The cost of Title IX and backlash rhetoric

In talking about the repercussions of Title IX, a common statement is that the ultimate price of non-compliance is the revocation of federal funds. Quickly it is noted that this has never happened. No school has ever been punished by the Office of Civil Rights by having their federal funding pulled.

Perhaps this is obvious--but there are other costs to non-compliance. The fact that federal funding has not been revoked does not mean that schools do not pay for their mistakes and ignorance--willful or not.  This is an important reminder as we continue to exist in a time of uncertainty in regards to the enforcement of the law and continues on our theme of recent weeks: head to the courts.

We have, over the years, discussed the many settlements and jury verdicts that have cost schools hundreds of thousands, if not millions, of dollars. These are cases that have addressed retaliation against female coaches and administrators along with advocates of women's sports, as well as discrimination against transgender students. There are too many cases to link to here but examples have come from University of Iowa, Fresno State, Florida Gulf Coast, and several high schools that have been found to have discriminated against transgender students.

This post focuses on the costs schools incur when they choose to fight Title IX cases in court. How to proceed with legal action is always a literal cost-benefit analysis. I have been seeing more media attention being paid to these costs. The impetus for this post was an article about the pending case against Kent State University in Ohio: Kent State Budgeting over $600,000 for Kesterson Title IX Lawsuit. And then there was one about Iowa State which has "spent more then $120,000 on three Title IX lawsuits." Baylor, still in the midst of its sexual assault scandal has settled one case, but continues to fight in court the others it is facing.

Last week it asked a court to throw out a lawsuit from one of 17 plaintiffs suing the school. How much Baylor has spent in court thus far is not information I could find, but it must be considerable given the number of cases. It remains to be seen how hard they intend to fight each of the five other lawsuits involving the rest of the plaintiffs and how much money they will devote to what appear at this point to be losing battles--if not in court, then certainly in the realm of public relations.

The Kent State case, which I wrote about initially in 2016 and involves the alleged cover-up of an assault by a coach who is also the alleged perpetrator's mother, is currently in the discovery stage. The $600,000 figure cited in the headline is based on the total budgeted thus far since the lawsuit began.

We have not written abut Iowa State where only two of the three cases mentioned in the headline are still pending. (A judge dismissed one last week.) But one case is from a student  who was raped in a fraternity and who is accusing the university of deliberate indifference because administrators knew about the prevalence of sexual assault within the Greek system. The second is a lawsuit brought by the former Title IX coordinator who says the university prevented her from doing her job effectively and also engaged in patterns of racial discrimination putting women of color, like herself, in visible positions of leadership but not actually listening to them. I am especially interested in the latter case and how the intersectional discrimination this former employee faced will be discussed and considered by the court should it get that far.

Returning to the original topic though regarding money schools spend on lawsuits: costs matter because we should be paying attention to how much money schools are spending on lawsuits, especially schools--like Baylor--which have obvious patterns of violations and indifference and denial. But these public reports and interest about where the money is coming from and just how much of it is being spent can also have a deleterious effect.

They can contribute to the backlash against enforcement of the law, especially in a moment where how sexual assault on campus should be handled and how it will be addressed going forward is a very large uncertainty. We have already seen considerable backlash from a vocal group of accused men that has disproportionately taken up the public discussion of campus sexual assault. I worry that the "how much is school X spending" could have similar effects, especially when the school is public and thus taxpayers are implicitly called to action with these headlines and reports.

What differs is that schools have to address a lawsuit whether by fighting it or settling. But public opinion matters and it matters a lot when Title IX enforcement is in its current precarious situation.

Updates

University of Florida:
The student hearing of football player Antonio Callaway went as predicted. The outside arbiter found him not guilty of sexual misconduct.The victim, protesting the use of arbiter who is an alum and contributes money to the football program, boycotted the hearing.
It is unclear whether the victim plans  to take any additional action. Callaway is in action this Saturday against our local team, the University of Massachusetts. Interestingly, five of his teammates are not. They have been benched for various offenses including shooting BB guns in the residence halls and fighting during practice. Team culture...
One important clarification about this case. The media I read prior to my initial posting implied that using an outside arbiter (something I suggested might need review as a legitimate procedure for handling cases), was a common practice at UF. In fact, it is not. This was the first time UF had gone this route. This is eerily similar to Erika Kinsman's case at Florida State where a retired judge was brought in to conduct Jameis Winston's hearing and found him not responsible for sexual misconduct.

Kent State
The plaintiff who filed a lawsuit against the school in February 2016 alleging the school violated Title IX in the handling of her report of rape by her softball coach's son, has a filed a second lawsuit. This one is related to the university's failure to provide documents, including personnel records and student reviews of the softball coach, needed for the case. A judge has ordered this lawsuit to mediation. KSU has said the records requests from the plaintiff lack merit and specificity. It seems they are going down the dig-in-our-heels route.


California bill:
The bill initially proposed by state legislator Ricardo Lara has been amended after intense backlash from conservative religious organizations and schools. The initial attempt by Lara was to prevent these schools from discriminating against LGBT students by denying them exemptions. He changed the bill to mandate that religious colleges with exemptions reveal that fact (to whom or how is unclear based on media coverage) and that they report to the state when a student is expelled for violations of morality codes.
The bill and the ensuing controversy was mentioned in a recent Atlantic piece about the ongoing tensions between religious institutions, LGBT discrimination, and government funding of education.

The transfers issue:
Indiana State University took one day to dismiss from its football team a transfer from after they became aware of his alleged involvement in a sexual assault when he was at the University of Kansas. Though I remain suspect about the exchange of information that occurs in the transfer process, it does seem like ISU acted quickly. Perhaps it was just because a civil lawsuit against the player has been announced and ISU does not want to get caught up in the whole thing. In short, the decision was not very proactive, but it also was not as reactive (i.e., let's wait to see what happens) as we have seen in other situations.

Kent State faces lawsuit over assault cover-up and retaliation

We have seen emerge a pattern of sexual assault cover-ups by intercollegiate football teams recently. Kent State has interrupted that pattern--not in a good way.

The university is facing  lawsuit by a former softball player who alleges that her own coach, Karen Linder, tried to cover up the assault the player reported to her. Why? Because the assailant is the coach's son, also a student-athlete. When the player did indeed report the rape, the (now former) coach retaliated in ways that forced the player to quit the team.

Though this in itself is awful, what exacerbates these feelings--along with my cynicism--is that the coach sought out her player who had not initially reported the assault but who was clearly affected by the incident. Changes in the player's behavior, socially and academically, compelled the coach to ask if she had been sexually assaulted and also ask, according to the lawsuit, if her son was the perpetrator. When she found out that he was, she was apologetic but also asked that the player not share this information with anyone else (her family already knew) and wanted her to talk to her son to try to resolve the issue.

The player tried to move on but had difficulties sharing facilities with the baseball team (of which the son was a member) and going to the coach's (and her son's) home for team events. The player also came to find out that Linder should have reported the assault to the university once she knew about it. The player initiated a complaint with the athletic director that her coach had not done this; the athletic director went directly to Linder who resigned almost immediately but did so railing against the student athlete the whole time and rallying support for herself while decrying the actions of the player and the university. This effectively created a culture on the softball team, maintained and perpetuated by the replacement coach, that was hostile to the student athlete's continued participation.

The lawsuit is against both Karen Linder and the university. The latter is not commenting at this time.