Tuesday, July 29, 2014
The Department of Education recently exempted three colleges from Title IX's provision prohibiting discrimination against transgender and gender-nonconforming students. George Fox University (Oregon), Simpson University (California), and Spring Arbor University (Michigan), The exemptions come just three months after the Department of Education's Office for Civil Rights issued a guidance letter to colleges on sexual violence that included transgender students as a protected group under Title IX. The colleges were controlled by a religious organization, a ED spokesperson told the Huffington Post yesterday, and Title IX exempts such organizations from compliance if admitting a student or allowing a student to remain at their institutions would be inconsistent with their religious tenets. While all three colleges requested exemptions from admissions and accomodations for transgender students, one of the schools, Spring Arbor, was also granted permission to discipline students for same-sex "activity," extramarital sex, single parent pregnancies, and having abortions. Professor Kristine E. Newhall (UMass Amherst) told the Huffington Post that the concern is not the statutory exemption, but Education Department's lack of clear criteria "about what a school must meet to show [that it is] controlled by a religious organization." Read more here.
Thursday, July 24, 2014
Professor Dan Subotnik (Touro Law) sent us An Anti-Rape Measure Too Far? analyzing a bill in the California legislature, which, if it becomes law, is likely to become as noteworthy as Antioch College’s Sexual Offense Prevention Policy. California SB 967 would require college students to secure “affirmative consent” from their partners before having sex. "Affirmative consent” is defined in the bill as “affirmative, conscious, and voluntary agreement to engage in sexual activity.” The bill’s author, California state senator Kevin de Leon, told the Washington Times that SB 967 “will change the equation so the system is not stacked against survivors by establishing an affirmative consent policy to make it clear that only ‘yes’ means ‘yes.’” The bill’s supporters describe SB 967 as providing “clearer guidance” on rape prevention and providing justice and adequate services to victims. Opponents criticize the bill as “unnecessary, misdirected and vague” and likely to “result in the unfair treatment of men,” as noted in its synopsis here. If the bill becomes law, colleges must use the legislature’s definition of consent in their sexual assault policies or risk losing state funding for student financial aid. Readers may recall the deep controversies that campus rape laws and sexual assault policies can engender, including concerns about privacy, due process, and the rights of victims and the accused.
In his piece, Prof. Subotnik concludes that the reality and psychology of sexual encounters confound attempts to regulate sex through campus affirmative consent laws. Read An Anti-Rape Measure Too Far after the jump.
Monday, May 12, 2014
It appears Virginia Military Institute's transition to a co-educational school has been less than smoooth. Most will recall the Supreme Court's decision in 1996, rejecting VMI's argument that its adversative method was unsuitable for females and mandating the admission qualified females. Starting sometime around 2008, the Office for Civil Rights opened an investigation in response to claims of sexual assault and VMI's inadequate procedures to address them. On Friday, VMI and and OCR entered into a resolution agreement. The press release from OCR indicates:
. . . VMI engaged in sex discrimination in violation of Title IX of the Education Amendments of 1972.
OCR found that female cadets were exposed to a sexually hostile environment and that VMI failed to provide for the prompt and equitable resolution of cadet complaints alleging sexual harassment and sexual assault, as required by Title IX.
The office determined that VMI's policies and procedures for addressing complaints of sexual assault from cadets and employees fail to comply with Title IX. OCR also found VMI in violation of the Title IX regulation that prohibits excluding a student on the basis of pregnancy because VMI's marriage and parenthood policy required a pregnant cadet to resign or be separated from the school. Parenting cadets were also required to resign or face separation from VMI. OCR negotiated revisions to VMI's marriage and parenthood policy, which became effective in April 2014.
"All members of the VMI community must be able to live, study and work in a safe environment. Protecting students and employees from sexual assault is a basic obligation of every educational institution, including the ones that provide military education, and I am thrilled that VMI has agreed to take necessary corrective steps going forward" said Catherine E. Lhamon, assistant secretary for civil rights. "I am also delighted that VMI now allows cadets who become pregnant and all cadets who become parents to continue their education at VMI."
