that "A recipient can comply with both Title IX and the Clery Act by using a preponderance of evidence standard."  Still, I regret that the Department has missed an opportunity to elevate the preponderance standard from a requirement imposed by agency guidance (which can easily be revoked by a subsequent presidential administration) to the status of binding regulation that is more difficult to change.  

Attorneys May Serve as Advisors.  Another controversial issue addressed in the Clery regulations regarding the disciplinary process is the role of the advisors to both the victim and the accused.  The regulations require institutions to allow students to be represented in the process by an advisor of their choice, and any restrictions on the advisor's role must apply symmetrically to both parties.  Some commenters argued that the regulations should prohibit attorneys from serving as advisors, in order to prevent the process from becoming judicialized and potentially more complicated, expensive, and unfair to whichever side cannot afford an attorney.  The Department thought those concerns were best addressed by institutions in their decision on whether and to what extent to limit the advisors' role. 

These regulations are effective as of July 1, 2015, but should likely inform institutions existing efforts to comply with the amended Clery Act, which has already gone into effect.

Saturday, October 18, 2014

Attorneys Fees Awarded to Prevailing Plaintiffs: An Example from Delaware State

The American judicial system typically requires each party to pay their own way when it comes to attorney fees -- in contrast to, say, the British system that has a "loser pays" approach.  The American system can make it difficult for individual plaintiffs to get justice in some cases. If the plaintiff is seeking large monetary damages, she may be able to make an arrangement to pay an attorney on "contingency" or out of the proceeds of the case. But if the plaintiff is seeking non-monetary relief, such as an injunction, this is not possible, and either she, or a pro bono attorney, would have to bear that cost. 

Fortunately, a statute applicable to civil rights laws litigation permits courts to make exceptions to the "pay your own way" American rule and require defendants to pay for the plaintiff's expenses of hiring an attorney and litigating the case. Sometimes, there are disputes about how much is reasonable to expect the defendant to pay, and those cases end up producing litigation themselves (and thus, get on my radar for possible fodder for blog).  That's what has happened in the Delaware State litigation.  You may recall the litigation challenging the university's decision to discontinue its women's equestrian team.  In approving a consent decree to settle the case on plaintiffs' terms, the court ordered the university to pay the plaintiff's attorneys fees -- not only for the cost of litigating the case, but also for the cost of continuing to monitor the consent decree.  When the plaintiffs lawyers -- which include the nonprofit Women's Law Project -- requested fees for monitoring the consent decree from Delaware State, Delaware State argued that some of the things they had charged for were not reasonable. Recently, the district court rejected Delaware State's argument and ordered it to pay what the plaintiffs had requested -- a total of $77,293.64.  This was on top of the $475,442.21 that Delaware State had to pay the plaintiff's attorneys  back in 2010 to litigate the case in the first place.

The substance of this particular dispute over attorneys fees, as well as the result, is not particularly unusual or noteworthy, but I offer it here as an example of this important aspect of civil rights litigation. The ability to recover attorneys fees to litigate a case makes it possible for plaintiffs and their lawyers to afford the cost of seeking justice.  Moreover, that Delaware State has had to pay over half a million dollars -- in a case that settled even before the lawyers had to litigate motions for summary judgment, a trial, or an appeal, no less! -- also serves as a cautionary tale to erstwhile defendants that even where money damages are not on the line, it doesn't pay to discriminate.

Decision: Foltz v. Delaware State Univ., 2014 WL 4954304 (D. Del. Sept. 30, 2014) (awarding attorneys fees for continued monitoring of consent decree). 

