Round-up of Decisions in Disciplined-Student Cases

In the last half-year, federal district courts around the country have issued decisions in cases against universities filed by students disciplined for sexual assault.  We blogged about two such decisions when they occurred; courts in separate cases dismissed Title IX and other claims against both Columbia University and Vassar.  Besides these two, several more courts have issued rulings in disciplined-student cases in 2015, warranting an overdue "roundup" from me. The details of these cases are presented below, but by way of summary, in all of these cases, the plaintiff's Title IX claims were dismissed early in the litigation. As for claims under other sources of law, one decision (Sterrett) allowed a plaintiff to continue to litigate a procedural due process claim, though in a considerably narrowed form, and others (Peloe and Doe) foreclosed due process claims entirely because the student did not exhaust other remedies first by appealing within the university. Another decision (Marshall) summarily dismissed a student's First Amendment claim. State law claims were not generally represented among these decisions, except in one case (Knox) where the court remanded state law claims because it was without jurisdiction to consider them once the federal claims had been dismissed.

• A male student at Knox College was disciplined for sexual assault of two female students.  In his lawsuit against the college, he argued that there were procedural deficiencies in the grievance proceeding that resulted in his discipline, such as not being able to present all exculpatory evidence or cross-examine one of his accusers who did not attend the hearing.  Without deciding whether the alleged procedural deficiencies constituted violations of state law (claims over which the court had no jurisdiction), the court dismissed the plaintiff’s Title IX claim due to the plaintiff’s failure to allege specific facts that support a conclusion that the university intentionally deprived the plaintiff of procedural rights because of his sex.  Blank v. Knox College, 2015 WL 328602 (C.D. Ill. Jan. 23, 2015). 

• A male student at the University of Michigan sued university officials involved in the process by which he was suspended for raping a female student, which he denied having done. His lawsuit challenged various alleged procedural inadequacies as violations of both Title IX and the Constitution's due process clause. The court dismissed the plaintiff’s Title IX claim because he did not include any specific allegations to support his claim that procedural inadequacies were motivated by gender bias.  But his due process claim was only partially dismissed. He successfully alleged--and will thus be allowed to continue to litigate--his claim that the university failed to provide him adequate notice of the claims against him prior to his initial meeting with the investigator who prepared a report in which she concluded he was responsible for rape (though it did dismiss his claim that notice was inadequate as to the hearing that occurred later).  The court dismissed his claim that the university violated his right to due process by failing to provide him an opportunity to present his side of the matter.  However, this opportunity occurred after the investigator prepared her report, so the court found "plausible" his claim that he should have had greater opportunity to participate in the process prior to that time. Sterrett v. Cowan, 2015 WL 470601 (E.D. Mich. Feb. 4, 2015).

• After a disciplinary hearing, the University of Cincinnati found the plaintiff, a male student, responsible for sexual assault and imposed sanctions.  The plaintiff sued, challenging the fact that university officials limited the evidence he was able to present at the hearing and did not allow him to record it. Because he sued in federal court before taking advantage of the opportunity to appeal the outcome of his disciplinary hearing to various university officials, the court dismissed his due process claim as premature. Similarly, the court dismissed his Title IX claim, which alleged that the university reached an “erroneous outcome” in his case due to gender bias. Even if the plaintiff was correct about the role of bias, the court refused to hold the university responsible for procedural errors that the plaintiff did not seek to correct through the appeal process that is in place for exactly that reason. Peloe v. University of Cincinnati, 2015 WL 728309 (S.D. Ohio Feb. 19, 2015).

• A male student was suspended for one semester for sexually harassing a female student, conduct that largely consisted of him pestering her to go out with him or have sex with him.  In seeking a preliminary injunction against the suspension, the plaintiff alleged that the university violated his First Amendment rights to free speech, but the court rejected this argument based on precedent that allows the regulation of sexually harassing speech. The court also rejected his Title IX argument was because he failed to allege any facts that could support a conclusion that gender bias played a role in the university's decision to sanction him. For example, there were no alleged comments by university officials conveying such bias, nor allegations that the university had a motive (such as impressing OCR) to impose unwarranted discipline on a male student. Marshall v. Ohio University, 2015 WL 1179955 (S.D. Ohio Mar. 19, 2015)

• A federal court in Ohio granted Miami University's motion to dismiss Title IX claims filed by a male student expelled for sexual assault because he did not sufficiently allege that the university's disciplinary proceedings were biased against him because of sex.  One aspect of his complaint alleged that a campus safety officer encouraged a (presumably exculpatory) witness not to testify, an allegation that the court admitted was "troubling" but still void of gender bias ("These facts pleaded against [the officer] do not suggest a gender bias against males so much as against students accused of sexual assault."). The court also refused to interpret allegations that the University had been publically criticized for failing to address sexual assault as an allegation that the University was biased against the plaintiff on the basis of sex. Sahm v. Miami University, 2015 WL 2406065 (S.D. Ohio May 20, 2015)

