Monday, March 30, 2015

Court Dismisses Lawsuit Challenging the Clery Act Amendments

Last year we blogged about a lawsuit filed in federal court on behalf of a female student at the University of Virginia that was seeking to nullify the amendments to the Clery Act contained in the reauthorization of the Violence Against Women Act. The plaintiff had reported to her university that she had been the victim of sexual harassment and assault.  After investigating the matter, the university did not find the accused student responsible for the alleged misconduct. The student then filed a complaint with the Departments of Education and HHS, alleging that UVA violated Title IX in the handling of her complaint.  After the VAWA reauthorization, she filed this lawsuit seeking an order from the court that would compel the federal agencies to disregard the newly-amended Clery standards to the investigation of her case. She argued that these standards were weaker than Title IX's and therefore diluted its protection. Some of Clery's weaknesses, she argued, are its failure to codify a preponderance standard or a definition of consent.   

Last week, the federal court in D.C. dismissed the lawsuit based on an "erroneous interpretation" of the Clery Act amendments.  As the court correctly states, Clery and Title IX impose simultaneous, not alternative, requirements. Therefore, and as the Department of Education has since clarified, nothing in the Clery Amendments changes an institution's obligations under Title IX in any way.   The plaintiff apparently, and not unreasonably, wishes that Congress had endorsed the preponderance standard as a matter of statutory law (a stronger and potentially more lasting source of law than the Department of Education's interpretation on this issue) and that it had chosen to define consent.  Yet, Congress's failure to do this isn't actionable in a court of law.  The plaintiff is no worse off under the amended Clery than she was prior to those amendments.  While she may believe that the Clery Act amendments should have been stronger, that is a policy argument more appropriately directed at the political process.

Doe v. U.S. Dep't of Health and Human Servs., 2015 WL 1316290 (D.D.C. Mar. 24, 2015).

Friday, March 20, 2015

Sexual Assault Litigation Update

Numerous Title IX lawsuits have been filed recently, with claims stemming from incidents alleged to involve sexual harassment and sexual assault:
  • A female student has sued James Madison University for failing to adequately discipline three fellow students who sexually assaulted her during a spring break trip and then circulated a video of the incident among the student body.  She alleges that the university violated Title IX by delaying the disciplinary process for over a year before finally handing down suspensions that will not kick in until the offending students have graduated.  JMU is facing an investigation by the Department of Education into this same matter, as we have earlier noted
  • A male graduate of Boston College has sued his alma mater for disciplining him for sexual assault while he was a student.  He alleges that the institution did not provide a fair hearing before finding him responsible for sexual assault and suspending him for three semesters.  The student eventually graduated and unsuccessfully prevailed upon the Boston College to reexamine his case.  The lawsuit seeks $3 million in damages.  
  • Parents of a fifth-grade student in Grand Rapids, Michigan, have sued sued the school district for suspending the boy for ten days for sexual harassing comments and gestures that he allegedly made, and for expelling him after he allegedly touched a female student inappropriately.  The lawsuit alleges that school officials violated the boys' right to due process by not determining in either incident whether the accusations were accurate before taking disciplinary measures against him.  
  • A Harvard University professor has sued the institution, alleging that she was denied tenure in retaliation for criticizing its handing of sexual assaults. The plaintiff, anthropology professor Kimberly Theidon, alleges that she was warned that speaking out would hurt her during tenure review; she also claims that she quickly turned from someone who was assured tenure into someone being denied tenure once she began advocating for sexual assault victims. 
  • A male student alleged to have sexually assaulted a female graduate student at Stony Brook University, has sued his accuser for defamation and seeks damages of $10 million.  We have already blogged about the accuser's suit against Stony Brook, in which she alleges that the university mishandled her case before finding him not responsible.  She has also sued him directly.

Friday, March 13, 2015

Bathroom policies that make sense

It is always nice to Friday blog a positive story.

Pierce College, a community college in the state of Washington, issued a memo to the college community this week about the use of bathrooms by transgender individuals. My cursory Google news search did not reveal any particular incident, though what I suspect has happened is that trans* and gender queer people's use of bathrooms on campus is upsetting some individuals who have turned to the administration for redress.