Friday, October 17, 2014

Another California School District Settles Title IX Case Over Harassment and Discrimination of Transgender Student

The Department of Education announced this week that it has entered into a resolution agreement with the Downey Unified School District. The Department had been investigating a complaint filed on behalf of a transgender student who has consistently asserted aspects of her female gender identity since enrolling as a kindergartner in the Downey public schools. The complaint alleged that while she was an elementary student, the student was the subject of discrimination on the basis of gender identity when school officials disciplined her for wearing makeup when other female students were allowed to do so. As part of her punishment, she had to write a letter of apology for making male students uncomfortable. She was also allegedly the victim of  verbal harassment including being called homophobic and sexist slurs by other students on the bus, to which school officials failed to adequately respond. After she fully transitioned to female during her fifth grade year, school officials refused to use her female name.  While some things improved when the student graduated to a middle school that respected the students gender identity, name and pronouns, the student was still subject to peer harassment and the complaint suggested some school-wide measures that were not taken to try foster a more tolerant and inclusive climate.  Based on her experiences in elementary school and middle school, the student wanted assurance going forward that high school administrators and faculty will be responsive to harassment, respectful of her gender identity and expression, and willing to treat her just like any other girl.

The resolution agreement addresses the student's concerns for the future by requiring the school district to "continue to treat the student the same as other female students in all respects in the education programs and activities offered by the District, including access to sex-designated facilities for female students." The district is prohibited from disciplining the student from "appearing in a manner that does not confirm to stereotyped notions of masculinity and femininity" and must remove all past such disciplinary notations from the student's records. Additional measures the school district will have to undertake include hiring a consultant to help the school address the climate issues giving rise to harassment, conducting mandatory training for district administrators to ensure they are responding appropriately to gender non-conformance- and gender-based harassment, and reviewing its policies to ensure that transgender students are provided every opportunity to participate in all programs "in a manner that does not discriminate based on sex, gender identity or gender expression."

Like the Arcadia school district resolution, which was similar, this resolution is an important signal of a school district's obligation under Title IX to protect equal rights of transgender student.  While the requirements that school districts appropriately respond to gender-non-conformance-based harassment is not a new or groundbreaking application of Title IX, other aspects of the resolution are cutting edge. In particular, the requirement to treat transgender student like any other girl with respect to sex-designated facilities is part of an emerging definition of sex discrimination that enhances Title IX's effectiveness to challenge transgender student's exclusion from the bathrooms, locker room, dormitory, or sports team that comports with their gender identity. 

Thursday, October 16, 2014

In my inbox: Trans students at women's colleges

It was a trans-centric day for my email inbox.

First I received this petition from change.org asking Smith College to adopt a more trans-inclusive admissions policy. This is somewhat similar to a petition from last year that was protesting the denial of admissions to a transwoman because her FAFSA identified her as male and after she was told by someone from Smith that this would not be an issue.

The change.org petition, created by a group called Smith Q&A, actually includes a recommended admissions policy which they modeled after the one Mills College (in California) recently adopted. It is asking the administration to change its policy requiring female gender markers on transcripts and letters of recommendation for transwomen seeking admission to the college in light of the constraints--legal, emotional, cultural--that transwomen face regarding "official" change of gender or even being out as a transperson.

Interestingly, the recommended admissions policy does not extend its categories for admission as far as the one announced earlier this fall by Smith's Pioneer Valley neighbor, Mt. Holyoke College.

Though the policy created by Smith Q&A does allow for women who transition to men while on campus to remain on campus and enrolled, it does not allow for those men who are seeking admissions after already or in the process of transition.

I suspect that Smith administrators and trustees will be addressing this (publicly) before the end of the academic year given the attention the MHC announcement received (and the comparisons being made to Smith) and because other women's colleges are also grappling with this issue...

One of the other emails I received today was from a student who was pointing me towards this NYT article about transmen at Wellesley. Similar to what is happening at other women's colleges, transmen are becoming a more visible part of the student population with some transitioning while at school and others entering somewhere along their (own personal) transition process. And this visibility has some people quite concerned. If women's colleges are for women, as some point out, what does it mean when students who do not identify as women are entering leadership roles on campus? One student whom the story focused on entered Wellesley knowing he was transmasculine but was not out to his family and checked female on the admissions application. He chose the school because he felt it would be a safe space for him.

This is an issue being raised as part of the discussion. It is not simply about who women's colleges are for? But what are women's colleges for? What is their mission in the 21st century? These are the questions women's colleges should be asking themselves--and many seemingly are doing so already.

And this is an issue that exists in sports as well. Erin and I have explored the role of women's sport spaces and their role in women's community as part of our research. We looked at recreational sports and the history of women's-only rec sports asking similar questions. Who is this for? What purpose does it serve? What changes occur when transmen are included in these spaces?