The agreement and negotiated policy changes, when implemented, are designed to ensure that cadets and employees can fully participate in VMI's programs in a safe educational environment.
In addition, the revised marriage and parenthood policy allows pregnant cadets to remain enrolled in VMI as long as they are able to perform their duties and provides them with the same opportunity to take medical leave as cadets with other temporary medical conditions. The new policy also permits parenting cadets to remain at VMI as long as the cadets have made arrangements for the child's custody, care and support.
VMI committed to initiate or continue the following additional actions:
- Develop and implement for the 2014-2015 academic year a unified policy on sexual harassment and sexual assault, for OCR's review and approval, to ensure the prompt and equitable resolution of complaints from both cadets and employees.
- Submit to OCR for review of compliance with Title IX the documentation of all sexual harassment and sexual assault complaints, including investigative files and findings, for the 2014-2015 academic year.
- Conduct annual assessments of the climate for cadets, faculty and staff concerning sexual harassment and sexual assault.
- Require the Cadet Equity Association to identify strategies for ensuring that cadets understand their rights under Title IX and know how to report possible violations; and identify strategies for the prevention of sexual harassment and sexual assault.
- Annually assess the effectiveness of efforts to prevent and address sexual harassment and sexual assault.
- Provide annual training for staff and cadets who are directly involved in reporting, processing, investigating and resolving these complaints.
- Provide annual training to cadets, faculty and staff on identifying and reporting sexual harassment and sexual assault, including mandatory group sessions for cadets on sexual assault, bystander intervention and the connection between alcohol use and sexual assault.
- Revise its tenure and promotion policies to clarify the role of the dean of the faculty and to specify the sources of information upon which the dean may base his recommendation to the superintendent concerning candidates for tenure and promotion.
OCR will closely monitor implementation of the agreement and the negotiated policy changes to ensure that the commitments are implemented in a timely and effective manner and that they result in an equal and nondiscriminatory environment for female cadets and employees.
Wednesday, April 30, 2014
This from the Office for Civil Rights:
The U.S. Department of Education’s Office for Civil Rights (OCR) today released new guidance describing the responsibilities of colleges, universities and public schools to address sexual violence and other forms of sex discrimination under Title IX of the Education Amendments of 1972.
The guidelines, highlighted by the White House Task Force to Protect Students from Sexual Assault’s new report released earlier Tuesday, provide greater clarity about the requirements of Title IX around this critical issue – as requested by institutions and students.
“For far too long, the incentives to prevent and respond to sexual violence have gone in the wrong direction at schools and on college campuses,” said U.S. Secretary of Education Arne Duncan. “As interpreted and enforced by the department, Title IX and other federal laws are changing these incentives to put an end to rape-permissive cultures and campus cultures that tolerate sexual assault.”
Included in today’s document are examples of proactive efforts schools can take to prevent sexual violence and remedies schools may use to end such conduct, prevent its recurrence, and address its effects. The frequently asked questions examine critical issues, including when schools should respect students’ request for confidentiality, when schools should take immediate steps to protect students who complain about sexual violence from the alleged perpetrator and potential retaliation, and how to determine whether sexual violence occurred and the appropriate remedies for such violence. The guidance also clarifies that its terms apply to all students, including lesbian and gay students, transgender students, and undocumented students.
“Our federal civil rights laws demand that all students – women and men; gay and straight; transgender or not; citizens and foreign students – be allowed to learn and participate in all parts of college life without sexual assault and harassment limiting their opportunities,” said Catherine E. Lhamon, assistant secretary for civil rights. “The Office for Civil Rights stands ready to enforce this core principle to ensure all students’ safety in schools.”
OCR issued groundbreaking guidance on the issue of sexual violence and Title IX in 2011, and today’s guidance - “Questions and Answers on Title IX and Sexual Violence” – further clarifies and expands on that work. The guidance can also be found at NotAlone.gov.