This was the response from the college's Title IX coordinator (also the VP for human resources):
Recently we have received questions from members of the college community at both Fort Steilacoom and Puyallup about transgender individuals and restroom use. The short answer is that every member of the Pierce College community is free to use whichever restroom aligns with their gender identity. Pierce College is also in the process of identifying gender neutral restrooms on both campuses, which will be available for anyone to use, regardless of gender identity or expression.
It is not up to other people to determine whether or not a given person is in the “right” restroom. If an individual chooses to enter that restroom, it is the right restroom for them. (In the rare event that they entered the restroom by mistake, they will certainly exit upon realizing the mistake without any outside help.)

She does go into the long answer which involves state and federal laws and includes some links for additional information, including one about the application of Title IX protections to transgender students. 
The response reminded me a little of this photo from the Transcending Gender Project that I have seen around social media in the past few weeks. 

Of course as we have seen in the several cases of high school athletic associations attempting to pass policies governing the participation of trans* athletes, bathrooms and locker rooms cause some people to grow quite agitated. There is a presumption, which I mentioned the other day, that trans* people are predatory and will engage in sexual acts with unwilling cisgender people in bathroom spaces. Thus, people who report a trans* or gender queer person using the "wrong" bathroom may feel they are being preemptive when they call security. The letter to the Pierce College community addressed this as well:
If any person is behaving dangerously or actively harassing others in a restroom or any other Pierce College space, please contact Campus Safety. The mere presence of someone using the restroom does not qualify as a dangerous or harassing activity and should not be cause for alarm or complaint.

The End.

Thursday, March 12, 2015

Ohio State Hockey Coach Resigns Over Harassment Complaints

Ohio State's women's hockey coach has resigned in lieu of being fired for misconduct that included sexual harassment of his players.  The university reportedly commenced investigating Nate Handrahan last November after receiving an anonymous complaint from a teacher or instructor that one of his players had shared in class the fact that he made sexually explicit comments to the team.  In the course of investigating the complaint, the university received verifying testimony of other witnesses, who attested not only to his use of sexual language and innuendo (such as for example telling them in practice to "get horny for the puck") but also his verbally abusive and intimidating style.  (The university's report also concluded that he had engaged in retaliation against his players as well, though the news account I read did not go into details on this.)

Earlier this year, Kris blogged about the dismissal of UNH's women's hockey coach over an incident in which he assaulted a player by pulling her to the bench by her shirt, causing her to fall.  And I can't help but ask about this case the same question Kris asked then: would this have happened in men's sports?  Notwithstanding prominent counterexamples, such as the dismissal of Rutgers men's basketball coach for abusive conduct towards his players, there is still a lot of tolerance for, and even expectation of, an aggressive style among coaches of men's teams.  At the same time, cultural stereotypes about female athletes suggest that aggression is not appropriate for them. That puts coaches of women's teams -- men and women alike -- in something of a double bind as they receive mixed messages from society (and possibly from the culture of their athletic department): be aggressive, to prove yourself as a coach.  But don't be aggressive towards female players, because women are different.  The fact of this double-bind is not only dangerous for coaches, but for players as well.  Not only because coaches may wrongly infer that abusive conduct is appropriate, but also because when the coach is dismissed for such misconduct, that in itself further diminishes the athletes' experience by depriving them of continuity in coaching.

By no means do I point out this double standard to condone the actions of Coach Handrahan here.  Nor do I suggest that Ohio State in particular is practicing a double standard.  (In fact, Ohio State's similar response to the band director situation last fall suggests that Ohio State is consistent when it comes to addressing sexual harassment in its programs.)  But in a larger sense, this case helps illustrate the importance of being consistent across men's and women's programs when it comes to tolerating harassment, abuse, and bullying by coaches. Aggression that crosses the line into that territory should never be mistaken for a coach's job requirement, regardless of the sex of the athletes he or she is coaching.

Wednesday, March 11, 2015

OTL covers young transgender athletes

Shows like Outside the Lines give me a little more faith in ESPN. This week's episode (a piece of which can be found here) profiled two transgender athletes and discussed more broadly the issue of trans athletes in youth and high school sports.