• The University of South Florida had sent notice via email (twice and with “high importance”) to a student who had been accused of sexual assault and requested his participation in the investigation and disciplinary process. The student deleted the emails without reading them because he did not recognize the name of the sender, resulting in his summary expulsion. The student then brought a due process and a Title IX claim against USF, both of which were dismissed. The court rejected his due process claim on the grounds that it was premature to sue the university for lack of due process without first going through all of the appeal procedures the university provides. The court also dismissed the student’s Title IX claim because he did not allege any intentional discrimination on the university’s part, only that its procedure for handing sexual assault has a disparate impact on male students, a claim not recognized under Title IX’s private right of action.  Though the court gave the plaintiff permission to amend his complaint to include allegations of intentional sex discrimination, it predicted that such efforts would be "futile." Doe v. University of South Florida Board of Trustees, 2015 WL 3453753 (M.D. Fla. May 29, 2015).

Rider College Softball Coach Files Lawsuit Challenging Dismissal

Patricia Carroll, head softball coach at Rider College since 1994, filed a lawsuit last week in the federal court in New Jersey, arguing that her employment contract was slated for non-renewal in retaliation for her complaints that Rider's women's programs received fewer resources than the men's. In particular, she alleges that her complaints targeted inequities in scholarship money and booster funding, as well as the size of coaching staff and quality of facilities like locker rooms.

Though Carroll has won three championships in the past, her record over the past three seasons is reportedly 26-127.  So it's possible that the college will claim that its decision was motivated by performance rather than retaliation. To win her case, Carroll will have to undermine this rationale and prove that it is pretext for retaliation, such as by proving that other coaches with similar records (and who have not spoken out about Title IX violations) are retained. 

Because the college's decision not to renew Carroll does not take effect until next summer, Carroll is in the unique position of challenging her termination while she is still employed. She is suing to keep her job, as well for unspecified compensatory and punitive damages.

Title IX Lawsuit Challenges Berkeley's Response to Sexual Assault

Three female plaintiffs, all former students, have sued the University of California at Berkeley alleging that in each of their cases, the University failed to respond adequately to their reports of having been sexually assaulted. 

The first plaintiff alleged that the the university's failure to communicate reporting procedures caused several months to go by before she was able to report that she had woken up to a man touching her after a university event.  Then, she says, the university shut her out of investigation and disciplined the offender with only probation.

The second plaintiff alleged that when she reported sexual misconduct of a visiting lecturer, the Title IX Coordinator admonished her for not clearly withholding consent, instead of investigating and disciplining the lecturer for groping her even though she had not actively granted consent.

The third plaintiff also alleges that she was shut out of the investigation the university conducted into her claim that she had been raped by a fellow-student acquaintance. Moreover, she challenges the fact that his suspension was only temporary (a year and a half) and that he will be allowed to return to campus -- notwithstanding the fact that rape kit evidence indicated that trauma had ensued.

The plaintiffs all claim that the university violated Title IX. in each of their cases.  Because their lawsuit seeks to hold Berkeley accountable for money damages, they must satisfy the "deliberate indifference" standard used by courts in such cases.  This standard can often be difficult to satisfy and not necessarily satisfied by allegations of inadequacies that would constitute violations of  the Department of Education's Dear Colleague Letter. 

Fifth Circuit Decision Flags Area of Uncertainty in Future Title IX Retaliation Cases

On Monday the Fifth Circuit Court of Appeals rejected the appeal of Anthony Minnis, the former women's tennis coach at Louisiana State, who had sued the university challenging his dismissal and other employment practices as racially discriminatory as well as retaliation for Title IX advocacy on behalf of his team.

Regarding the Title IX claim, Minnis's legal argument was that the appellate court should address his  retaliation claim in order to resolve a question of legal uncertainty regarding the application of Title VII standards to Title IX cases. Typically, when courts apply Title IX in the employment context, they are influenced by cases applying Title VII, the federal employment discrimination statute, which also prohibits discrimination on the basis of sex. Recently, in 2013, the Supreme Court ruled that Title VII retaliation plaintiffs must prove that retaliation was the "but for" cause of their termination or other adverse action.  In other words, they must show that the employer was solely motivated by retaliation, rather than by a "mixed motive" that includes retaliation among other reasons. Because employers' motives are frequently complicated and plausibly involve multiple factors, the Supreme Court's decision considerably narrowed the scope of Title VII's application to retaliation claim.

