Fraternity Rape Title IX Claim Against Brown Survives Motion to Dismiss

The federal district court in Rhode Island recently denied Brown University's motion to dismiss a Title IX claim in which a female student alleges Brown is liable for damages as a result of the university's response to her having being drugged and raped at a fraternity. According to the plaintiff,  called Jane Doe in the case, one student ("Smith") mixed her drink; later on, another student ("Jones") had sex with her while she was incapacitated. The next morning, Doe received medical treatment at the university health center. At Doe's request, the health center sent out samples of her blood and urine for drug testing at the local hospital, which was how she discovered she had been dosed with the date-rape drug, GHB. The university initiated three disciplinary proceedings: against Jones, Smith, and the university's local chapter of the Phi Kappa Psi fraternity. But when university-retained medical expert concurred with Smith's expert that the hospital's drug testing had been faulty, the university responded by dropping the charges against Smith and the fraternity. (Jones had already been found "not responsible," and Doe's appeal was denied.)

Doe's subsequent lawsuit against Brown included several claims that the district court dismissed in response to a motion by Brown.  But the court retained the Title IX claim and allowed it proceed to the discovery phase of litigation because Doe's allegations, if proven, could be sufficient to convince a jury that Brown is liable under Title IX.  Specifically, Doe alleged that Brown was responsible for the fact that the hospital's drug test was later undermined because university officials continued to send the blood and urine samples "to a laboratory incapable of conducting definitive tests for date-rape drugs – despite Brown's knowledge that other female students reported being drugged at campus events." This allegedly allowed Brown to frame the decision to drop the case against Smith as a matter of insufficient evidence, and hide the fact that it was actually doing it as a favor for Smith's father, a university trustee.  Doe alleges that Brown's actions exonerating the fraternity and the two students led to harassment from other students, including a leaflet campaign by the fraternity, that the university did not address.  

Universities often succeed at dismissing Title IX claims like this one because the standard that plaintiffs must satisfy -- that the university's response amounted to deliberate indifference -- is a difficult one to meet, particularly when the university engaged in some kind of disciplinary response. I think the plaintiff succeeded here in getting over that preliminary hurdle because cover ups like the one she alleged here in favor of the trustee's son, are easy to see as "deliberate."  It will be interesting to see if the parties continue to litigate or whether they settle now that plaintiff has the opportunity to amass evidence in support of the allegations she has made.

Decision: Doe v. Brown University, 2018 WL 443504 (Jan. 16, 2018).

Alpha Chapter distributed leaflets to the University community that disclosed confidential information regarding Doe's allegations

JANE DOE, Plaintiff, v. BROWN UNIVERSITY; PHI KAPPA PSI, INC.; JOHN SMITH; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER PRESIDENT R.H.; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER SECRETARY 1; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER PRESIDENT J.P.; & PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER SECRETARY 2, Defendants., No. CV 16-562 WES, 2018 WL 443504, at *4 (D.R.I. Jan. 16, 2018)

Alpha Chapter distributed leaflets to the University community that disclosed confidential information regarding Doe's allegations

JANE DOE, Plaintiff, v. BROWN UNIVERSITY; PHI KAPPA PSI, INC.; JOHN SMITH; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER PRESIDENT R.H.; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER SECRETARY 1; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER PRESIDENT J.P.; & PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER SECRETARY 2, Defendants., No. CV 16-562 WES, 2018 WL 443504, at *4 (D.R.I. Jan. 16, 2018)

Without this evidence, according to Doe, Brown had an easier time convincing the campus community and general public that its reason for discontinuing its disciplinary process concerning Smith was a lack of evidence, and not in furtherance of a secret design to drop the case as a favor to Smith's father, a University trustee – a decision that was at least curious given that Brown officials had found in the proceedings against Alpha Chapter that Smith had spiked Doe's drink.

JANE DOE, Plaintiff, v. BROWN UNIVERSITY; PHI KAPPA PSI, INC.; JOHN SMITH; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER PRESIDENT R.H.; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER SECRETARY 1; PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER PRESIDENT J.P.; & PHI KAPPA PSI-RHODE ISLAND ALPHA CHAPTER SECRETARY 2, Defendants., No. CV 16-562 WES, 2018 WL 443504, at *4 (D.R.I. Jan. 16, 2018)