The episode focused on two transgender students. The first, Leo, is a trans boy in Maine who recently came out and received permission to swim on the boys' team at his high school. Maine is one of the 33 states that has a policy addressing the participation of transgender athletes in high school sports. They passed their policy in 2013 and Leo took his situation to the high school athletic association which approved his participation on the boys' team last fall. Leo's experience, based on his own telling and interviews with his teammates and coach, was positive. What was striking about his interview was the reminder to all of us that this issue is about more than just the right to participate (not to diminish the very important civil rights component here). It is about what sports can provide participants:
"I think I can go through a lot more more confidently than if I hadn't [had this experience]."

Also important to note is that Leo's teammates and coach are very supportive of his participation. The three teammates OTL interviewed called him brave.

The other story, of Shay, is a sharp contrast to Leo's because she lives in Montana which has been unable to successfully pass a policy regarding transgender participation. I wrote about the policy proposal in January. That policy was withdrawn, according to OTL, because the Montana High School Association did not feel it had enough votes (it needed a 2/3 majority among its 120 members) to pass. This has left Shay, who competed in both track and basketball as a middle schooler, unable to play high school sports. Shay's story is particularly sad because she has struggled throughout her transition and sports offered her an outlet.

OTL interviewed members of conservative Christian organizations that opposed the policy. (Not all of these interviews made it to the above clip.) So-called privacy concerns arose again in this conversation. This argument continues to privilege the the privacy of cisgender children over that of transgender children. This was especially interesting in Shay's case because she was not out when competing in middle school and would change in bathroom stalls to protect her identity--and I would argue, her personal safety.

This leads to another issue that opponents have: safety in locker rooms. This is an argument similar to one that has been made against gays and lesbians, which assumes an innate predatory instinct (recall the campaign against gay Boy Scouts). Safety in a locker room is the result of the culture of that locker room, regardless of one's sexuality, gender identity, hormones, chromosomes, or genitals. The safety of gay and transgender people is far less secure than their heterosexual and cisgender peers.

Another conservative safety argument is that mixed gender locker rooms--their term, which  negates the gender identity of the transgender children--will result in undesirable shenanigans of a sexual nature. Let's not forget the many, many, many incidents of hazing and bullying in locker rooms that are perpetuated among cisgender people of the same sex and involve acts of genital touching and penetration. 

These are all straw man arguments, which one can easily see through when the opponents refer to transgender children using their biological identity and encourage them to be comfortable being themselves and not hiding who they are; what they mean is not hiding their biological sex. The implication is that these children are being both deceptive and unnatural--that is the foundation of their opposition, not safety concerns.

The rationale behind why youth and interscholastic sports should exist in our culture includes the belief that they are character-building, and teach leadership, cooperation, and sportspersonship. And though we can poke many holes in this Great Sports Myth, there are still many children who benefit a great deal from sports participation at a young age. To deny these experiences to any child is an injustice and to deny them by blaming and labeling and stereotyping them is unconscionable.

Monday, March 09, 2015

"Co-Champions" in Connecticut Raising Title IX Concerns

Champion.  Noun. "A person who has defeated all opponents in a competition or series of competitions, so as to hold first place."   Well -- usually.  In Connecticut yesterday, two girls' ice hockey teams squared off to determine the state champion.  After three periods of regulation play, the score between the team from Simsbury and the team from East Catholic/Glastonbury/South Windsor was tied 2-2.  So they played a period of "sudden death" overtime, in which, if either team had scored, the game would have ended.  But no one scored.  So they played another overtime period.  Still, no one scored.  Then, as the teams geared up for a third overtime period, officials told the teams to line up on blue lines so they could be awarded co-champions. 

As ESPN-W reports, the decision not to let the game continue until there was a winner caused confusion, surprise and disappointment.  It not only departed from the expectations that athletes generally have about the ending of a championship game -- but apparently, from the rules for determining this particular championship that had been circulated to the teams ahead of time: "eight minute sudden death overtimes until the game is decided."  In addition to disappointing the players involved, the situation has also raised Title IX concerns. For one thing, there is reportedly good reason to believe that the girls' state championship game ended without a winner so that the later-scheduled boys' game, a conference championship, could begin on time. And many believe that if the situation were reversed, a boys' state championships would never have been allowed to end without a winner. 