Interestingly I see parallels in the historical missions of many women's colleges and women's-only sport spaces. They were created as an environment (relatively) free from male influence, to empower women, to provide access to something that had been historically male-dominated. 

I understand why the presence of transmen feels threatening to some of these institutions, but I think more soul-searching needs to be done and more external searching for multiple voices from many constituencies about the meaning and purpose of women's spaces in our culture.  

Tuesday, October 14, 2014

Comparing Universities' Response to Charges of Sexual Assault -- What a Difference a Year Makes?

Last week, the day after he came off the bench to lead the University of Florida to a 10-9 victory over Tennessee, quarterback Treon Harris was accused of sexually assaulting a female student on campus in the early morning of Sunday, October 5.  The following day, the University announced that campus and local police were working together to investigate forensic evidence, and that it was suspending Harris from the team in the meanwhile. Citing "no tolerance" for sexual assault, University president Bernie Machen vowed that student safety was the institution's top priority.  But last Friday, Harris's accuser withdrew her complaint.  The university reinstated Harris and he is expected to be back on the field this weekend. 

Meanwhile, 150 miles away in Tallahassee, Florida State is struggling to get a handle on its own controversy arising from allegations of its quarterback's sexual assault controversy. This week Fox Sports News reported on evidence seeming to suggest that FSU officials and Tallahassee police worked together to delay turning over the case to the state prosecutor and give a "head start" to the attorney for accused Jameis Winston. Moreover, the university's own public statement released in advance of that report as preemptive damage control may have backfired in that it has provided ammunition to the victim's attorney to point out that the university athletic department's early role in the Winston case was concealed from other branches of the university like its Title IX office.

What do we make of these two Sunshine State examples, in close proximity of time and space, but otherwise worlds apart?  For one thing, I don't think we'll ever know what prompted a student to accuse Harris of sexual assault and then withdraw that complaint. One possibility is that she deliberately filed a false charge against Harris and then later had a change of heart; at the other extreme, it's possible that she' a victim two-times over -- first of sexual assault and then of social pressure to stay silent. Or, maybe she was deterred from standing by her initial accusation after weighing the downside of going forward and having to deal with upheaval that Winston's accuser has faced, against the downside of going without justice. If either of those last two possibilities reflect the truth, this case represents that we still have a ways to go as a society in terms of the support we provide to victims and the respect we give to their privacy. 

Yet by comparing University of Florida to Florida State, we might also come to a tentative conclusion that at least university culture is moving in the right direction in its response to sexual assault and the prioritization of student safety over athletics.  Even though the charge was later withdrawn, and even though we don't know why, what the University of Florida did when it had the charge seems, from what we know, to have been the right thing. Declaring "no tolerance" for sexual assault was not a rush to judgment against Harris but an explanation for the university's prompt response, transparency, and decision to suspend Harris as an appropriate interim measure to protect the students safety. Whatever remains uncertain about Florida State's response to the charges against Winston, it is clear that its response was distinguishable from that of University of Florida under similar circumstances. Maybe we chalk that distinction up to the difference a year makes -- especially a year as big as this past one has been for public attention and legal scrutiny into to the problem of campus sexual assault.

Friday, October 10, 2014

Football season cancelled in NJ

There is no Friday night football game tonight in Sayreville, New Jersey. The school board cancelled the season earlier this month after systemic hazing of first-year football players came to light.

More details are sure to emerge as an investigation into the incidents, which took place in the team locker room, allegedly unbeknownst to coaches or any other school staff person. This is not a Title IX case yet (and it may never turn into one) but some parents have hired lawyers and because the hazing was sexual in nature, the incidents described surely fall under the category of sexual assault.

According to various reports, upperclass players would come into the locker room, turn off the lights, and grab a first-year player and then use a finger or some other object to anally penetrate the player (who was being held down). Sometimes the player was forced to suck on whatever had been put in him.