Thursday, March 27, 2014
Janet Hyde et al. have completed a new meta-analysis of single sex education research, The Effects of Single-Sex Compared With Coeducational Schooling on Students’ Performance and Attitudes: A Meta-Analysis, which was published in the Psychological Bulletin last month. To date, it is the largest and most comprehensive study of its type. Hyde states: "We looked at 184 studies, representing the testing of 1.6 million students in grades K-12 from 21 nations, for outcomes related to science and mathematics performance, educational attitudes and aspirations, self-concept and gender stereotyping. From these, we selected 57 studies that corrected for factors like parental education and economics, which are known to benefit children's school performance." They found that most of schools' claims on behalf of single-sex education are not supported by the research:
- "One claim of single-sex schooling advocates is that, for girls, it will improve math-science performance because they are not mixed with boys who, it's claimed, dominate the classroom. But there is not any advantage, if you look at the controlled studies."
- "The claim that boys do better verbally in single-sex schooling, because they get squelched in a coed setting, did not hold up. And the claim has been made that girls will develop a better self-concept, but again there is no evidence for that."
- "There has been some thinking that this would help ethnic minority boys, but we did not find enough studies covering that topic."
They found the research more consistently showed the harms of single sex-education. "There is a mountain of research in social psychology showing that segregation by race or gender feeds stereotypes, and that's not what we want. The adult world is an integrated world, in the workplace and in the family, and the best thing we can do is provide that environment for children in school as we prepare them for adulthood."
These findings spell legal trouble for the 500 or more districts currently operating some form of single sex education. Supreme Court precedent and federal regulations requite single sex education to be supported by an important government interest. One would be remedying past discrimination, the other improving educational outcomes. Most schools claim the latter, which this study undermines. Nonetheless, a recent story in the Atlantic reports that single sex education has been making somewhat of a comeback. It explores the heated politics on both sides of the issue.
Wednesday, March 12, 2014
7th Circuit Rules that Hair Grooming Codes Applied Only to Male Student Athletes Violate Equal Protection Clause and Title IX
The Seventh Circuit reconsidered some of its earlier precedent last week and held that a school’s policy requiring male basketball players wear their hair cut above their ears violated the equal protection clause of the Fourteenth Amendment and Title IX of the Education Amendment Acts of 1972. The 3-1 panel decision in Hayden v. Greensburg Cmty. Sch. Corp., No. 13-1757 (7th Cir. Feb. 24, 2014), is one of the circuit’s few school cases addressing hair length in decades, prompting questions whether its older grooming code holdings survive Price Waterhouse.
In the case, the coaches of the male basketball and baseball teams at the public high schools in Greensburg, Indiana, required players to keep their hair cut short to promote “team unity” and a “clean-cut image.” One basketball player, A.H., wished to wear his hair longer, saying that he did not “feel like himself” with shorter hair. A.H.’s parents, the Haydens, sued on behalf of their son claiming that the school’s hair grooming code “intruded upon their son’s liberty interest in choosing his own hair length, and thus violates his right to substantive due process, and [ ]… because the policy applies only to boys and not girls wishing to play basketball, the policy constitutes sex discrimination.” The 7th Circuit found for the school district on the substantive due process claim. The court found that A.H.’s hair length was not a fundamentally protected right under Glucksberg, but instead a “harmless liberty,” where “the government need only demonstrate that the intrusion upon that liberty is rationally related to a legitimate government interest." The Haydens, the court concluded, failed to show that the hair-length policy failed rational-basis review. The circuit court reversed, however, the district court’s finding that the Haydens did not make out a prima facie case of discrimination. The hair length policy for the male basketball and baseball team members did not apply to male athletes in other sports and did not apply to female athletes at all, and the circuit court noted, “there is no facially apparent reason why that should be so. Girls playing interscholastic basketball have the same need as boys do to keep their hair out of their eyes, to subordinate individuality to team unity, and to project a positive image. ... Given the obvious disparity, the policy itself gives rise to an inference of discrimination.” Finding “no rational, let alone exceedingly persuasive, justification has been articulated for restricting the hair length of male athletes alone,” the court remanded the case to the lower court to determine appropriate relief on the Haydens’ equal protection and sex discrimination claims. Read Hayden v. Greensburg Cmty. Sch. Corp., No. 13-1757 (7th Cir. Feb. 24, 2014) here.