Title IX requires that schools provide boys and girls with athletic opportunities of similar quality.  One factor of quality, as specified in the regulations, is the  scheduling of competitions.  For example, courts have determined that the practice of depriving girls of the opportunity to play games during the "prime time" (usually, weekend and evening times) violates Title IX because it demotes girls' sports to a second-class status.  The regulations also specify that girls and boys should have access to athletic facilities of equal quality.  For example, some states hold high school championships at a large premier arena, such as a state university.  If only boys' teams have access to this high level of quality (see, e.g.), that would violate Title IX.  

What happened in Connecticut yesterday could arguably violate Title IX, either as an example of unequal scheduling or as an example of unequal access to facilities.  If Connecticut schools schedule the boys state championship at a time of day, e.g., evening, when the game can be played to its conclusion, but the girls, scheduled during the day, have to stop early to accommodate the next game, then there is inequity in the scheduling of competitions.  Similarly, if the boys' state championship is held at a rink that does allow adequate time for the game, but the girls' state championship is hosted at rink that is not able to provide adequate time, the latter rink is a facility of inferior quality.  

Yesterday's championship could have either been held at a different location---one that could accommodate a complete game---or it could have been allocated a different time period--i.e., a sufficiently long enough one to allow the game to conclude.  If it is not possible to make those kinds of accommodations to both boys' and girls' championship games in the same year, schools could agree to provide the better facility/schedule to the girls' championship one year and to the boys' the next. Alternatively, the schools could have imposed a rule that shortens the time it takes to play a championship game --boys' and girls' -- such as by ending it by penalty shots after a certain number of evenly-matched overtimes, so that they both fit in the time and place allotted to them.  Title IX does not mandate how schools provide equal treatment to girls' and boys' athletic programs, only that they do.

Hopefully the schools in Connecticut that participate in girls' hockey learn from yesterday's mistake and ensure that future girls' championships receive the equal respect they deserve and the equal treatment the law requires. 

Sunday, March 08, 2015

Lots happening on women in coaching and leadership

I have been meaning to write this post for several weeks now and it seems appropriate to do so--finally--on International Women's Day.

There has been a fairly significant (relatively speaking) media attention given to the issue of women coaching women's sports in the past few weeks. Both Erin and I have been speaking to the press and on radio (here, here, and here) answering questions about why there is a lack of female coaches, the specific situations at Iowa and Minnesota Duluth, and if Title IX can address this issue.

The statistics have been stated: the percentage of women coaching women's teams at the intercollegiate level has dropped from approximately 90% when Title IX was passed to its present percentage of approximately 40%; there has been no comparable (or rather none at all) rise in women coaching men's sports. While we appreciate the coverage this issue has received, these are not new numbers. This is not a new problem.

The answer to the why now question is most likely due to these high-profile cases coming in quick succession. It is important to note though that these are high profile cases because the coaches involved have challenged their firings. We have seen coaches file complaints and lawsuits in the past (Fresno State, FGCU are just two examples) after being fired. The frame in these cases though has been one of retaliation. Most of those coaches felt they were being retaliated against for complaining about and challenging the treatment of their women's programs. Title IX's protection against retaliation is clear and several of these cases resulted in large jury awards. They still, however, lost their jobs and many have not gotten back into coaching, in part because the situation for female coaches is so dismal.

This has been the focus of the current debate: the culture in which female coaches work. This is an important conversation (also not new but seemingly now more public). It has also inspired a closer look at programs. The Tucker Center released its women coaches report card recently. Miller and her advocates have spoken about the lack of athletic department support for women's ice hockey. At Iowa, former field hockey coach Beth Beglin compiled a very thorough and quite disheartening report about the state of the athletic department since the women's and men's departments merged in 2000--and more specifically what has happened since current AD Gary Barta took over in 2006. Beglin notes that in this time 83% of female head coaches have been fired. In the same time only 11% of male head coaches have been let go.