The outrage over the cancelled season among some members of the community, including students, is especially disappointing. One, it speaks to the idea that football is a right and not a privilege--even when you are a highly successful program (making the playoffs for the past 20 years). Two, it trivializes sexual assault in two ways: when it occurs amongst boys (something recently addressed by the federal government in its new sexual assault laws) and when it occurs under the guise of hazing--a ritual required for admission to a group. And finally, in regards to students, these are young people who may be heading off to college in a few years, where the issue of sexual assault is being taken (more) seriously. So in regards to the female student who said "things have been blown out of proportion.We know the players, and hazing, to them, they didn't mean it in that way. It was more like being friends"--well the idea that talking about and reporting and punishing sexual assault is blowing things out of proportion is a paradigm that is shifting. And non-consensual digital anal penetration is not something that happens between friends. 

Settlement in Seattle sexual assault case

The case of a high school student who was raped during a school field trip has settled out of court. The Seattle Public Schools initially tried to downplay and dismiss the student's story that she was assaulted by a student-athlete on an overnight field trip when she was 15--despite the medical evidence that indicated sexual trauma. The student and her family continued to fight the school system, even when they moved out of state; and the story began to earn nationwide attention even as the school finally began a more substantive investigation. I wrote about the details of the case, the parents' advocacy, and the school's response at the end of the summer so I will not rehash them here.

The school district has agreed to a $700,000 settlement (which still needs to be approved by the school board) even though their investigation has not yet concluded.

Thursday, October 09, 2014

Title IX Invoked in Early Efforts to Protect Rights of Female Athletes at Alabama, Berkeley

A couple of Title IX stories about women's college athletics caught my eye this week. Here is a brief roundup.

First, a former women's basketball player at the University of Alabama is using Title IX to challenge the athletic department's allegedly discriminatory manner of allocating scholarships as well as a "fairly broad and comprehensive pattern of bullying, harassment, retaliatory conduct and institutional hazing," according to the attorney representing Daisha Simmons. The details of these allegation are not entirely clear, but the alleged retaliation and harassment are argued to have crystallized in the athletic department's attempt to block Simmons's request to the NCAA for a waiver that would have allowed her to play immediately upon transferring to another institution. It appears from this article that the player's lawyer has filed a complaint with the university, as it is noted that the complaint triggers an internal investigation by the university.  However, if the matter is not resolved internally the player's attorney says the matter would likely "wind up in federal court."

Second, some members of the women's field hockey team at the University of California - Berkeley are considering whether to file a Title IX lawsuit against the institution to challenge its failure to provide them with a field the 2015-16 season. The Bears are already playing without a home facility this season while their field is under construction, and recently found out that the displacement would last into next season as well. As a result of their displacement, the team has to travel to other facilities -- the closest of which are an hour away -- for both competitions and daily practice. All that time spent commuting time cuts into the players' available time to take classes and engage in other aspects of student life. If the players pursue Title IX litigation, I predict that central issue will be whether Berkeley treats other men's teams differently when they are displaced for field construction, such as by doing a better job to minimize the length of displacement and finding better temporary facilities for games and practices. If the players don't have an argument along these lines, however, it is possible that a court would see this situation as one that is unfortunate but that does not constitute sex discrimination.

Thursday, October 02, 2014

Catholic Diocese in PA Bans Schools' Participation in Coed Sports

The Harrisburg, Pennsylvania Catholic Diocese has prohibited its schools from participating in coed sports where "substantial and potentially immodest physical contact" could occur. The policy, which also cites "safety" as a motivating concern, not only prohibits area Catholic schools from integrating their wrestling, football, and rugby teams, but also requires their teams for forfeit games or matches against (or against teams that include) opposite-sex opponents.

The policy change, which went into effect this summer, coincides with a federal district court ruling earlier this year that acknowledged a female student's right under the Constitution's Equal Protection Clause to try out for her public middle school's wrestling team. Because the Catholic schools of Harrisburg compete against public schools that would be subject to the ruling, it seems plausible that that the court's decision was at least part of the Diocese's motivation to enact its new policy.

