Thursday, May 28, 2015

Former Softball Player Sues St. Joseph's University Over Hazing

This month, St. Joseph's University suspended its softball team with three games left in the season in response to reports that the team engaged in hazing practices to initiate new players.  Now the university faces a lawsuit filed by one of the players who claimed that she was the victim of sexual harassment as part of that hazing, that university officials knew about and failed to adequately respond.

The complaint describes a seven-day period during the plaintiff's freshman season that was kicked off by intimidating letters with weird sexual content.  The plaintiff was required to engage in simulated sex and watch others do the same.  Her teammates required new players to answer questions about her sexual experiences, drink alcohol, and answer to demeaning nicknames.  However, the administration discovered and curtailed the hazing, though it did not initiate a formal investigation or disciplinary process.  Subsequently, during the plaintiff's sophomore season, the hazing ritual resumed again, with upperclass players insisting that they were "picking up where it was left off," so the same rituals began again. 

The plaintiff alleges that the university violated Title IX, among other legal obligations. The standard for institutional liability under Title IX first requires that the plaintiff endure serious harassment of a sexual nature. This excludes from the court's consideration allegations related to alcohol pressure and non-sexual nicknames -- including the allegation that coach called her one that was, while not sexual, pretty demeaning and gross.  Next, the plaintiff must prove that the university had actual notice and responded with deliberate indifference.  Here, the plaintiff must rely on the hazing she endured freshman year of providing notice to the university that the team would continue its behavior in subsequent seasons. The university responded to the freshman year hazing by shutting it down, so the plaintiff must convince the court that more was required to avoid committing deliberate indifference.  Unfortunately for the plaintiffs, many courts interpret deliberate indifference very narrowly to exclude just about anything north of nothing.  So the plaintiff will have to convince the court that what little the administration did to the team in her freshman season was tantamount to nothing.  The university would seemingly not be liable for the sophomore season hazing, since it has seemed to responded swiftly and strongly by suspending the team. 

For other recent stories about universities getting tough about hazing, see here (Stanford band) and here (Western Kentucky swim team).

Friday, May 22, 2015

"It's safer to be quiet": Cultures of retaliation~Cultures of sexual violence

So many voices have created the current level of visibility and activism around campus sexual assault. This week we are hearing them speak about retaliation in light of recent events that reveal the connection between cultures of sexual violence and cultures of retaliation against victims and allies who speak out.

Arguably the most visible story this week is out of New York. Columbia University graduation was this past week and Emma Sulkowicz was among the class of 2015. Sulkowicz has been carrying a mattress around campus this past year as part of a performance art piece. She vowed to keep carrying the mattress until Columbia kicked her rapist off campus. They didn't. There is an extensive back story to Sulkowicz's experience which is marked by administrative ineptitude that has never been explained or accounted for. Columbia should be apologizing to Sulkowicz but instead the university president refused to shake her hand* at last Tuesday's Senior Day ceremonies where Sulkowicz, with the help of friends, carried the mattress across stage; the last time she would carry it.

Her assailant, Paul Nungesser, also graduated this week. He was on stage a few minutes prior to Sulkowicz. He has filed a lawsuit against the school in relation to Sulkowicz's project/protest.

There has been great support for Sulkowicz, and the mattress project has inspired other activists across the country to take up the mattress as a symbol. But there has also been significant retaliation. The university contends that President Bollinger did not slight Sulkowicz--who made a concerted effort to make eye contact and shake his hand--but rather that the mattress was in the way. Given that various administrators worked very hard to keep Sulkowicz from carrying the mattress on stage, I find it hard to believe that the lack of a handshake was really due to the fact that the mattress was blocking such a gesture. Only symbolically!

Sulkowicz said she would not participate in the ceremony if she was not allowed to carry the mattress. Because of the attention to her case, this would have been even worse PR for Columbia. Though the recent posters calling Sulkowicz a "Pretty Little Liar" have not been great either.

These posters, found around campus, are part of a larger effort to silence and discredit Sulkowicz and all those who would think about reporting their assaults, those who support victims, and even those who participate in investigations (which I will discuss in a moment).