Minnis's lawsuit used Title IX, rather than Title VII, to advance his retaliation claim.  If his case had not been dismissed on summary judgment grounds, the lower court might have had to consider the question of whether Title IX continues to allow retaliation plaintiffs to prevail in mixed-motive cases, or whether the Supreme Court's rejection of mixed motive cases under Title VII extends to Title IX as well.  Minnis argued that the appellate court should have taken his appeal so that they could address that issue and provide clarity to lower court in its jurisdiction.  However, the lower court's dismissal of Minnis's retaliation claim did not turn on whether the university had a single or mixed motive.  Rather, the lower court ruled that Minnis failed to establish a prima facie case by demonstrating that he engaged in protected conduct. (Because both the men's and women's tennis coaches had advocated for an indoor facility, this could not even plausibly be a Title IX retaliation claim, according to the lower court.)  Since his case would not fall under Title IX to begin with, the court does not reach the legal question over whether mixed-motive arguments are still available to Title IX retaliation plaintiffs.

But the decision reminds us that this is an area of legal uncertainty that will eventually have to be addressed in future cases.    

Decision: Minnis v. Bd. of Supervisors of Louisiana State Univ., 2015 WL 3941846 (5th Cir. June 29, 2015).

Department of Justice Supports Transgender Student in Lawsuit Over Bathroom Use

Today the Department of Justice filed an brief on behalf of a transgender boy who sued his school district in Virginia after he was denied access to the boys' restroom.  The brief sets for the Department's position that Title IX requires schools to allow transgender individuals to use the restroom consistent with their gender identities.  A key section of the brief sets forth the agency's rationale:

“Under Title IX, discrimination based on a person's gender identity, a person's transgender status, or a person's nonconformity to sex stereotypes constitutes discrimination based on sex. The term 'sex' as it is used in Title IX is broad and encompasses gender identity, including transgender status. ...

“Prohibiting a student from accessing the restrooms that match his gender identity is prohibited sex discrimination under Title IX. There is a public interest in ensuring that all students, including transgender students, have the opportunity to learn in an environment free of sex discrimination."

This is not the first time the Department of Justice has taken up the cause of discrimination against transgender individuals.  Additionally, the Department of Education has signaled its interpretation of Title IX is similar as well.  Yet, courts have been reluctant to take this view, see, e.g.  Hopefully the push from DOJ in this case will help turn that tide.

Recent Law Review Articles Examine Title IX's Application to Sexual Assault, Transgender Rights

Today I read two recent law review articles that warrant mention on this blog.  The first article, by Lambda Legal attorney M. Dru Levasseur, examines a variety of legal contexts in which transgender rights are undermined by courts and other decisionmakers' tendency to distinguish "biological sex" from gender identity instead of viewing the latter as a constituent of the former.  In contrast, he notes recent examples in which the Department of Education has taken the position that sex discrimination encompasses discrimination on the basis of gender identity, such as in the enforcement of Title IX, a sex discrimination statute, to allow transgender students to use bathrooms according to their gender identities.  Levasseur challenges courts to follow suit.  By updating their thinking on the nature of etiology of sex and recognizing gender identity as a component of sex, they can properly interpret sex discrimination statutes (and other legal contexts that require a definition of "sex") to validate and protect trans identities.

In the second article, Boston University law professsor Katharine Silbaugh argues that in Title IX's application to campus sexual assault has been unnecessarily influenced by Title VII caselaw to adopt a "criminal justice model"-- one focused on punishment in individual cases -- rather than a "public health model" -- one focusing on community-wide prevention. She goes on to make the case that OCR's enforcement efforts should seek to motivate colleges to adopt robust preventive measures --  aimed at such targets as climate, relationships, and social norms -- rather than micromanage their post-assault response. This shift in focus, she argues, better utilizes the skills and talents of colleges and universities.  Moreover, a public health model is a better fit for Title IX's civil rights objective, since it aims to protect the ability of all students to partake fully in their educational experience without having that opportunity limited by sexual violence.

Articles cited:

M. Dru Levasseur, Gender Identity Defines Sex: Updating the Law to Reflect Modern Medical Science Is Key to Transgender Rights, 39 Vt. L. Rev. 943 (2015).

Katharine Silbaugh, Reactive to Proactive: Title IX's Unrealized Capacity to Prevent Sexual Assault, 95 B.U. L. Rev. 1049 (2015)

UCLA faces lawsuit for handling of graduate students' complaints

This week the internets were flooded with discussions and news and comments on Professor Tim Hunt's statements about women in labs. And though they certainly have their problems (which need addressing), the hard sciences alas are not the only fields in which women face a sexually hostile environment.