Last week the Institute for Diversity and Ethics in Sports released its annual report card about the state of gender and racial equality in intercollegiate sports. From the report summary: College sport received a C+ for racial hiring practices by earning 78.5 points, down from 82.3 points in the 2013 report card. College sport received a C- for gender hiring practices by earning 69.4 points down from 75.9 points.

Lost in the recent conversations have been discussions of race. All of the women we have been talking about are white women. The picture of the female head coach is most often of a white woman. This weekend, discussing stereotypical images of female leaders in sports with friends, I rather uncritically presented a white woman as the norm. And though the statistics certainly bear out this picture, the absence is in dire need of being addressed whenever we are discussing women in leadership positions. The norm has to be challenged.

Friday, February 27, 2015

Government Files Brief in Support of Transgender Student's Title IX Lawsuit

The U.S. Department of Education, acting through the Department of Justice, has filed a brief in support of a transgender student's lawsuit against his Michigan school district.  The student, a sixth grader in the Wyandotte public schools, alleged that school officials refused to refer to him by his male name and pronoun or allow him access to the boys' bathroom, and did not intervene to protect him from the harassment of his peers. 

The government's brief (officially a "statement of interest" as the government is not a formal party to the litigation) argues that Title IX is applicable to his case.  Though the statute by its terms limited to sex discrimination, the government urges the court to interpret sex discrimination to include discrimination on the basis of gender nonconformity, gender identity, and transgender status, as other courts and federal agencies have done in applying sex discrimination provisions of other antidiscrimination statutes such as Title VII. Importantly, the government emphasizes that any of these grounds may be the basis of a sex discrimination claim.  This is important because gender nonconformity, while the least controversial and most precedent-supported theory of sex discrimination, without more, would likely provide this plaintiff incomplete relief.  Specifically, it may not support his right to use the male restroom -- because when the school refuses to treat him like the other boys in that regard, they are discriminating against his status as a transgender person or someone with a transgender gender identity, not because he doesn't dress or act like a stereotypical member of his natal sex (female). Thus, it would be most helpful to this plaintiff -- and other transgender plaintiffs future -- for the court to endorse the government's broader interpretation of sex discrimination, one which would allow Title IX to serve the basis for challenging discrimination targeting a student's gender identity or transgender status. 

Thursday, February 26, 2015

NYC Public Schools Violate Title IX With Athletic Offerings

The Department of Education's Office for Civil Rights announced this week that it has entered into an agreement obligating the New York City public schools to come into compliance after finding that the country's largest school system violated Title IX by depriving athletic opportunities to girls.  OCR had been investigating the school system in response to a 2010 complaint filed by the National Women's Law Center.

OCR found that the New York City Department of Education could not satisfy any one of the prongs in the familiar three-part test for measuring equity in the distribution of athletic opportunities.  The test allows schools to demonstrate compliance evidence of either (a)  a distribution of opportunities proportionate to the percentage of students of each sex; (b) history and continuing program expansion for the underrepresented sex (here, girls); or (c) providing enough athletic opportunities to satisfy the interests of the underrepresented sex. 

In examining the first prong, OCR found that NYC public high schools would have had to provided 3682 additional female athletic opportunities to achieve proportionality.  The second prong was also out of reach, as it was actually the over-represented sex that benefited more from program expansion, netting 125 more boys' teams that girls' teams over the time period under investigation. The Department also denied more requests to add girls' teams than boys' over the relevant period.

Finally, the Department could not satisfy the third prong, as it was unable to demonstrate that it even examined the interest level of its female students at all, let alone by any of the methods that OCR considers like surveys or participation data in non-scholastic athletics.  Moreover, the fact that the Department had denied requests from school principals seeking to add girls teams in sports like volleyball, softball, basketball, soccer, tennis, cross-country, bowling, golf, and swimming served to indicate unmet interest.

In response to this findings of noncompliance, the Department has now entered into an agreement obligating them to assess female students' athletic interests by multiple means including but not limited to surveys, and to add teams as appropriate in response to evidence of unmet interest. It must also develop a procedure by which students can formally request the addition of teams and provide Title IX training to athletic directors.