This anonymous piece in Jezebel speaks to the culture of retaliation at Columbia. Written by the woman who reported that Nungesser sexually assaulted her--a year before what he has called consensual sex with Sulkowicz, the author details her experiences and why she remains anonymous.   She is one of 4 people who report being sexually assaulted by Nungesser. The very visible and violent backlash against Sulkowicz had a silencing effect on this woman--who has only ever commented anonymously about her case--her and most likely other victims. There are so many pieces of this editorial I would like to quote (I recommend reading it all) but the most chilling phrase comes towards the end: "it's safer to be quiet."

That is certainly what a Stanford undergraduate learned this past semester. (Not a great week for Stanford.) This student is being held responsible--by the masses--for getting the Sigma Alpha Epsilon fraternity kicked off campus. She never reported the behavior she saw on pledge night; behavior that she found offensive and so left after 30 minutes. But she was asked to give a statement as a witness. She was not assaulted and never claimed to be. Somehow fraternity members found out her name and began harassing her. So despite the other factors that contributed to SAE's expulsion, this undergrad is being blamed. And when the harassment started against her specifically, this triggered an additional investigation into the fraternity. It was going to happen with or without her participation and after much thought (given her that her initial participation had gone so badly) she did decide to participate.

Her editorial is also startling and speaks to the climate of retaliation on college campuses that is barely (if at all?) being addressed as part of these larger issues.  She writes:
"My only chance to protect myself was to participate in the same Title IX process that had made me a target in the first place. I knew that any decision I made would affect not just me, but the culture surrounding reporting on campus. I am a victim of harassment and retaliation, and this experience has been among the hardest I have ever had to deal with. I cannot imagine what it must be like for victims of violence and assault. Given the retaliation I faced for merely being thought to have reported harassment, I don’t know if I could face actually reporting a case of assault. And I am not willing to become a cautionary tale, an example of the reasons why people shouldn’t report."

These stories, in addition to the ones presented in The Hunting Ground,  of women who spoke out  all include anecdotes about other victims who come to them for advice because they are too afraid to report. Too afraid of the treatment they will receive by administrators, by law enforcement, and from their peers. This is an integral part of how rape culture is perpetuated and more needs to be done specifically addressing this component.

Thursday, May 21, 2015

Cost-of-Living Stipends Raise Gender Equity Challenges

On August 1, a new NCAA rule will take effect that allows college athletic programs in the five "power" conferences to increase athletic scholarships to cover the full cost of attendance by providing athletes with a stipend to cover living expenses beyond tuition, books, and room. Will these new benefits to college athletes be distributed in compliance with Title IX?  If one institution's plans are any indication, it's not looking good for gender equity.

University of Nevada Las Vegas reports that it is committed to funding stipends for athletes participating in football and men's and women's basketball.  That means 98 men will benefit (85 scholarship football players and 13 basketball) compared to only 15 women. The university also reports that the average stipend award (which is not necessarily the same for each player but varies to reflect their own individualized costs) is $4500. That's amounts to a dollar-figure disparity of about $373,500 in favor of men's athletics at a university that already allocates 59% of its athletic financial aid resources to men's teams. 

In contrast, some schools plan to award the stipend to full-scholarship athletes in every sport, something that comes closer to equitable since the NCAA has women's volleyball, gymnastics, and tennis  (along with football and men's and women's basketball) to be full-scholarship instead of partial-scholarship (i.e., "equivalency") sports.  Some schools have also suggested they may award partial stipends to those on partial scholarships. 

These diverse approaches suggest a need for the NCAA and the power five conferences themselves to ensure that all member institutions are factoring gender equity in to their decision to award stipends, or, alternatively, that the Office for Civil Rights clarify an institution's compliance obligation under Title IX.  Such guidance could treat stipends like other athletic financial aid that is regulated by Title IX, and  requires the dollar figure amount be proportionate to the breakdown of male or female athletes.  Alternatively, given that the stipend amounts are individualized to each athlete taking into account factors other than sex, I think it would also be reasonable to instead require that the number of stipends (comparing full and partial separately) be equitable between the sexes.  Either way, however, it seems clear that athletic departments are not going to spontaneously comply with Title IX, and that guidance of some kind is in order.

Wednesday, May 20, 2015

Punishment and reforms for Stanford band

This week Stanford University announced the results of its investigation into the university's marching band. At issue was a climate of sexual hostility marked by harassment of members, especially upon initiation. In addition there were violations of hazing and alcohol policies. This has all resulted in a ban on the band's travel to away events next year. They will perform at home events and other unnamed non-athletic events.