Are there any legal implications of the Diocese's new policy?  After all, Catholic schools, by virtue of being private rather than government-run, are not subject to the Equal Protection Clause. Therefore, despite the fact that courts have repeatedly rejected the generalizations and stereotypes (like safety and modesty) that underlie most decisions to separate girls and boys in sports, such rulings are not binding on private schools like those run by the Diocese. Moreover, while Title IX would apply to any of those private schools should they happen to accept federal funds (such as, for instance, to run a school lunch program), Title IX is strangely permissive of the segregation of contact sports. Therefore, a student who opts in to private, Catholic education has no legal right to try out for teams designated for the other sex. 

But I also think about the rights of students at public schools whose athletic opportunities are limited by virtue of their schools' decision to schedule competition against Catholic schools who are subject to this policy. Public school students, whose rights are protected the Equal Protection Clause, have the right to play on coed teams. And even though Title IX does not require a school to allow coed contact sports, schools that do allow it are prohibited by Title IX from discriminating on the basis of sex against those who make the team. When public schools schedule athletic competition against a school that is required to forfeit, that school's coed team ends up with fewer opportunities for competition compared to the teams that are not coed. Or, the girls on that coed team, who could possibly be benched or volunteer not to play in order to preserve the game, end up with fewer competitive opportunities. Either way, scheduling games against the Catholic schools creates discrimination against those teams that have a female participant (and thus, on the basis of in sex). In the interest of compliance with Title IX and the Equal Protection Clause, public schools ought to leave the Catholic schools off of their competition schedules. The law may not insist that private Catholic schools treat students equally on the basis of sex. But the consequences of a Catholic policy should not be allowed to impair the experience of coed participants at public schools. 

Tuesday, September 30, 2014

California Requires Affirmative Standard for Consent to Sex at State-Funded Colleges and Universities

This week the governor of California signed legislation putting into effect a requirement that colleges and universities receiving state funds define sexual assault as the absence of affirmative consent in their codes of conduct. Dubbed the "yes means yes" standard, the requirement for affirmative consent is meant to clarify what is often the murkiest element of sexual assault by clearly defining as nonconsensual any sexual contact that both partners have actively agreed to. The law also clarifies that someone who is drunk, drugged, or asleep cannot provide consent.While consent must be actively affirmative, it need not be express, as the law allows universities to include nonverbal expressions of consent, such as nodding one's head or moving in closer. On the other hand, consent must be revocable by either party at any time, and must be renewed for each encounter.

I've read many comments that criticize this challenge as an unrealistic expectation that is at odds with college students' natural behavior. Yet at the same time, I noticed several indications of support for an affirmative consent standard among students whose colleges have already imposed one. One male student characterized the Grinnell College student body as generally enthusiastic about its affirmative consent standard that was adopted in 2012, while another male Grinnell student testified that he has worked in questions like "are you all right with this?" and "do you want to go further?" without it feeling odd. And on NPR last night, a female student at Occidental said  affirmative consent was "already happening" in her experience, which has included getting questions like "are you good?" that have created openings for her to be specific about what she wants.

Affirmative consent can't really be such a hopelessly unrealistic standard, then, if it's garnered support among students in some places and is already happening naturally in others. Moreover, it's worth pointing out that male and female students alike have entered the public discourse on this issue in favor of affirmative consent. It's possible that students of both sexes realize that just little questions like "are you good?" seem like a small price for the kind of clarity that reduces risks for both the asker and the receiver of such questions.

And even if the critics are right, and affirmative consent is at odds with college student's natural behavior, it is also worth remembering that it's not worst thing in the world to challenge and support students to do better than they otherwise might and to cultivate character and emotional maturity than they have coming in. That is, already, a role that is undertaken by higher education in this country, and there's little reason why that role cannot extent to the issue of consensual sex as well. 

Sunday, September 28, 2014

Results of an investigation: The SUNY system

We get asked a lot about what happens when OCR conducts an investigation of a school's sexual assault policies and procedures and what OCR will find and what they will require a school to do. Obviously before an investigation is concluded, we can only speculate based on what we know about the situation on campus and what OCR has done in the past.

With so many schools under investigation we are hearing more about what schools have done to get themselves on the list and less of what becomes of them when an investigation is concluded. Erin wrote about the changes coming at OSU earlier this month, but usually we have to search to find out what OCR is requiring of a school.