Title IX Extends to Rapes at Fraternity, Court Rules

A federal court in Kansas decided earlier this month that Kansas State University potentially violated Title IX when it failed to investigate two students' reports of having been raped while attending parties at off-campus fraternity houses. The university argued in support of its motion to dismiss two plaintiffs' separate lawsuits that the fraternity house was not a "program or activity" of the university to which Title IX applies. But the court disagreed, distinguishing a fraternity house from other non-university housing or settings on the basis of the "substantial control" the university exhibits over the fraternity. In particular, the university regulates fraternities' conduct and authorizes its parties. In fact, in this case, the university used one of the plaintiff's report of rape as grounds to penalize the fraternity for alcohol violations. Other indicia of the nexus of control include the university-hired staff members who provide service and support to fraternities and sororities, and the university's recognition of fraternities and sororities on its website as student organizations. Notably, the court reached its decision that Title IX extends to sexual misconduct taking place at off-campus fraternity houses without extending any deference to OCR's 2011 Dear Colleague Letter, which also interprets Title IX in similar fashion. So even if OCR changes or withdraws the Dear Colleague Letter, such potential future changes in OCR policy will not affect this aspect of the ruling.

These decisions are only preliminary ones that allow the cases to proceed to the discovery phase of litigation. The plaintiffs will still have to prove that the university had notice of their rapes and responded with deliberate indifference. However, it seems undisputed that each notified the university and the university did not respond at all. Maybe the university will try to appeal the lower court's decisions not to dismiss, but otherwise my prediction is that the parties settle.

The two decisions are:

Weckhorst v. Kansas State Univ., No. 16-CV-2255-JAR-GEB, 2017 WL 980456 (D. Kan. Mar. 14, 2017).

Farmer v. Kansas State Univ., No. 16-CV-2256-JAR-GEB, 2017 WL 980460 (D. Kan. Mar. 14, 2017)

Government Sides With Plaintiff in Case that Tests Title IX's Application to Off-Campus Sexual Assault

Recently, the federal government sided with two Title IX plaintiffs in ongoing litigation against Kansas State University that challenges the institution's failure to respond to reports of sexual assault committed at off-campus fraternity houses.

The federal court's eventual decision in two pending cases will address an important issues of Title IX's scope. So it is noteworthy that the Department of Justice and the Department of Education submitted amicus briefs to challenge the university's contention that its obligations under Title IX do not apply to off-campus conduct.  The government argues that when Title IX uses the word "programs" in describing the statute's reach, it includes the house and events of a school-recognized fraternity, just like it applies to other off-campus activities like study-abroad programs and extracurricular activities that are still subject to the university's control. Moreover, the government argues that the university itself claims that its fraternities are part of the university in its marketing to prospective students, and exerts the requisite "substantial control" to prevent and respond to sexual assault that occurs at fraternities, in that the accused are students who are subject to the university disciplinary process and the fraternity itself relies on the university for ongoing recognition. In fact, the university demonstrates this control by sanctioning the accused student for alcohol violations, but not rape.

Clearly the government is watching this case closely, as we are as well.

Recent sexual harassment and assault cases

A few cases of boys behaving badly recently have gained public attention and can be added to the data that suggest a correlation between male homosocial groups/behaviors and sexual violence.

Just a few months after a few upperclass boys on a Tennessee high school basketball team sexually assaulted a first year player, causing extensive damage to his colon and bladder, a high school football team in Pennsylvania has drawn public attention for its No Gay Thursdays. This was a weekly event at Conestoga High School and entailed sexual assault and harassment, apparently of a "gay" nature since it was initiated by and directed towards boys. The press calls it a form of hazing. (My thoughts on sexual assault as hazing can be found at the above link about Tennessee. They haven't changed much.) There seems to be something deeper at work here, though. To institute a day when behavior that would--under other circumstances--be deemed gay is permissible suggests more than a desire to initiate first-year students. This is more than hazing. The no gay/no homo phenomena among high school boys is causing serious damage.

This time that damage included sodomizing a first-year player with a broomstick. Three seniors were charged with the assault, which occurred in October. Unfortunately, the district attorney, Thomas P. Hogan, of Chester County, Pennsylvania has bought into No Gay Thursday as well and would not charge them with sexual assault. They were charged, as juveniles, with assault, unlawful restraint, and terroristic threats because, according to Hogan, "from our perspective, it's a physical assault and not a sex crime."

It is a sex crime. In most sexual assaults the goal of the perpetrator(s) is not sexual pleasure but demonstration of power that is enacted through a sexually charged act. These boys very deliberately chose this form of assault on a day they set aside for just this type of assault. It is undeniable that this is a sex crime. They should be charged with a sex crime.