We had not heard of this situation; it certainly has not made headlines like the OSU band scandal. (Though apparently the band has a reputation and have a history of rude behavior at schools.) The descriptions--admittedly vague--of the incidents suggest common issues among bands (and probably other college groups): alcohol, initiation rituals based on public humiliation, and sexual harassment/assault. What is interesting is the way these problems are framed when the group in question is a college marching band. The Dean of Residential Education commented on the findings and punishment: "The university's objective is to ensure a safe and harassment-free environment while honoring the band's traditions and its unique, irreverent identity." So band hazing/harassment is because they are quirky? When sports teams do this it's about team camaraderie. When fraternities and sororities do it, it's about loyalty to the organization.

It's all a form of violence. The commonality is that students largely think these things are fine and they are "part of the culture."

The band has the option of  appealing their partial suspension.

A few weeks ago we heard about another problematic culture within a university group: the swim team at Western Kentucky. Their investigation was more explicitly Title IX focused as it looked into numerous accounts of hazing. The punishment at WKU was far more extensive: three fired coaches, a 5-year suspension, and at least one athlete who will face criminal charges.

Again, the exact events that occurred within the Stanford marching band and the WKU swim team are unknown and comparing is impossible. However...there was no discussion of adult leadership in the Stanford case. I find this curious. Where were the university employees in all this? There are, of course, numerous cases of hazing within intercollegiate athletics where coaches claim they had no idea what was going on. But that excuse that the non-student adults are really oblivious as to what their charges are up to is not as readily accepted anymore as evidenced in the WKU case and of course in the OSU band case where the director was fired.

Hazing and harassment cases call for a greater questioning of the practices of any group culture and also inquiring into how that culture has been created and perpetuated. Did this really happen at Stanford?

Monday, May 18, 2015

Federal Court Rejects Title IX's Application to Transgender Restroom Case

Last month, a federal district court in Pennsylvania rejected claims that the University of Pittsburgh violated Title IX when it denied a transgender male student access to men's locker rooms and restrooms on campus. The court rejected the argument that discrimination on the basis of one's transgender status is incorporated into the scope of sex discrimination prohibited by Title IX and instead limited the meaning of sex discrimination to discrimination on the basis of one's biological sex. In reaching this decision, the court primarily relies on Ulane v. Eastern Airlines, an employment discrimination from the 1980s in which the Seventh Circuit court of appeals reached a similar conclusion about the scope of Title VII.  It also uses a similar mode of reasoning that the Ulane court employed, which was to emphasize that Congress did not have transgender students on its mind when it passed Title IX in the 1970s.  Though the court recognized that that definition of sex discrimination has been expanded in one particular way -- to include discrimination on the basis of sex stereotypes -- it concluded that was not the nature of discrimination alleged in this case because the plaintiff, whose natal sex is female, did not experience harassment or discrimination on the basis of his failure to dress in stereotypically feminine clothing.  Rather, the nature of the discrimination he faced was being treated differently from other men because he is a transgender man instead of a cisgender man.

Even though I think the court was right that this case did not present a sex stereotyping claim, by recognizing that such a claim would have been actionable, the court concedes that cases like Ulane are out of date and an inappropriate foundation on which to bases conclusions about the meaning of sex. If Title IX includes discrimination on the basis of one's gender presentation, as the Supreme Court has itself endorsed, it is not accurate to say that the law only prohibits discrimination on the basis of biological sex.  Several federal agencies and (so far only) one federal court have used that reasoning as a starting point for an even broader interpretation of sex discrimination that would have, had the court endorsed it here, provided a remedy for the plaintiff in this case.  For example, the EEOC recognized that discriminating against someone because of their transgender gender identity is a form of discrimination because of sex.  The Department of Justice and the Department of Education's Office for Civil Rights have endorsed this view as well, as evidence by the fact that they have brought enforcement actions against school districts in support of transgender students challenging their exclusion from sex-specific spaces (see also) and also filed briefs in support of students raising those arguments in court. Additionally, OCR's most recent guidance document about sexual violence also contained the sentence, "Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity and OCR accepts such complaints for investigation."