This week two history graduate students at UCLA filed a lawsuit against the school* and its trustees which states that the school did not properly address their respective complaints of sexual harassment and assault by one history faculty member. Both women were, in some way, discouraged from moving forward with the complaint and/or disciplinary hearings. There was an investigation of one of the women's complaints, but she alleges she was not apprised of how the situation was being handled. There was no investigation of the other.

We have seen more and more graduate students coming forward with experiences of harassment. These stories should be increasing the awareness that the situation of graduate students does not resemble that of either undergraduates or faculty members, though they have the duties/responsibilities of both. So when graduate students experience harassment and possible retaliation, administrators need to realize the unique position these students are in. One faculty member can have a huge influence on a graduate student's education and career. This does not mean that schools should take more seriously the complaints of sexual harassment and assault when they involve faculty and graduate students, but that there are different issues. This lawsuit may make that dynamic a little more clear.

* UCLA is already on the list of schools OCR is investigating.

Competition over ethics implies Saban

I wrote last week about the new SEC policy preventing the transfer of student athletes with serious misconduct issues to SEC schools. Though it passed with ease among SEC administrators, it is not without controversy.

One person raising some objections is Alabama football coach, Nick Saban. Saban is worried about the competitive advantage other conferences will receive because they do not have such policies. So athletes, again athletes who have been found responsible for sexual assault and domestic violence by their former schools, will get turned down because of their record of, again sexual assault and domestic violence, and then attend non-SEC schools. Remember, Saban is the recipient of such a player--Jonathan Taylor. Taylor was under investigation at Georgia for domestic violence when he transferred to Saban's squad. He has now been kicked off that team because of being arrested again for domestic violence.

Let's be clear--these are arrests. Public record arrests. We are not even talking about sketchy (Title IX violating) internal investigations within athletic departments. We are not even dealing with, in this situation, student conduct hearings and the privacy issues attached to those. The lack of compliance with Title IX regarding policies and procedures, as I said the other day, is part of the reason the SEC policy is only one step in addressing the problem of student athletes who commit sexual and domestic violence. But it's a step Saban does not want to make because he believes it might harm the SEC and its ability to compete with the other power five conferences.

In short, he is saying f&^* ethics and the safety of (mostly) women on campus--we need to win. He is upset that the SEC is hindering the way he operates his program, but framing it as just looking out for the best interest of the conference.

He is not the only concerned SEC coach. Also notable is that the coach who lost Taylor to Alabama, Georgia's Mark Richt, was also a little concerned about the new rule. He was slightly more tactful and used a paradigm of second chances rather than the "but what if we aren't as good without the rapist on our team" argument.

Why is this policy being passed now when campus sexual assault has always been a problem? Well because the general public is starting to realize that it's an epidemic. And while sports fans might  allow some questionable practices that result in perks to student-athletes and wins for our favorite teams, the ability to get away with rape and violence is not one of those, and it is increasingly difficult to ignore the issue.

If Nick Saban took a little more time to think about this he could have both gotten his concerns addressed (without looking like a privileged, ignorant jerk) and been a hero (well for reasons other than football). Because what he could have said was this: This rule exemplifies the ways in which the SEC is a leader both on and off the field and is addressing a serious issue facing college and university communities. But we should not be the only ones. I urge the other conferences and the NCAA to implement similar policies regarding transfer athletes so that we can guarantee the safety of our student body and maintain the integrity of our athletic programs.

But that's not what he said.

OCR Will Investigate Iowa Complaint

Last February we blogged about the complaint University of Iowa field hockey players filed against the university over the termination of their coach, Tracey Griesbaum. This week we learned that the Department of Education's Office for Civil Rights has decided to investigate the complaint and determine whether the university in fact discriminated against the players in violation of Title IX.

We believe this is the first time the government has ever considered a complaint about a coach's termination to be sex discrimination from the players' point of view. Title IX regulations require equal treatment between men's and women's programs in the aggregate, including the quality of coaching athletes receive as a component of that requirement. The players argue that when Iowa fired Griesbaum over complaints about her demanding coaching style, the university imparted a sexist double standard that deprived them of the opportunity to be challenged by a successful, demanding coach.  Importantly to the framing of this claim, male athletes at Iowa  are given that opportunity, as evidenced by the fact the university has never disciplined coaches of men's teams for being too hard on them. 

It will also be interesting to see whether OCR looks at the harmful message a university sends to female players who might be aspiring coaches when it fires a female coach over conduct that is tolerated and even encouraged from male coaches. Because female athletes could be discouraged from pursuing a lifelong relationship with college athletics in a way that male athletes are not, this is arguably another way in which firing a female coach is sex discrimination from the players' point of view.

Another female coach leaves Minnesota Duluth

The hits just keep on coming for University of Minnesota Duluth Athletics.