Monday, February 23, 2015

More Campus Sexual Assault Litigation Updates

Title IX lawsuits related to campus sexual assault remain in the news:
  • University of Colorado-Boulder has settled a lawsuit with a student who claimed the university discriminated against him in violation of Title IX in the process of finding him responsible for the sexual assault of a fellow student in 2013.  The university will reportedly pay the student $15,000, and the student, in turn, has promised to withdraw. Per the terms of the settlement, if asked for a reference the University will not disclose anything other than the fact that he was found responsible for two violations of the code of conduct, and that prior to his withdrawal he was in good academic standing. The university's general counsel referred to the settlement as a "business decision" to avoid the high cost of litigation, while the plaintiff's attorney was happy that the settlement preserved her client's anonymity in connection with the "false accusations" of assault.
  • A fraternity at Wesleyan University has sued the university challenging its requirement that residential fraternities become coed over the next three years; a policy change in the wake of (and presumably responsive to) accusations of sexual assault that have taken place at fraternity houses. The lawsuit, filed by the local chapter of Delta Kappa Epsilon, one of the two residential fraternities affected by the new policy, claim that it singles out male organizations in violation of Title IX.  Reports elsewhere suggest that the reason Wesleyan's only sorority was not affected by the policy is because they do not maintain on-campus houses -- a fact that could make it difficult for the DKE plaintiffs to sustain their argument that Wesleyan's policy is differentiating based on sex.
  • A female student has sued the University of New Mexico alleging that the university responded with deliberate indifference to her report that she had been drugged and sexually assaulted by two football players while other players watched and recorded it on video.  She claims that the university conducted a lackluster investigation in order to shield the players from  disciplinary action, including by ignoring witnesses and failing to consider evidence. The accused students were temporarily suspended from the football team during the off-season, but were reinstated prior to the conclusion of the investigation. Meanwhile, the plaintiff alleges that she was harassed and re-victimized as football players continued to share video of her from the night of the assault.  She suffered emotionally as a result, and was unable to attend classes. She eventually lost her academic scholarship, forcing her to withdraw from UNM and enroll at a school with higher tuition. Her lawsuit seeks damages to compensate her for those losses.
  • A female graduate student has sued the University of Stony Brook (part of the SUNY system) alleging that the university violated Title IX in the hands-off manner it handled the disciplinary process of the student she accused of assaulting her in his dorm room.  University officials conducted an investigation but when it came to the hearing required the plaintiff to present her own case against the accused student after only providing her a week to prepare her case. The accused student was found not responsible for assault because it appeared to the disciplinary committee that the sexual contact between them was consensual.

Wednesday, February 18, 2015

Another Litigation Roundup

Here are some updates in various cases where Title IX is being used to challenge sexual harassment and sexual assault in high schools:
  • In Michigan, a former student has filed a Title IX lawsuit against the Traverse City Area Public Schools, alleging that the school district was indifferent to harassment and retaliation he faced after reporting that a teacher had engaged him in oral sex and had been sending him sexually explicit text messages.  (The teacher was later criminally convicted.) 
  • In a similar matter, a federal judge in Pennsylvania refused to dismiss a mother's claim against the Susquehanna Township School District challenging the hostile environment her daughter faced after police arrested the principal for having sex with her daughter, a 16-year-old student. (The principal has plead guilty.) 
  •  In yet another matter involving teacher-student harassment, a court refused to dismiss a student's case against the Seattle School District where the student alleged that she reported the teacher's harassing comments, stares, and touches to the principal, and that the principal did not follow up in any meaningful way, allowing the teacher's conduct to escalate to more egregious physical contact.  R.P. v. Seattle Sch. Dist., 2015 WL 418001 (D. Wash. Jan. 30, 2015).
  • The State Board of Education in Hawaii will have to continue to defend a lawsuit arising out of the repeated instances of rape of a female special-needs high school student by one of her male special-needs peers. In rejecting the state's motion to dismiss, the court agreed that the plaintiff adequately alleged that school officials failed to supervise the male student even though they were on notice of the fact that he had attacked the female student off campus, and that the lack of supervision provided the male student the opportunity to rape the female student in a coed bathroom on campus.  Kaukaho v. State Bd. of Educ., 2015 WL 470230 (D. Ha. Feb. 3, 2015).