Unless or until the administration's more expansive definition of sex discrimination catches on with the judicial branch, educational institutions may have to contend with two standards for Title IX compliance: one that the courts apply in lawsuits brought by individual plaintiffs, and one that the government applies in its own enforcement actions. A school that excludes transgender students from sex-specific activities and facilities that accord with their gender identities may have less to fear from a student-initiated lawsuit, but could still be on the hook with OCR.  Such inconsistencies are not unheard of in the Title IX context.  For example, courts premise institutional liability for sexual harassment on a finding of deliberate indifference, while OCR has imposed a stricter and more specific standard.  As a practical matter, that means universities like Pittsburgh can continue to restrict transgender students single-sex spaces with little concern for injunctions or damages imposed by the court, but potentially risk being forced to change their policies in the context of an enforcement action by OCR. 

Decision: Johnston v. University of Pittsburgh, 2015 WL 1497753 (W.D. Pa. Mar. 31, 2015).

Tuesday, May 05, 2015

What Winston's drafting means

Florida State University quarterback Jameis Winston was the first pick in this year's NFL draft held last week. He won't have to go very far; as expected the Tampa Bay Buccaneers got him (they had the first pick).

I have seen a few commentaries on Winston's "off-field" troubles, though generally felt that the mainstream sport media talked around what they were calling "character issues" in the weeks leading up to last night's announcement. What utterly shocked me was a regional sports show in which the commentator noted that some of Winston's teammates, including roommate Ronald Darby, who also declared for the draft this year, might cause some teams to pause because of their off-field issues. There were no specifics provided (admittedly I did not linger on the channel so perhaps I missed them.) But I do know that Darby was in the cab with Erica Kinsman, Winston, and their third roommate. He was in the apartment while Winston assaulted her. According to Kinsman's accounts of the night one of the two roommates came into the bedroom and told Winston that he should stop. Darby was called into front of the school judicial board long before Winston. He was cleared of wrongdoing while roommate Chris Casher, was punished for taking video of the encounter. (It was deleted.) Darby may have other incidents in addition to being associated with this night (though it seems people care little about it); the point is that the commentator mentioned off-field actions as a potential deterrent to his selections by certain teams.

Despite the troubles Winston has gotten into during his brief time at FSU, however, and the pending civil lawsuit against him by Kinsman, his draft stock never fell. Let us recall a year ago when Michael Sam's draft stock plummeted after he announced he was gay. (See Cyd Zeigler's take on this one year later.)  Because in the NFL hierarchy being gay is a bigger distraction than being sued for assault.

Let's also recall Notre Dame alum, Manti Te'o who was drafted two years ago. He was picked in the second round but his stock fell too after a never-quite-explained story emerged about a dead girlfriend whom he had never met and, it turns out, never existed. This situation was described as a "character issue" and one that teams might have some issues with. Some of us thought teams were reading it as Te'o trying to cover his homosexuality. This has never been confirmed, but it certainly was a rumor and rumors abound at draft time and they affect how teams feel about these "off-field issues."

So non-normative sexuality related off-field issues = falling stock. Heterosexual sexual assault (and evidence of other misogynistic practices) = first round pick. The organizational memory of the NFL seems to be very short. I fear that Winston will remind them very soon of the need to more deeply address the culture of misogyny and homophobia in the organization.

And a final note on that deleted picture of Winston celebrating his first round pick (at home allegedly so he could be with his family) with a plate of crab legs. I know the context; the crabs were a gift from Deadliest Catch star Keith Colburn. Fine, eat and enjoy the crabs. Don't post a picture to social media with them though. And don't be surprised when there is negative reaction by both your new employer (the Bucs deny pressuring Winston to remove the photo, however) and the public. The crabs are a symbol: of ignorance, entitlement, and arrogance. Those all seem like pretty big character issues to me. 

Monday, May 04, 2015

OCR's Latest Report to the President, the Secretary of Education, and Congress

This week the Department of Education's Office for Civil Rights released its latest biannual report to the President, Secretary of Education, and Congress summarizing its work in fiscal years 2013 and 2014.  The report addressed OCR's efforts to enforce not only Title IX, but also Title VI (race and national origin discrimination), the Rehabilitation Act (disability discrimination) and other civil rights laws applicable to education.  According to the report, the agency received almost 20,000 complaints in that two-year period, 27% of which addressed sex discrimination. In contrast, disability discrimination takes up almost half of OCR's docket.

Athletics. Complaints about athletics constitute the overwhelming majority of the agency's Title IX-related work, notwithstanding the rising number of sexual assault and harassment complaints that we've seen in recent years.