I found, though, this piece about how the SUNY system has been proceeding after OCR's investigation. The voluntary agreement SUNY (with 29 schools) has entered into requires yearly reports for the next two years that assess the situation at each campus and show what steps are being taken to address sexual assault and harassment.

SUNY seems to be taking the agreement seriously noting that their tactics for addressing these problems differ across their campuses. So rather than instituting broad scope system-wide measures, they are looking at what kinds of problems are arising at each location: faculty harassment, sexual assault during travel abroad programs, and harassment by ex-boyfriends and girlfriends. See the link above for more details about what is happening across the state.

Sunday, September 21, 2014

Intercollegiate football <--> NFL: The case of Jameis Winston

I have been meaning to write about the re-investigation by Florida State University into the sexual assault allegedly committed by Heisman Trophy winner Jameis Winston.
The initial investigation into the charges of sexual assault, which is required by Title IX, was done more than a year after the assault for a variety of reasons, according to FSU which include lack of compliance by the accused and the then-ongoing investigation by Tallahassee law enforcement which did not result in enough evidence, according to the state attorney's office. (Perhaps, in part, because there was a never statement by Winston.)
The re-investigation does not, of course, ameliorate the Title IX violations. It should have occurred within 60 days of the reported assault.
But lawyers for the victim (who is no longer at the school) say they are pleased with FSU's current investigation. Though what results and when (after the post-season?) remains to be seen.
So all this has been going on during the late summer and into the start of the academic year.
And then this past week students and bystanders report that Jameis Winston was standing on a table in the student union yelling something obscene about women. The university investigates and decides, on Wednesday, to suspend him for the first half of their game against ACC rival Clemson. Winston gives a press conference and apologizes for his actions and seemingly to the FSU community--but not to women, curiously. He talks about overcoming adversity---as it relates to being a football team playing without its star player.
And then late Friday, FSU announces that after the "continuing investigation"* into the incident the powers-that-be have decided Winston should sit the entire game. The reasons for this revision of the punishment were never clearly explained. There was some speculation that Winston's account of the event did not coincide with that of bystanders.
I want to discuss Winston in light of his current position as an intercollegiate athlete who has been accused of sexual assault and as a future NFLer. (It is presumed that FSU is just trying to keep Winston eligible for this season and that he will enter the draft.)
The campus sexual assault movement has raised the issue of athletes committing sexual assaults and how these assaults are being addressed by schools (i.e., handled by athletic departments, athletes transferred to new and willing schools).
This past week, as Erin wrote about, the White House added to the conversation by creating a public awareness campaign about campus sexual assault. Part of the goal is to make this a campus community issue and not one that exists solely between victim and perpetrator (and those adjudicating and investigating). Whatever its faults, the purpose is to change campus climates.
FSU's handling of Winston's latest "bad decision" (Coach Jimbo Fisher) fails to do this. And Winston's own understanding of what he did and how he handled it also reflects the failure of the institution to convey (assuming that it actually wants to) that it takes these issues seriously.
Winston dressed for the game and went out in warm-up and took snaps. Apparently there had been some miscommunication, because Fisher sent Winston to the locker room and he came out with just his shirt and sweatpants and a baseball cap. How did Winston not get the message that his punishment would be enacted? Did he think that when things started going badly (as they did in the first half) that someone from on high would come down and say "ok, that's enough. Go in there and be the hero." Some media folks had suggested that the original half game suspension was actually setting Winston up for hero status.
What was also troubling, especially in light of the campaign for community responsibility, was the way Jimbo Fisher talked about the punishment. In the pre-game interview he refused to talk about it all saying that it was something they were handling.
This was a reiteration of his earlier statements made after the announcement of the half-game suspension and critiques that it was too light:
"We're in charge. It's our team. That's our thought."
That is not a statement that suggests greater concern for the sexually hostile climate that exists at FSU.
Switching attention to the organization Winston will likely become a part of: the NFL. I don't think anyone needs a refresher on the image problems that organization is facing. The question is, what will the NFL do with Jameis Winston? Which team will take him on? There have been some rumblings about whether Winston has hurt his future professional prospects (but mostly from the perspective of endorsements, not whether he will have a job as a football player). But Winston will enter the draft after the close of what is turning into a highly controversial season for the NFL and after the NFL releases its report on violence against women (expected by the Super Bowl).
The culture of privilege and the institutional ignorance about violence against women do not just emerge when athletes enter professional sports. They are cultivated in intercollegiate sports. Winston is just the current example; he is not the first, but how his story and future unfolds will be an indicator of how serious both college and professional football are about challenging their own damaging cultures.