No Gay Thursday is not a new event at Conestoga High School, either. Apparently it has been going on for three years and is a well-known secret. Three years. Hogan mentioned that this (sexual) assault is the result of "ignorance, violence, and a lack of supervision." To that I would add a culture of homophobia, male privilege, and silence--all of which are related/overlapping.

The head coach was initially suspended but resigned last week and the rest of the football staff has been fired. The reason provided for the loss of jobs has centered on the lack of staff supervision in the locker room where most of the hazing occurred. I would argue that the adults were also responsible for informing the culture on the team; a culture which should not include hazing of any kind and should also not perpetuate homophobia.

I am so frustrated hearing coaches say--in all of these cases of sexual assault and exploitation--from high schools in Pennsylvania to universities in Kentucky--that they knew nothing. Coaches are notorious micromanagers. They call players the night before games to make sure they are home. They establish and/or enforce training and diet regimens. They intervene when their athletes are performing poorly academically. Maybe they do not know--in some cases--the specifics; but they know what is happening on their teams.

Farther west, at the University of Missouri, a Title IX complaint has been filed within the university over a sexually offensive and threatening email that was sent by a member of a campus fraternity and directed at the women of a sorority. The fraternity and the student have apologized for the email which included the following: “Get your towels ready because it’s about to go down....[W]e get to stick our arrows straight up their tight little asses. Now don’t go be ass hats, go be as social as possible with our new friends.”

Interestingly, not all the news sources are actually posting what was in the letter. I found it here on the student newspaper's website.

The sender, Edward Lowther put the following apology on Twitter: "What I said was unprofessional on every level. I take full responsibility for my actions, and I will take steps to show that what was said in no way defines my morals or the morals of the men of Alpha Gamma Rho."

I don't think unprofessional is the right word here, because there was no professional context. What he said was aggressive and violent and misogynistic and to at least hint at his morals. The theme of today's post seems to be yes, this was wrong, but not wrong in the way you might think it's wrong. The University as well as the Greek community at MU seems to be taking it seriously, however, as they investigate the incident as sexual harassment and more than just unprofessionalism.  

It has not been a good month for Mizzou. Anti-Semitic graffiti was found on campus a few weeks ago. And of course the school is no stranger to Title IX issues.

Finally, a few states over, parents of a University of Kansas rower are suing the university for false advertising and violating the Kansas Consumer Protection Act after their daughter was sexually assaulted in a residence hall by a football player. They were explicitly promised, they said, that the dorms were safe. This was also listed in the school's promotional materials. While that is going forward, the university also conducted an investigation after the student reported her assault a year after it occurred. A student conduct hearing based on the investigation is forthcoming.

While the lawsuit is a slightly differently and certainly unproven tactic, what these parents are really suggesting is that the realities of sexual violence are being hidden by the university. The lawsuit lists at least seven other incidents of sexual assault in the KU residence halls in a year and half period between 2013 and 2014. The parents say that if they had known about these, they would have reconsidered allowing their daughter to attend KU. They admit, however, that they did not check the university's Clery Act report, which actually shows more than the seven incidents cited in the lawsuit. This remains a case about transparency, and it will be interesting to see how a court interprets it.

Back to school, back to reality

The new school year often brings some Title IX news. Stories that address what a girl versus a boy is allowed to wear for yearbook photos or whether the women's cross-country roster is being padded with runners from winter/spring track have made the back-to-school news in the past. This summer has not exactly been slow in the Title IX world. Court cases against various schools being brought by those who feel schools did not do enough and those who felt schools went too far continue to move through legal proceedings. (See Erin's post from last week.)

This is one the first back-to-school smh-es I have seen. And it is very bad. This morning it was local news; this afternoon national media picked it up.

An off-campus house at Old Dominion University where some members of the Sigma Nu fraternity live, had banners hanging from the windows this weekend "welcoming" female first years--and their parents--with threats of sexual assault. Rivaling a Yale fraternity's chants of "no means yes, yes means anal" from several years back, the banners, only slightly more subtle, read: "Rowdy and fun. Hope your baby girl is ready for a good time"; "Freshman daughter drop off (with an arrow pointing to the front door)"; and "Go ahead and drop off mom too..."

The outrage and condemnation was swift with the president and other university officials speaking out over the weekend against the now-removed banners. But it was not until today that Sigma Nu was suspended the university, a move that was supported by the fraternity's national organization, who said that it does indeed appear that members of the fraternity participated in the banner making and that those men will be dealt with by the organization.

This incident certainly adds to recent discussions about the role and current manifestations of sororities and fraternities on campuses. More narrowly, and more to what we think about here, it speaks to the culture that exists on campus. ODU is NOT on the list of schools being investigated by OCR and there is no Title IX lawsuit against them. This does not mean that is all is well at the university.