OCR does not break down its data on athletics complaints to tell us how many came from college versus K-12, but it is probably the case that a vast majority of these complaints challenged athletic disparities at the high school level.  Nor does OCR provide an easy way to compare this data over time.  However, for some context, it is worth noting that the OCR's last report covered a four year period of time (2009-2012) and reported half as many athletics complaints (1,264). The current report provides a number of examples of athletics-related enforcement, including a resolution agreement that it reached with Southeastern Louisiana University in 2014, in which the university agreed to do a better job assessing interests and abilities under prong three and provide women's teams with access to facilities of comparable quality to their men's teams.  It also noted several resolutions with public school districts such as Indianapolis Public Schools. Unfortunately, the report did not provide any insight into OCR's handling of "mass complaints" filed against multiple school districts in a single state, which probably constitute a vast majority of the OCR's 3,609 figure.

Sexual Violence. OCR reported to have resolved 90 complaints involving sexual violence at the K-12 and college level during 2013-14. 25 of those resolutions were by voluntary resolution agreement, which is the agency's preferred way of handling findings of noncompliance.  While most of the illustrative examples OCR describes involve colleges and universities (Tufts and Montana, for example), the agency also took enforcement action against at least one K-12 school district for its failure to prevent and respond to sexual violence and harassment.  

LGBT Discrimination. OCR's report described having resolved two cases, one against a California school district, and another against an unnamed college, in ways that ensured transgender students' rights to be protected from harassment and be allowed to access facilities according to their gender identities.  To my knowledge, this is the first time OCR's report has described Title IX enforcement of this nature. The agency also described more generally a resolution agreement that required a charter school to conduct "age-appropriate student education on sexual harassment and non-conformity with gender stereotypes." 

OCR also briefly noted Title IX enforcement efforts related to pregnancy discrimination and retaliation claims.

Wednesday, April 29, 2015

Don't forget to follow the law!

The Department of Education released three new documents last week related to Title IX,  specifically the role of the Title IX coordinator.

One is a "Dear colleague" letter from Secretary Catherine Lhamon that begins by reminding all schools that they must appoint a Title IX coordinator:
"I write to remind you that all school districts, colleges, and universities that receive federal assistance must designate at least one individual to coordinate their efforts to comply with and carry out their responsibilities under Title IX..."

This set of documents related to the position of Title IX Coordinator is very important, especially the letter to coordinators and a resource guide. But as the "Dear colleague" letter points out, these are not new guidelines. Title IX is in its fourth decade. Why do schools need a reminder that they have to follow it?

Yes, the role of the coordinator has become far more prominent in the past several years given the visibility of campus sexual assault. Yes, it is important for the Department of Education to continue to inform schools and coordinators of their responsibilities as the application of the law shifts, new issues arise, and great accountability is being called for. Part of the reason, however, for the increased visibility of the Title IX coordinator is because when students started demanding a response from  administrators to campus sexual assault very few people knew who the Title IX coordinator was--sometimes this included the Title IX coordinator because the duties of Title IX compliance were wrapped up in another administrator's position. This is no longer a desirable practice. As the "dear colleague" letter notes, the coordinator is supposed to answer directly to the president and be "independent." Also, Lhamon suggests that larger schools might consider having more than one coordinator to both handle all the issues that arise and to make the position more visible to more of the school community.

Again, guidance is good. My frustration lies in the fact that this is not a new requirement. I cannot help but think that maybe there wouldn't be 100+ schools under investigation if schools had taken their responsibility regarding oversight more seriously. I watched The Hunting Ground last weekend (which I will write about this week hopefully) and was fully confronted by the ineptitude and ignorance of so many administrators. There is no excuse. There is a law. Follow it.

Tuesday, April 28, 2015

Court Dismisses Title IX Case of Student Suspended For Sexual Assault

Last Friday I blogged about a Title IX case filed against Columbia University by a student who prevailed in a disciplinary hearing for sexual assault but was subsequently and allegedly harassed as a result of his accuser's public protest.  But Columbia University was also in the news last week because a federal court recently dismissed a case that had been filed by a student alleging that the university's disciplinary process under which he was suspended for sexual assault was biased against him in violation of Title IX.

Like other similar plaintiffs, the "John Doe" plaintiff in this case attempted to raise both of the arguments courts have recognized as plausible applications of Title IX to disciplinary outcomes: arguments of erroneous outcome and selective enforcement.  To be successful, both arguments must be accompanied by allegations that could support a conclusion that the university intentionally discriminated against the plaintiff on the basis of sex.