* These are the moments that further our cynicism about internal investigations.

Saturday, September 20, 2014

Ninth Circuit Affirms Title IX Win Against California School District

On Friday, the U.S. Court of Appeals for the Ninth Circuit affirmed a district court's ruling after trial that the Sweetwater Union School District in California violated Title IX by providing inferior facilities and resources to girls' athletics at Castle Park High School and committed retaliation when it fired a coach who advocated for equal treatment.

First, the court affirmed the lower court's conclusion that Sweetwater failed to satisfy any aspect of the three-part test for equality in the number of athletic opportunities available to each sex.  First, the disparity between the percentage of girls in the Castle Park student body and its percentage of female athletic opportunities was a minimum of 6.7 during the time frame at issue in the litigation.  The court agreed that this could not amount to "substantial proportionality" because 6.7 percentage points translates to 47 more girls who would have had athletic opportunities if they were proportionally distributed, and 47 girls "can sustain at least one viable team." Second, the fact that Sweetwater increased the number of girls' teams over the last ten years did not constitute a history and continuing practice of expanding opportunities for girls since the number of athletic opportunities actually decreased during that time (from 156 to 149). Third, the school district did not effectively satisfy the interests and abilities of female students, having eliminated a girls field hockey team twice within the time period at issue, and for reasons not related to a lack of interest in the sport.  The court also rejected as both false and irrelevant the school district's argument that it should not be expected to sponsor a field hockey team because field hockey is not sanctioned by the state high school athletic association.

The court also affirmed the lower court's ruling that the school district retaliated against the plaintiffs (a class of female student athletes) by firing the softball coach in order to keep him from advocating for equal treatment for his team.  First the court agreed that the plaintiffs were challenging retaliation as it was directed to them, rather than asserting the rights of their coach, which would have raised concerns about standing. It then went on to affirm the lower court's conclusion that the school district's purported reasons for firing the coach were pretext for retaliation. 

The injunctive relief ordered by the lower court -- the requirement that the school district prepare a compliance plan -- should now go into effect. 

When we blogged about this case before, I mentioned that it was a historic case because it was the first time a high school had been brought to trial for violations of Title IX in its athletics program. There is comparatively little historical significance in the outcome on appeal, however, as any other result would have been difficult to imagine. Moreover, the Ninth Circuit decision adds to the overwhelmingly favorable appellate court win-rate for plaintiffs challenging sex discrimination in athletics. See, e.g. (95%).  In fact, perhaps the most remarkable thing about this appeal was the school district's chutzpah in trying to justify the discrimination in this case, and its failure to back down either before or after trial.  

Friday, September 19, 2014

White House Unveils New Public Awareness Campaign Aimed at Campus Sexual Assault

As part of its larger effort to focus public attention and government resources at the problem of sexual assault on campus, the White House today unveiled a new public awareness campaign aimed at amplifying the message that sexual assault is not just a matter between the perpetrator and the victim, but "one in which the rest of us also have a role to play." The campaign's name "It's On Us" reflects what is at core a basic but fundamental idea that sexual assault is a community problem with a community solution.  From the campaign's website, individuals can take a pledge, and then share
And they can share the fact of their having pledged with their social networks via Facebook and Twitter. 

This is the pledge: 
To recognize that non-consensual sex is sexual assault.
To identify situations in which sexual assault may occur.
To intervene in situations where consent has not or cannot be given.
To create an environment in which sexual assault is unacceptable and survivors are supported.
I recognize that is only small piece of a larger, more comprehensive governmental response, so it's unfair to criticize this initiative for being simply an online pledge. It's fine to incorporate a pledge initiative as one aspect of a multi-pronged approach. Especially when combined with social media, a pledge has the power to, by going viral, help normalize intolerance for sexual assault. But I think as far as its content goes, the pledge has only modest value in its over-simplicity.