Last spring, a local news station spent considerable effort investigating the case of an ODU student who was raped on campus (not by an enrolled student). She contends, and evidence confirms, that the university was slow to respond to her requests--like to change housing, which they did after a month though they charged her more for her new housing--and offered very little support. Her scholarship was yanked when her grades fell in the aftermath of the rape, when she was suffering from PTSD. She did not file a complaint, as I noted, but if she had...well, things like fraternity members making public assertions about the role they think female students should play might make it into the report. In other words, though ODU may have dealt with that rape and this current situation, they need to treat these not as isolated incidents but as part of a culture marked by misogyny. 

"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.

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.

Student Note Addresses Transgender Inclusion in College Fraternities

In the current issue of the Hofstra Law Review, student-author Stevie Tran addresses perceived legal impediments to the participation of transgender members in college and university fraternities. Tran's note addresses two contexts that may raise questions about a fraternity's relationship with transgender members: a decision to admit as a member someone who has transitioned from female to male, and a decision to retain as a member someone who was identifying and expressing as male when they were admitted, but who later transitions from male to female.

In particular, Tran addresses the myth (apparently widely believed among fraternities as it is among women's colleges) that if a fraternity admits or retains a transgender person, Title IX will no longer allow it to exclude members of the opposite sex. Yet, as Tran explains, Title IX's only reference to fraternities and sororities is to exempt them from the general mandate that school activities be nondiscriminatory with respect to sex.  As Tran points out, there is no statutory requirement for fraternities and sororities to be single sex, and no penalty on them, or their institution, if they were to admit members of the opposite sex or transgender members. Nor does a fraternity's relationship with transgender members waive its First Amendment right to associate with members of the same sex.  Interestingly, Tran provides several examples of fraternities and sororities that have already implemented policies of transgender inclusion.  Sigma Phi Beta, for example, expressly commits to operating as a "fraternity for men," and defining eligibility to include "any individual who self-identifies as male, regardless of his sex assigned at birth or his expression or perceived expression of his gender."  SPB's policy goes on to assure that members are not disqualified because they transition after being admitted to the fraternity.

Ultimately, Tran concludes that transgender inclusion is consistent with the core purpose of and values that fraternities stand for.  Having dispelled the myth that Title IX operates as legal impediment to doing so, she argues that fraternities should serve as a model of inclusivity. 

Citation: Stevie V. Tran, Embracing Our Values: Title IX, The "Single-Sex Exemption," and Fraternities' Inclusion of Transgender Members, 41 Hofstra L. Rev. 503 (2012).

Yale students/alums file complaint

Citing a hostile sexual environment on campus, 16 current and former Yale University students have filed a Title IX complaint with the Office of Civil Rights. The complainants have said the university's internal processes for dealing with sexual harassment and misconduct have not been effective. Such conduct has made national news in the past few years. Most notable was last year's incident involving the Delta Kappa Epsilon fraternity. Pledges were publicly chanting on campus "No means yes, and yes means anal"--among other misogynist things. Several years ago, another fraternity's pledges stood outside the campus Women's Center with signs that read "We love Yale sluts." The complaint includes several anonymous testimonies by some of the 16 complainants. OCR will go to the Yale campus to perform its own assessment of the campus climate. Despite the serious nature of this complaint and the incidents that inspired it, it's good to see that Yale students, decades later, still have that activist spirit and Title IX awareness. The photo that is featured on this blog (by permission of 50 Eggs Films) is of a Yale rower protesting the lack of facilities for female rowers in 1976.

ASU's Reponse to Fraternity Rape Could Be Deliberate Indifference

This week, a federal district court in Arizona held that Arizona State University had to defend a lawsuit filed by a former student who was drugged and raped at a party at the Sigma Chi fraternity in 2008. The plaintiff alleges that the university's response to her report of the assault violates Title IX. In denying the university's motion to dismiss, the judge determined that the plaintiff's complaint properly alleged facts that could, if proven, provide the basis for a finding of liability against ASU. In particular, the complaint alleged an incident of harassment that was sufficiently severe, in that the plaintiff was drugged at a party and anally raped while she was unconscious. She suffered post-traumatic stress ultimately withdrew from ASU.