In support of his erroneous outcome claim, Doe alleged that university officials committed errors during the investigation and hearing process that prevented him from demonstrating his innocence to the hearing panel that found him responsible for assault. Specifically, Doe focused on the actions of Title IX Investigator, whom Doe claimed did not adequately investigate the details of the night the sexual encounter occurred, and who presented a report that left out his version of the story.  The court was, at the outset, skeptical that the procedural deficiencies Doe alleged prevented him from demonstrating his innocence, noting that the hearing board found that Doe had exerted "unreasonable pressure for sexual activity...over a period of weeks" that rendered ineffective any consent that the victim could have provided on the night in question.  As a result, the court concluded, even if the investigator had been deficient in her investigation or presentation of the facts about that night, they would not have made a difference to the outcome.  More importantly, the court found lacking any specific allegation in support of Doe's theory that the investigator was motivated by gender bias, claiming only that she had "worked for a women's resource center in the past," a flimsy basis for inferring bias. Nor could the court give credence to any of the other of Doe's  conclusory declarations of bias, because they were not supported by any allegations of fact.  

The court also rejected Doe's selective enforcement claim, i.e., that aside from the matter of his alleged innocence, Columbia punished Doe more severely because of his sex.  Yet in this case, Doe did not allege that Columbia intentionally punished men more severely, or failed to adequately examine their innocence, because they are men.  At most, the court reasoned, Doe alleged that Columbia's disciplinary process is unfair to those accused of sexual assault, but since this category could include men or women, it does not support the conclusion that Columbia intentionally discriminates against men on the basis of sex.  And while Doe may argue that men are more likely than women to be accused of sexual assault, and thus more likely to be burdened by the alleged deficiencies in Columbia's process, this theory is not actionable under Title IX, according to the court, because of a 2001 Supreme Court decision foreclosing disparate impact lawsuits under Title VI -- the race discrimination statute on which Title IX was modeled.  As a result, it is not enough for plaintiffs to claim that a university's sex-neutral policies or practice impacts one sex more than the other. 

As demonstrated by this and other similar decisions cited by the court here, colleges and universities do not necessarily commit sex discrimination just because they discipline male students for sexual assault.  In contrast, however, when colleges and universities discipline students in actual violation of their own procedures, those cases can be successfully litigated without the lens of sex discrimination under breach of contract and negligence theories, see, for example, this case.  Yet, breach of contract and negligence claims don't support the "reverse discrimination" narrative that some may wish to advance by using Title IX to challenge what Title IX has wrought.  It may be that plaintiffs continue to advance the Title IX theory because if they could establish that universities are routinely* liable under Title IX for disciplining students for sexual assault, it would create the impression that Title IX is inherently contradictory, unworkable, and its application to sexual assault should be repealed. If that is the strategy, however, it does not seem to be working so far.

* I say routinely to account for the unusual case (e.g., this case, and possibly this case) where the plaintiff has a factual basis for alleging that the university used him as a "scapegoat" in a misguided effort to demonstrate compliance with an OCR resolution agreement.  When that is the situation, Title IX should provide a remedy.  However, when a university gets in trouble for going beyond what Title IX requires, it reflects negatively on the university not on Title IX. 

Doe v. Columbia University, 2015 WL 1840402 (Apr. 21, 2015). 

Friday, April 24, 2015

Student Accused of Sexual Assault Sues Columbia

Yesterday, Columbia University student Paul Nungesser sued the institution, alleging that it is liable for harassment that he experienced in the wake of a fellow student's accusations that he sexually assaulted her. The university did not find Nungesser responsible for any assault, and his accuser, Emma Sulkowicz, has been protesting this outcome by carrying a mattress with her around campus, a protest that is doubling as performance art project for credit in her art class.

The protest has apparently made Nungesser's life difficult. He alleges that it has caused him to experience "verbal aggression, intimidation, and hostility" for which he seeks to hold Columbia liable for unspecified money damages. His primary claim is under Title IX, which means that his case will have to satisfy the following elements required for institutional liability for harassment: (1) that the harassment is severe or pervasive; (2) that the harassment is because of sex; that Columbia officials had notice of the harassment; and (4) that they responded with deliberate indifference. I think all four of these elements will be challenging for him to satisfy, based on the allegations in the complaint.  First, though he describes the harassment as "severe" and "pervasive," he does not give very many specific examples beyond a couple of Facebook comments posted by friends of Sulkowicz who are not alleged to be students at Columbia. Verbal harassment must be really pervasive to be actionable, and the court is going to require that he show examples to satisfy this requirement.