The women's basketball coach, Annette Wiles, who has compiled a winning record over seven seasons with the Bulldogs, has resigned her position citing the unhealthy work environment. She is the third female coach to leave this year. Hockey coach Shannon Miller was not brought back (her contract expired at the end of the academic year) allegedly because of financial reasons. She was told her salary was too high. The director of hockey operations--who is also the softball coach--was also let go. Though administrators say Jen Banford was only let go from her DOO position, not coaching, but this meant a renegotiated contract with a significant pay cut, so she resigned.

Wiles also left as she was attempting to negotiate a contract (an extension for the one set to expire this summer). A statement to the press from her lawyers, the same  ones who are representing Miller and Banford, states the athletic director Josh Berlo refused to discuss this with her.

The news of Wiles's departure was also accompanied by more information about the status of Miller's and Banford's legal actions against UMD. Complaints have been filed with the Equal Employment Commission and they are preparing for a lawsuit. It is not clear whether Wiles will join that lawsuit.

Considering the new SEC policy

The SEC announced a new policy this week that would prevent student-athletes with records of domestic violence and sexual assault from transferring to SEC schools (as athletes). It was a proposal made by Georgia and adopted fairly readily according to reports. Whether one particular incident (like Alabama's acceptance of a football player who was under investigation at Georgia for domestic violence at time of transfer and has allegedly re-offended) or just greater awareness of the issue of sexual assault and domestic violence inspired the new policy has not been made clear.

The exact wording of the policy is as follows: "a transfer student-athlete who has been subject to official university of athletics department disciplinary action at any time during enrollment at any previous collegiate institution (excluding limited discipline applied by a sports team or temporary disciplinary action during an investigation) due to serious misconduct (as defined herein) shall not be eligible for athletically-related financial aid, practice or competition at an SEC member institution."

In my recent research/writing/thinking, I have been looking at why athletics departments have not been affected by the increasing visibility of activism aimed at addressing campus sexual assault. In other words why have they, arguably, been relatively unscathed for not following correct policies and procedures when they learn that student athletes have been accused of sexual violence. Most colleges and universities accused of mishandling sexual assault reports do not truly fear the ultimate--and only--penalty the Office of Civil Rights can levy--loss of federal funds--because it has never happened. There are potential large financial penalties if students file lawsuits rather than or in addition to a complaint with OCR, as happened at University of Connecticut.

The biggest hit at the moment, however, is the one schools take to their reputation. As campus sexual assault becomes more visible because of activism, media coverage, survivor narratives, and investigations schools are receiving considerable negative attention. And schools do not want this.

The desire for reversing negative publicity does not seem to apply at the moment to athletics departments. They seem to be weathering the storm fairly well. Look at Florida State. Look at Colorado, who paid out a multi-million dollar settlement in the mid-00s. Look at Oregon currently under investigation and facing a lawsuit. Have their athletics departments suffered? Have people called for boycotts of games or stopped buying merchandise? No. Have schools reprimanded their athletics departments by imposing internal sanctions or firing administrators who fail to policy and procedure in these matters? Not that I have seen.

Actually, let's go back to Oregon. It provides an example of how the SEC policy, while a good one, would not work in this case because of a culture of secrecy and protection of student athletes. Oregon took as a transfer a player from Providence College who was kicked off that basketball team for alleged participation in a gang rape. But he was not formally punished or investigated by the college. There was nothing on his transcript. Oregon officials maintain that they did not know of his past. He was then kicked off the basketball team, along with two other players, after a student accused them of rape. Said player, Brandon Austin, has transferred to a junior college in Florida. They are aware of the accusations against him.

So the SEC policy, if it existed at this junior college or the conference to which it belongs, would have prevented Austin from transferring there for the purpose of playing basketball. But it would not have prevented the original transfer from Providence to Oregon.

In other words, this policy does not get at the whole problem. It is based on the premise that schools and their athletics departments are doing their jobs in reporting and investigating sexual assault and violence in the correct way. This is not universally true. We cannot know statistics, unfortunately, on this matter. Most of the evidence is anecdotal and we have to assume that the lawsuits that have emerged are a small percentage of actual mishandling based on what we know about underreporting and the harassment and dismissal of those who do initially report.

The SEC's policy does not mean there will be no more offenders accepted as student athletes at SEC schools. Look again at the exception in parentheses: "excluding limited discipline applied by a sports team." This is the type of discipline being doled out to accused student-athletes in an attempt to appease victims. It is a violation of Title IX if the act in question is sexual assault or harassment. It cannot be handled internally. This policy is a start at addressing this issue, but we need more done at the front end of this problem, including stronger punishments against offending athletics departments.