The first sentence, for starters, is tautological. Sexual assault is defined as non-consensual sex and non-consensual sex is another word for sexual assault.

The second sentence is uselessly vague, since sexual assault "may occur" in any situation where one person and another person are in each other's company.

I like the third and fourth sentence well enough for what they do say, but I think they miss an opportunity to dig at least a little deeper into the root cause of the problem. As far as I'm concerned, sexual assault is a community problem worthy of a community-based solution (as opposed to a problem caused solely by individual offenders) because many more people than just rapists participate in the sexualization and objectification of women, which in turn creates a culture that gives offenders the perception of having permission to exert sexual power over women. This added layer of collective responsibility is lost in a message that makes it seem like it's sufficient to pledge to be ready to stop your female friend from going upstairs with that guy, or to give her a shoulder to cry on after she is assaulted. Maybe we should pledge to avoid language of sexual dominance ("scoring" and whatnot). Maybe we could pledge to boycott products that use sexualized images of women (or men) in their advertising. Maybe we could pledge to criticize all social contexts (professional sports, online gaming, Reddit, etc) that purvey and condone women's (or anyone's) sexual objectification.  That might actually make more sense as a message that is taking as a starting point the idea that sexual assault is a community problem for which we are all responsible.  It's well enough to pledge to "intervene" and "support" but I think it's also necessary to encourage people to examine their own behaviors that contribute to the culture that has given rise to this problem.

Sunday, September 14, 2014

Do Competitive Spirit Competitions Offer Athletic Opportunities that Count Under Title IX?

As the school year gets underway in Texas, high school students there have the opportunity for the first time to compete in a statewide cheerleading competition sanctioned this summer by the state's interscholastic athletic league (the UIL) on a one-year trial basis.  The four-day competition will be based on "what cheerleaders do during a pep rally or on the sidelines, without the high-flying tosses and difficult gymnastics found in competitive cheer" -- according to the UIL's executive director.  The league was reportedly motivated to add the cheerleading competition in order to  ensure that school districts' cheerleading programs comply with its health and safety regulations.

Ensuring the safety of cheerleading participants is an important objective, and I support the league's decision to create a "Game Day Cheer" competition in Texas on these grounds. Separately, however, it is important that school districts who decide to participate in this competition do so because they wish to enhance extracurricular opportunities for the students involved, and not because it counts as a source of athletic activities under Title IX. 

While the Department of Education's Office for Civil Rights does presume that activities recognized by the institution's athletic association count as a source of athletic opportunities that should be counted under Title IX, this presumption can be rebutted by evidence that the activity in question is not similar in nature to the other athletic opportunities supported by the institution.  The factors that are used as a the basis of this comparison include how the activity is administered (i.e., by the athletics department, like other sports), how the activity is structured in terms of having practice and competition schedule that is comparable to other sports, that opportunities to compete in a post-season tournament are, like in other sports, based on regular season results, and that selection for the activity is based on athletic ability.   The application of these factors raises doubts about the ability of Texas competitive cheer to count as a source of Title IX opportunities. Moreover, the judge in the Quinnipiac case  determined that the competitive cheer team at issue in that case did not count as a source of athletic opportunities under Title IX because too many of the team's competitions emphasized non-athletic factors such as spirit-raising.  Given that Texas's state championship deliberately emphasize spirit raising to the stated exclusion of athleticism, it would seem to be disqualified from the Title IX analysis for that reason as well.

To be clear, I found no suggestion that the UIL is promoting competitive cheer as a means for its member school districts to comply with Title IX. However, I did note that just as the UIL endorsed competitive sideline cheer, it rejected proposals to sanction water polo and bowling, both of which could have served as sources of athletic opportunities for girls.  I worry that this sends the wrong message to school districts that they can add competitive sideline cheer instead of other girls sports, when for schools lacking in compliance with the three prong test, this is not legally the case.  Any Texas school district that uses competitive cheer opportunities to suggest the appearance of gender  balance in the distribution of athletic opportunities is taking a legally vulnerable position that would be hard to defend to OCR or to a federal court.