Second, there is no allegation that he reported this harassment to Columbia University officials, nor that they responded with deliberative indifference. Finally, he does not explain in the complaint why the harassment targets him because of his male sex, as opposed to because people apparently believed he had gotten away with committing sexual assault. It is possible that harassers would have assaulted a female they perceived to have gotten away with sexual assault or other comparable violence in a similar way. 

Suprisingly, he does not include a defamation claim against Columbia or Sulkowicz, even though what seems to be at the crux of Nungesser's lawsuit is the fact that Sulkowicz's protest is making people believe he committed sexual assault.  Why doesn't he sue her for defamation, and try to get an injunction against the protest?  After all, she would have no special defense arising from the artistic nature of her protest.  If he indeed states falsely that he assaulted her and his reputation is damaged as a result, he should be able to prevail as long as he can prove that her claim is false.  Interestingly, the litigation strategy he has chosen avoids having to do just that.

OCR Issues Guidance on Title IX Coordinators

Today the Department of Education's Office for Civil Rights issued guidance reminding educational institutions of their obligation to designate a Title IX Coordinator.  This has been a requirement since the initial Title IX regulations promulgated in 1975, but far too often we read about institutions lacking in this critical area of compliance.  Lately, though, it seems like the Title IX Coordinator obligation is sinking in, as colleges and universities in particular are trying to catch up with their obligations to address sexual assault on their campuses. As a result, whereas at one time most schools who had a Title IX Coordinator considered it the role of someone in athletics, the position is more likely to be properly regarded as one with campus-wide duties and is often assigned to someone who otherwise works in human resources, student affairs, or increasingly, a stand-alone full-time position.

OCR's guidance consists of a Dear Colleague Letter that lays out various requirements and considerations regarding Title IX Coordinator, such as the requirement that they be independent and not engage in conflicts of interest, that they have the authority and support to carry out measures necessary to ensure the institution's compliance with Title IX, that they be visible and easy to find, and that they be trained. 

The guidance also contains a resource guide that provides an overview of an institution's compliance obligations under Title IX, and points the Title IX Coordinator (and other readers) to additional sources of information on those obligations. 

Wednesday, April 22, 2015

Should Western Kentucky's Women's Swim Team Have Been Suspended?

Last week Western Kentucky University announced the suspension of its swimming and diving program for five year after a Title IX investigation revealed widespread incidents of hazing, harassment, and sexual assault.  The investigation was reportedly prompted by a police report filed by one of the swim team members, alleging numerous examples of criminal and otherwise reprehensible conduct.  For example, the complainant reported that another of his male teammates sexually assaulted a female teammate who was unconscious, while others watched. He also reported that one of his male teammates had once placed in a chokehold for as long as he could stand it, causing him injury.  When the police searched the house where swim team members lived and held parties, they found photographs of teammates who had passed out from drinking, arranged in nude or semi-nude sexual positions and, in some cases, having been written on with racist and homophobic language.

As I told a columnist for the local paper in Louisville, I am glad to see universities taking seriously the problems of hazing and sexual assault. Suspension is a reasonable response to pervasive and intractable climate of hostility, aggression, and assault like the one revealed at WKU. However, one angle on this case that no one seems to be publicly discussing -- and that I myself was slow to realize -- is that all of the examples of misconduct appear to involve male swimmers, yet the university has suspended the entire program, men's and women's alike. This raises Title IX concerns under the principal of equal treatment that is codified in the regulations. Female athletes' participation is impaired -- by virtue of being held accountable for other athletes' misconduct  -- in a way that no male athletes' participation is impaired.

It may have been the case that in the course of responding to a serious problem with necessarily promptness, university officials did not consider the discriminatory effect on female swimmers.  Perhaps in retrospect they can reexamine the decision to suspend the female swimmers and, if warranted, reinstate their athletic opportunities.

Tuesday, April 21, 2015

Court Dismisses Title IX Count Against Pepperdine

In December, we blogged about a lawsuit filed against Pepperdine University by two college basketball players who allege they were harassed and mistreated by their by their coach and other university officials because they are lesbians.  Last week, a federal court in California narrowed the scope of their lawsuit by dismissing their Title IX claim, along with some of their right to privacy claim.  (The court refused to dismiss the plaintiffs' claims under California state law, which prohibits sexual orientation discrimination by educational institutions that accept state funding.)