Complaint Against Northwestern Professor Does Not Pit Title IX Against Academic Freedom

Back in February, Northwestern professor Laura Kipnis wrote an essay in the Chronicle of Higher Education critical of (to borrow from her title) "sexual paranoia" on college campuses. One of the essay's main targets was what Kipnis describes as a lawsuit filed by a student against a professor charging that he had sexually assaulted her in the context of a dating relationship. Recently, Kipnis wrote a second essay (subscription required) detailing what happened to her in the aftermath of the first. Students reacted negatively to her first essay, and in addition to protesting its content, two graduate students also filed an internal complaint alleging that the essay was retaliation against the student who had filed the lawsuit and would deter other students from reporting sexual harassment against professors in the future. The focus of Kipnis's second essay was the obscure and lengthy process that the university used to investigate the complaint against her. Apparently, university officials were reluctant to reveal the charges against her, hired an outside law firm to conduct the investigation and adjudicate the complaint, buried information about the process in a labyrinth of web links, and took longer than the OCR-prescribed timeframe of 60 days to resolve the matter. In fact, at the time of Kipnis's second essay, the university had not yet reached a resolution of the case; though it has since found in Kipnis's favor and cleared her of all charges of wrongdoing.

Kipnis's essay has generated concern (see, e.g.) about the threat Title IX poses to professors' academic freedom. My view is that it is unfair to indict Title IX based on what happened to Kipnis. I think her criticism of the university's procedure for investigating the complaint against her is a reasonable one. Importantly, however, none of the ways in which the university obscured, outsourced, and prolonged the investigation process are requirements of Title IX. Northwestern could have dealt with the complaint against Kipnis in a more transparent, evenhanded, and efficient way without any risk of violating Title IX. Thus, there is no basis for predicting that universities motivated by Title IX compliance obligations would utilize similar procedures to evaluate charges against a professor stemming from an exercise of academic freedom.

Secondly, while I don't have access to the university's reasoning for dismissing the complaint against Kipnis, this outcome is entirely consistent with the law of retaliation more generally, and illustrates why it would be difficult for a student to ever prevail in a retaliation claim based on professor's written publication. Retaliation generally consists of adverse action targeting a person who engaged in protected conduct as punishment for that conduct. For words alone (i.e., without an associated tangible act) to constitute an adverse action against the person engaged in protected conduct, it would have to rise to the level of retaliatory harassment. Harassment requires the conduct that is severe or pervasive, and a single written essay, especially one that comments on a matter of public concern and public record, is neither. Moreover, the retaliation charges against Kipnis contained a mismatch between the person who had engaged in protected conduct (the student who filed the lawsuit against the professor) and the person(s) adversely affected by Kipnis's essay (i.e., the entire student body whose motivation to challenge harassment was arguably "chilled.").  For these reasons, there is little risk that professors would ever actually be found liable for retaliation based solely on the fact of a publication expressing academic freedom, and there is little grounds on which to generalize Title IX as a threat to that freedom.  

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

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

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

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

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

"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.

Cost-of-Living Stipends Raise Gender Equity Challenges

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

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

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

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

Punishment and reforms for Stanford band

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

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

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

The band has the option of  appealing their partial suspension.

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

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

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

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

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

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

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

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

What Winston's drafting means

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

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

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

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

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

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

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

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

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

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

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

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

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

Don't forget to follow the law!

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

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

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

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

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

Court Dismisses Title IX Case of Student Suspended For Sexual Assault

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

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

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

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

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


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

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

Student Accused of Sexual Assault Sues Columbia

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

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

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

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

OCR Issues Guidance on Title IX Coordinators

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

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

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

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

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

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

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

Court Dismisses Title IX Count Against Pepperdine

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

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

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

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

Utica College Selective Deploys Title IX Excuse

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

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

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

Another female coach terminated: University of Delaware

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

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

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


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

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

Prom season discrimination

I know we do this every year, but this is another post about discrimination against gender non-conforming students. It always happens somewhere in the United States during prom/yearbook season.

The latest incident--out of Louisiana--is nothing unique (unfortunately). A gay high school student wanted to go to her prom wearing a tuxedo. According to a student contract, girls (regardless of sexual orientation) must wear dresses to the prom. She had heard that teachers would refuse to chaperone the event if a girl arrived wearing a tuxedo.

The good news, and maybe what makes this story somewhat different from others, is the quick reversal of the school policy. Schools administrators, including the principal who told the student's mother "Girls wear dresses and boys wear tuxes, and that's the way it is," came under pressure from the National Center for Lesbian Rights.