Also, the complaint sufficiently alleged that the university responded with deliberate indifference to harassment about which it had actual notice. This allegation actually takes two forms. First, the plaintiff alleged that an appropriate university official, the Director of Student Life - Judicial Affairs, was aware of prior incidents of sexual harassment involving the Sigma Chi fraternity and failed to take any action that could have protected the plaintiff or any other women from the risk that Sigma Chi would be the grounds for future similar incidents. Secondly, she alleged that university officials responded inadequately to actual knowledge of her own assault. When ASU campus police arrived at the emergency room where the plaintiff was being treated, they failed to give the necessary authorization for medical personnel to conduct a rape kit or authorize a nurse exam. Neither the campus police nor the university's judicial affairs investigated the incident other than to take plaintiff's statement. No one from Sigma Chi was even interviewed about the event.

This is an important decision because it allows the plaintiff to continue to press her claims not just that the university botched its response to her case, which seems pretty egregious to me, but to generally contest and shed light upon the university's culture of looking the other way about the bad behavior of a notoriously problematic fraternity. Known as a "party house," Sigma Chi had just the day before plaintiff's assault been put on probation for hazing and alcohol violations. Nor was this Sigma Chi's first offense -- the plaintiff alleged a five-year history of violations including aggression, intimidation, humiliation, and hostility toward women. If these claims prove true, mere probation seems like a mere slap on the wrist unlikely to offer meaningful protection to other students, satisfying the "deliberate indifference" requirement. That aspect of this case therefore has the potential to send the message to ASU and other universities that it doesn't pay to enable fraternities to provide the context for sexual harassment and assault.

One other observation: this is not the first time we've blogged about rape at ASU. An earlier case involving rape committed by a football player produced a settlement in 2009 that requires all the Arizona state universities to institute programs addressing issues of women's safety on campus. This obligation does not affect the Sigma Chi assault at issue in this case, which occurred prior to that settlement. But it does raise questions about the culture of sexual violence generally at ASU, and how that problem is being addressed both in and outside of the Greek system.

Decision is: Babler v. Arizona Board of Regents, Case 2:10-cv-01459-RRB (ordering denying defendant's motion to dismiss) (D. Ariz. Feb. 15, 2010) (no westlaw cite yet available)

College Need Not Recognize Men-Only Fraternity

On Thursday the Second Circuit Court of Appeals overturned a lower court's injunction that had barred CUNY from enforcing its gender nondiscrimination policy against a fraternity.

The College of Staten Island, part of the CUNY system, requires student clubs seeking official recognition to agree not to discriminate on the basis of sex. A recognized student club is entitled to use College facilities and services, in contrast to an unrecognized club, which may exist but is not eligible for such privileges. The College turned down Chi Iota, a Jewish fraternity, for official recognition because it excludes women from membership. The fraternity challenged this decision, and a lower court enjoined the College from withholding recognition to the fraternity. Specifically, it held that the College's policy infringes on the fraternity's First Amendment rights as an expressive association. (Title IX is not implicated in this case because the statute expressly excludes fraternities and sororities from its scope. 20 U.S.C. 1681(a)(6)).

The Second Circuit disagreed, reasoning that some restrictions on an expressive association are permissible, so long as they don't unreasonably infringe on the organization's strongly-held interest in associating with an exclusive membership.

First, the court reasoned that the fraternity did not have a strong interest in exclusivity. Its "broad, public-minded goals" -- including promoting respect for “the traditional values of men’s college social fraternities, community service, and the expression of Jewish culture" -- "do not depend for their promotion on close-knit bonds." While fraternity brothers may seek to form "deep attachments and commitments" and share "a community of thoughts, experiences, beliefs and distinctly personal aspects of their lives," the "same can be said of nearly any student group in which members become close friends." The court also considered the fact that the fraternity is otherwise an inclusive organization (one needn't be Jewish to join) and the fact that it regularly includes women in its social activities as evidence that its claimed associational interest in restrictive membership is relatively weak. (Tangentially, I think the court's close examination of the organization's purpose is more evidence that the deference the Supreme Court extended to the Boy Scouts to determine whether its purpose was compitable with its exclusion of an openly gay scoutmaster was erroneous and appropriately confined to that particular case.)

Second, it was significant to the court that the College's policy does not prohibit the fraternity from existing on campus, it merely denies them official recognition and the use of college facilities and services. "[The College's] refusal to subsidize the Fraternity’s activities does not constitute a substantial imposition on the group’s associational freedom." The court also considered the College's compelling interest in ensuring that its resources are equally available to all its students.

It will be interesting to see whether more colleges and universities chose not to officially sanction fraternities and sororities in light of this decision. Significantly, the decision does not threaten the existence of single-sex fraternities and sororities. It merely affirms that the scope of private discrimination is, appropriately, kept private.