The court dismissed the plaintiffs' Title IX claim because it alleged discrimination on the basis of their sexual orientation, specifically, the coach's concern that they were dating each other, which is not prohibited under Title IX.  Yet, the court acknowledged that that sex discrimination includes targeting people who do not comply with stereotypes associated with their sex, and granted the plaintiffs leave to amend their complaint to add allegations to support that as the basis for the discrimination they experienced at Pepperdine. 

As I noted in my earlier post, I was rooting for this case to push the courts to adopt a broader version of the sex-stereotype theory, one that accepts same-sex orientation as the type of gender nonconformity protected under sex discrimination bans.  So far, gay and lesbian plaintiffs have only succeeded in challenging discrimination due to some visible gender nonconformity, such as in one's appearance or mannerisms, although the EEOC has adopted the broader interpretation.  I wonder if the plaintiffs will add allegations of discrimination due to gender nonconforming appearance to their complaint, and/or take the opportunity for future litigation on its amended complaint to urge the court to accept discrimination motivated by the fact that they were women dating each other as a form of gender nonconformity discrimination actionable under Title IX.

Videckis v. Pepperdine University, 2015 WL 1735191 (C.D. Cal. Apr. 15, 2015).

Monday, April 20, 2015

Utica College Selective Deploys Title IX Excuse

The student newspaper at Utica College apparently has a tradition of publishing a satirical issue on   April Fools Day.  This year's issue featured some off-color humor including, as described in this article, a "sexually explicit bingo game featuring derogatory remarks toward women," and a "photo depicting a woman with a beard as the school’s most eligible bachelorette."

I know, yuck. But when I heard that the college president censored the issue because of concern for "Title IX litigation" I have to say, it sounded to me like another case of using the statute as an excuse to justify an unpopular decision.  To bring a Title IX lawsuit, a plaintiff has to challenge harassment that is so "severe or pervasive" that it interferes with the plaintiff's ability to get an education. Two offensive pages in the student newspaper are nowhere close to that standard.  I have no opinion on whether the paper should have been censored, but I object to the "Title IX made us do it" excuse, which already gets plenty of play when college athletic departments cut men's teams.  Title IX does not micromanage institution's decisions in that context, and it does not micromanage their reactions to the student paper either. Censor or don't censor, but don't misrepresent the scope of Title IX as enabling a lawsuit over everything that causes offense.  The statute has enough haters already. 

Moreover, it appears that Utica's concern over Title IX litigation is limited to the student paper. At a school where women make up over 56% of the student body, only 39% of athletic opportunities are in women's sports.  That's a 17 percentage point disparity and among the most egregious I've seen in present day.  If Utica College is really so litigation risk adverse, perhaps in addition to censoring the paper, it also ought to add a couple more women's teams.

Wednesday, April 15, 2015

Another female coach terminated: University of Delaware

In the wake of similar stories out of Duluth, Iowa, and Tufts, we note that another female coach has been terminated this year, this time by the University of Delaware. 

Softball coach Jaime Wohlbach was reportedly fired abruptly on Monday afternoon, in the middle of her season.  According to Wolhbach,  she was told at the time that she "ran a hostile environment" for her players, which she disputes and points out that she had not received any indication from her supervisor that players had complained or were unhappy.

Considering public comments Wohlbach has since made, it appears that an alternative possible explanation for her termination is that it is the culmination of an ongoing conflict with her supervisor, associate athletic director Joe Shirley, whom Wolhbach accuses of micromanaging her team and giving her an unwarranted poor performance evaluation. Given that Wohlbach apparently reported him to human resources for "bullying," it seems possible that her termination is retaliation for her complaint.  

It remains to be seen whether Wohlbach will take any legal action invoking Title IX. It is certainly possible that the "bullying" she complained of targeted her because she is a woman and/or because she coaches a woman's team.  Additionally, if the university had actually received complaints about the coach's "hostility" towards her players, the fact that its response to those complaints was to immediately terminate the coach could reflect a sexist double standard, if it is the case that Delaware would have permit male coaches with more leeway in that situation, such as an opportunity to address or explain the complaints.

The Title IX angle is speculation on my part.  But since we have seen other examples of similar bias against women coaches, including the very recent examples noted above, it is not far fetched to consider the possibility of sexism underlying this case as well.