So, yay--I guess. But the reason I keep writing these things is that they keep happening. We have been focused on bathrooms lately and of course there are ongoing issues about gender identity and sports participation as well. Though I do not want to create an issues hierarchy or suggest that bathrooms and sports are more sensitive/less palatable topics for many in America than prom attire, I do think that the policing of gender via high school fashion is something people just need to let go of. A lot of today's fashion is a throwback to the 80s--the era of androgyny. (And if we were not in 80s redux, this policy would still not be acceptable.) Raising healthy children and keeping them safe is not about monitoring where they pee and what they wear to prom. But there will be another incident like this next year, maybe even this year; prom season is far from over. I hope stories like this in which the backlash against administrators was strong and quick are serving as a deterrent.

On a different, non-Title IX note, this dress code in Monroe, Louisiana (available at the first link), in addition to being discriminatory against LGBT individuals is also pretty classist. The mandate for tuxedos and gowns and no athletic shoes is certainly a financial burden for some students. It is less likely that these students will come forward because of shame around their economic situation and because we find it very difficult to recognize class discrimination in a country that presents itself as a meritocracy.

Court Dismisses Expelled Student's Case Against Vassar

Last week a federal court in New York ruled in favor of Vassar College, granting its motion for summary judgment on discrimination and other claims filed by a male student who had been expelled for sexual assault. The plaintiff, Peter Yu, and the female student who accused him had provided a university disciplinary committee with vastly different accounts of the encounter at the heart of this case; he claims he asked her if she wanted to have sex and she agreed, while she claims that she did not agree and was "helpless" to resist his advances. They also had different interpretations of the messages she sent to him later, in which she apologized for leading him on and offered to "stand up" for him should get in to any trouble over the fact that someone in his dorm called security (because they thought he was "potentially hurting somebody.").  His position is that the messages verify his version of the events, while she claims she sent them in a state of "denial," "shock" and "disbelief."  Based on  this evidence -- along with the statements of witnesses who testified to the female student's intoxicated state and that they were concerned for her when they saw her leave with him -- the committee found Yu responsible and the college expelled him in March of 2013. He sued the university three months later. (We blogged about his complaint at the time.)

Yu's primary claim against Vassar is that the college's decision to expel him violates Title IX.  His argument to this end incorporated two alternative theories that have been accepted by earlier  precedent (coincidentally, also involving Vassar College) in cases challenging university discipline: erroneous outcome and selective enforcement.  First, Yu claimed that gender bias created a flawed process leading to an erroneous outcome.  To this end, Yu made numerous allegations of procedural flaws.  For example, he argued that he was not given enough time to consult with his lawyer prior to the hearing, that he had insufficient opportunity to conduct a cross-examination of witnesses, and that there bias on the part of the disciplinary committee arising from the fact that the complainant's father is on the faculty. The court rejected these and other procedural challenges as being either without factual basis or support in law.

Moreover, even if Yu had established a procedural flaw, the court determined that he presented no evidence that gender bias caused the error.  For example, the court noted, he did not provide any statements by committee members expressing any sort of discriminatory intent, nor did he "provide any statistical evidence that 'males invariably lose' when charged with sexual misconduct at Vassar."  Instead, Yu argues that only bias could explain why the committee did not read the complainant's post-incident messages as evidence of his innocence.  But the court rejected this inference of institutional bias, noting that the committee was free to credit the complainant's explanation for the messages, and to weigh the messages against other inculpatory evidence, such as the testimony provided by the other witnesses who were concerned about the complainant.

Yu also argued that Vassar's policies are biased because, on the one hand, students who are incapacitated by alcohol cannot be said to have consented to sex, while on the other hand, accused students are held responsible for recognizing that, even when they are themselves intoxicated. Yet, while the court acknowledged that the policy may well reflects a "double standard" it is a double standard that benefits complainants over respondents, not women over men.  Vassar's policy is written in a gender-neutral manner and does not assign the role of complainant and respondent based on sex.  Moreover, the court recognized that Vassar's own sexual assault response training emphasizes that sexual assault complaints could be filed by men or women, against men or women. 

Yu's second Title IX argument of selective enforcement fared no better than his erroneous outcome argument. He could not establish that men were treated more harshly than women because Vassar has never had to respond to a sexual assault allegation against a female student.  Moreover, Vassar provided examples of cases in which male students accused of sexual assault were not expelled.

As this case and others demonstrate, plaintiffs challenging university discipline for sexual assault have a difficult time prevailing under Title IX, as there is often very little evidence of gender bias for them to point to. Yet this does not mean universities are free to throw the book at all those accused of sexual assault in order to avoid charges of under-enforcement of Title IX standards (as some Title IX critics may believe). Other avenues remain available to plaintiffs seeking to challenge university discipline, including due process (which only apply against state schools), breach of contract (on the theory that the code of conduct, including its disciplinary procedures, are a contract between the university and the student), and (perhaps) negligence or other torts.  In this case, Yu did not prevail on his breach of contract claim because the court had determined that Vassar had not violated its own procedures.  But, while not applicable here, that cause of action remains available to protect students in the event a university fails to deliver promised procedural rights to students accused of wrongdoing.