Monday, February 16, 2015

Northwestern Professor's Title IX and Defamation Suits Dismissed

Earlier this month, a federal district court in Illinois dismissed claims filed by a Northwestern philosophy professor against Northwestern and a student who had accused him of sexual assault. 
The court dismissed Ludlow's Title IX claims against Northwestern after concluding that he had not sufficiently alleged discriminatory motive. Ludlow's complaint criticized the procedure by which the university conducted the investigation of the graduate student's complaint that he had sexually assaulted her in the context of an otherwise-consensual romantic relationship. He also challenged the university's conclusion--having found insufficient evidence to substantiate the graduate student's allegations--that Ludlow was guilty of capitalizing on an equal power dynamic, on the grounds that Northwestern had no policy against such relationships.  Yet, the court refused to infer from the fact of these allegations alone that Northwestern could have violated the professor's rights under Title IX, since the complaint contained no allegation that Northwestern officials were motivated by bias against Ludlow on the basis of sex.

The court also dismissed Ludlow's claims that the graduate student had defamed him when she directed her complaint against Ludlow to Northwestern's general counsel. Defamation is a tort that renders a defendant liable for making false statements against the plaintiff.  However, some statements are subject to a qualified privilege, meaning that the defendant cannot be liable for them, even if they prove false, unless the plaintiff shows that the defendant was acting maliciously when making the statement. The court determined that the graduate student's statement is subject to the qualified privilege because it is a statement made to an employer about alleged employee misconduct. The court recognized that the privilege is justified by the strong public interest in having misconduct reported. Accordingly, the court examined Ludlow's complaint against the graduate for evidence of malicious intent.  However, all Ludlow alleged was that her statement was untrue, and the court refused to infer malice from that alone.

(The court also dismissed a second charge against the graduate student for invading his privacy by presenting him in a false light, because the situation did warrant making an exception to the requirement that a false light claim involve the "public presentation" of private matters--a requirement not satisfied by the graduate student's communication with the university counsel.) 

When we blogged about this case while it was pending, we noted concern for the possibility that defamation lawsuits could potentially have a chilling effect on valid reports of sexual assault. The court's decision appropriately addresses that concern by recognizing the privilege afforded to statements made in the context of such complaints. While a person who makes a false report of sexual assault for malicious reasons like retaliation or spite can still be held accountable, the law does not impose liability every time a sexual assault report does not prove true. This limitation provides important protection for erstwhile whistleblowers, who may actually be telling the truth, yet fear the possibility of not being able to marshal enough evidence to support their claim, as well as in cases where the accuser turns out to be mistaken because of memory lapse or trauma.  In such cases, the accusation will not stand, but nor will it give rise to liability on the accuser's part.

Decision: Ludlow v. Northwestern Univ., 2015 WL 508431 (N.D. Ill., Feb. 5, 2015).

Tuesday, February 10, 2015

Statistics: Surprising and non-existent

A short, but important editorial from this past weekend's New York Times about the statistics on campus sexual assault covering two angles.

The first is one with which many are familiar: we don't know the rate of campus sexual assault. The one in five statistic is based on a small sample size. The unreliability of that number is fodder for those who believe the problem is not as serious as the recent campus activists have made it out to be. It has also been suggested that the number is inflated because women are "crying rape" when they regret their sexual encounters and/or have a grudge against a fellow student and are using the campus judicial process to get him (usually this is in reference to heterosexual encounters when the man is the accused and the woman the victim) expelled.

We need better numbers to stop this discourse because, as those of us involved in the study of and activism around this issue know, the number is likely higher because of underreporting. The many stories that have emerged from the movement illustrate why people do not report sexual assaults. The questions about why victims don't just go to the police ignore both the poor treatment victims receive in the system including the difficulty in prosecuting rape cases. But as we have unfortunately seen, the campus judicial system is often failing these victims, too. The movement may be bringing these injustices to light, but it is hard to say if reporting will increase or decrease because of it. I would like to believe that more people would come forward to report sexual assault, but it likely depends on the campus environment and the history of the institution in its handling of cases. 