Decision: Xiaolu Peter Yu v. Vassar Coll., 2015 WL 1499408 (S.D.N.Y. Mar. 31, 2015).

Expulsion for bathroom use

My last blog post a few weeks ago was a hopeful one about transgender students and bathrooms.

This post, less hope, more dismay. A federal judge has ruled that the expulsion of Seamus Johnston from the University of Pittsburgh at Johnstown was not in violation of anti-bias statutes and dismissed his lawsuit. Johnston, a transgender man, was expelled in 2012 from the University of Pittsburgh at Johnstown for "exhibiting disorderly, lewd or indecent behavior." What did he do? He used the men's bathroom and locker room facilities.

We had not heard of this story at the time. It surely would have been one of the earlier cases of transgender bathroom policy. This ruling, had it occurred at that time, would have preceded the recent spate of cases in which students have been given the right to use facilities in accordance with their gender identity. This week's ruling back then would still have been problematic; but now it seems anomalous and thus even more worrisome. Even though there has been strong opposition to transgender students using bathrooms and locker rooms in accordance with their gender identity, largely from religious organizations, policies and legal rulings have upheld these rights. Not so here.

Johnston used men's bathrooms without (according to Inside Higher Ed's article--linked above) any problems. It was, apparently, his use of the men's locker rooms when he was taking a course in weight training where he ran into problems--seemingly from the administration. There is no report of student complaints, though that does not mean there weren't any. They wanted him to use a unisex bathroom. He continued to use the men's facilities. This led to the disciplinary hearing and his expulsion for the "lewd behavior."

The university claims that Johnston could not use the men's bathrooms and locker rooms because he was not legally a man. He had identified as a man since his enrollment in 2009 and began hormone therapy when he was a student. He had legally changed his name and presented the documentation of this fact to the university. Johnston offered "proof" of his gender identity that was both more than adequate and unnecessary. This burden of proof on transgender students continues to be, well, a burden. But the university wanted a birth certificate.

We have discussed, mostly in the context of interscholastic and intercollegiate sports, the issues with a birth certificate requirement. Many states will not, for example, re-issue a birth certificate for change of gender. This legal requirement is one that the IOC mandates for transgender athlete participation--one of the many critiques of IOC policy. Now a university is requiring that document--for a student who wants to use the men's bathroom. Seamus Johnston will be the same person with or without that document. Without it he is a person who commits acts of lewd behavior. With it, according to the University, he is a man who is not infringing on anyone's privacy rights or acting in an unbecoming way. This is the paradigm that the federal court upheld in dismissing Johnston's lawsuit.

DOJ Challenges Discrimination Against Transgender Professor

The Department of Justice has filed a lawsuit against Southeastern Oklahoma State University on behalf of a transgender professor who did not receive tenure after she transitioned on the job.  The university had hired Professor Rachel Tudor in 2004 to a tenure-track position in the English Department.  At the time, she presented as a man and went by a traditionally male name.  In 2007, she came out as transgender and began cultivating a female appearance consistent with her gender identity. She was later terminated in 2011 after having been denied tenure by the university.

She then filed a complaint with the EEOC, the federal agency that enforces employment discrimination laws. The EEOC investigated the case and determined that there was reasonable cause to believe that discrimination occurred.  When a settlement could not be reached at that point, the Justice Department agreed to litigate the case, as part of what the agency is calling a "joint effort to enhance collaboration between the EEOC and the Justice Department’s Civil Rights Division for vigorous enforcement of Title VII."  The case also provides the Justice Department an opportunity to put into action the position it outlined in a memorandum last December, in which it interpreted "discrimination on the basis of sex" to include discrimination on the basis of "gender identity and transgender status."  This expansive view of sex discrimination goes even farther than the protection some courts have found for transgender plaintiffs on the basis of gender nonconformity or the fact of their gender transition.  

The lawsuit contains several allegations that support the inference that the university's tenure decision was motivated by discrimination. For one, Professor Tudor had been recommended for tenure by her department chair.  At this university, such recommendations are routinely followed, yet in Tudor's case, the Dean overrode the decision.  Also, the lawsuit alleges that someone in the human resources department told Tudor that the Dean asked HR whether it would be permissible to fire Tudor because her "transgender lifestyle" offended his religious beliefs. 

While the case is filed under Title VII, Title VII decisions in the realm of sex discrimination are very influential in Title IX cases.  So a positive outcome in this case could translate to expanded federal protection for transgender students as well.