This brings me to the second angle of the editorial: the reporting of sexual assaults that colleges and universities are required to do under the Clery Act. All campus crimes must be reported but it seems that sexual assaults have been the most controversial because schools have been underreporting them. Some of the nearly 100 schools under investigation for Title IX violations in relation to the handling of sexual assault are also facing Clery Act violations.

Here is what I did not know about Clery Act reporting that the editorial shed light on:
"When the Department of Education audits universities for possible Clery Act violations, reports of sexual assault rise dramatically, by approximately 44 percent; when the period of scrutiny ends, reporting rates fall right back to pre-audit levels."

This was evidence of a study that looked at data from 2001-2012 during which time the government conducted over 30 Clery Act audits.

This is disturbing. There have long been calls for putting some teeth into Title IX as it applies to sexual assault and Assistant Secretary of Civil Rights in the Department of Education Catherine Lhamon promised that the department would indeed pull federal funding from offending schools. Tht has not happened yet.

Clery Act violators, though, already incur fines. Unfortunately they do not seem, based on the above data, to be much of a deterrent. This is from a 2014 Inside Higher Ed article about Clery Act violators and their punishments:
"In spite of that increased scrutiny, colleges facing penalties have continued to be successful in getting their Clery Act fines reduced, according to data provided by the Education Department.
Far more often than not, colleges are able to either persuade officials to lower the fines or enter into a settlement through which they pay a lower amount than the department had originally proposed. Of the 21 Clery Act fines that have actually been imposed on colleges since 2000, 17 have been lower than the department initially proposed, the agency’s data show.
Among those institutions successful in winning a discount on their fines, the average reduction was more than 25 percent and usually represented tens of thousands of dollars. The largest discount, proportionally speaking, was a $110,000 fine that the department proposed against Pittsburgh Technical Institute in 2005; the for-profit institution based in Oakdale, Pa., was ultimately fined half that amount, $55,000, in 2007."

This is a bad--as in ineffective--precedent and does not bode well for putting some force behind Title IX compliance either. 

Friday, February 06, 2015

Fired Tufts Coach Files Complaint

Though it's no longer truly "news," I recently learned that former men's tennis coach Jamie Kenney filed a Title IX complaint with the Department of Education back in December alleging that her termination from the position was illegally motivated by gender stereotypes and double standards. According to the complaint (which I have read but do not have a link for) Coach Kenney suspended two team captains for violating the team's drinking policy. As part of their suspension, a decision Kenney had cleared with the Athletic Director, the players were banned from attending the conference championship in any capacity.  The players attended anyway in defiance of their coach, so Coach Kenney confronted them, as well as a (male) assistant coach who had been in on their plan, to insist that they leave.  In response, the rest of the team rallied around the suspended players by enlisting their parents to complain to the university president. The Athletic Director then withdrew his support for the coach's decision, and a representative from human resources confronted Coach Kenney with the parents' complaints, which had been forwarded by the President, as well as the negative evaluations that the students had filled out in the wake of (and in obvious reaction to) her unpopular disciplinary decision.  Eventually, after raising gender equity concerns about the way she was being treated, Coach Kenney received notice on July 1 that she was terminated from her position.

The complaint alleges that the university's response to the complaints about Coach Kenney's decision to discipline her players was discriminatory on the basis of gender, in that male coaches are afforded greater freedom to engage in coaching methods that female coaches are scrutinized for.  Additionally, she alleges that Tufts tends to ignore complaints made against male coaches and to support male coaches' decisions to discipline their players.

I am hopeful that OCR will investigate this complaint and expose some of the under-examined obstacles facing female coaches in general (see also Kris's post from yesterday about the Iowa complaint), and female coaches of male athletes in particular.  As the complaint points out, gender stereotypes create the expectation that women, including female coaches, embody a "caretaker" role.  When they step out of that role and into a stereotypically male"leadership" role, they are often penalized for it in overt and subtle ways.  This puts female coaches in a double bind, because the leadership model is generally more valued that the caretaker model, and may be particularly so when the athletes in question are male. It is no wonder that women constitute a mere 2-3% of the head coaches of men's teams, while men, in contrast, are the majority of coaches of men's teams. This matter, therefore, provides OCR with a rare opportunity to address a concrete, individualized example of conduct that contributes to a widespread problem.