Friday, March 7, 2014
The Office for Civil Rights has completed its compliance review of Indianapolis Public Schools and found a violation of Title IX in regard to its athletics program. OCR's resolution letter to the District is a model in terms of applying the three prong standard. A district is in compliance if it can show a) proportional participation in sports, b) a continuing history of program expansion, or c) that current offerings meet student interest and ability. The letter sets out and applies each very clearly and could easily be used to teach the subject matter in class.
On the first prong, OCR found that one of the district's high schools was in compliance, but the rest were not. Girls are 50.5% of the overall student population, but only 35.5% of the student athletes. To the district's defense, it is rare that an institution meets the first prong, and that one of the district's high schools did is noteworthy.
On the second prong, the district's athletic programs had been stagnant for some time and, thus, there was no history of efforts to expand offerings in ways that might have improved the disparity.
On the third prong, "OCR considers whether there is (a) unmet interest in a particular sport; (b) sufficient ability to sustain a team in the sport; and (c) a reasonable expectation of competition for the team in the school’s normal competitive region. If all three conditions are present, then OCR will find that the school has not fully and effectively accommodated the interests and abilities of the underrepresented sex." The district, however, had made no attempt to assess student interest and, thus, could not avail itself of this prong either. In short, the second and third prongs provide schools with a "safe harbor" for disparities, but they have to do something to take advantage of this safe harbor. Indianapolis had done nothing.
Beyond the raw number of opportunities offered, OCR also found evidence of qualitative inequalities, with the district affording different resources and support to those female programs that were available. In particular, it found inequalities in equipment and supplies and the scheduling of games and practices.
As a result, the district entered into a resolution agreement with OCR that provides:
- the District will provide participation opportunities for girls and boys . . . that effectively accommodate the athletic interests and abilities of both sexes. . . . In particular, the District will conduct a comprehensive assessment during the 2013-2014 school year to determine whether female students (who are the underrepresented sex in the District’s athletics program) have unmet athletic interests and abilities. . . . If through the assessment, the District identifies a sport or sports in which there is sufficient but unmet interest and (if applicable) ability of female students to participate at the interscholastic level at a particular high school, the District will add athletics opportunities (including new sports or new levels of existing sports by the next competitive season) at the high school(s) until such time as either (1) the high school is fully and effectively accommodating the expressed interests and abilities of female students (i.e., there remains no unmet interest and ability); or (2) the participation rate for female students in the high school’s interscholastic athletics program is substantially proportionate to their rate of enrollment at the high school. . . .
- In addition, during the 2013-2014 school year, the District will develop a plan to ensure that it provides equal athletic opportunities . . . for members of both sexes in the provision of locker rooms, practice and competitive facilities . . .
- Finally, the District will create during the 2013-2014 school year a comprehensive policy, subject to OCR’s review and approval prior to implementation, to regulate booster club funding and any other private donations flowing into the athletic programs at each high school to ensure that if booster clubs or other outside sources provide funding that results in disparities in benefits and services favoring athletes of one sex over the other sex, then the District will take action at the high school to ensure that the benefits and services are equivalent for both sexes.
Friday, January 31, 2014
Maine Supreme Court Issues Monumental Decision in Favor of Transgendered Student's Right to Use Bathroom of Choice
A student in Maine has secured a huge victory for transgendered students. Susan Doe, a transgendered student, who is biologically male, but identifies as female, had been denied access to the girl's bathroom at her middle school. The Maine Supreme Judicial Court has held that she has a right to use the girl's restroom. The decision is based on Maine's Human Rights Act, which provides:
It is unlawful public accommodations discrimination, in violation of this Act . . . [f]or any public accommodation or any person who is the . . . superintendent, agent, or employee of any place of public accommodation to directly or indirectly refuse, discriminate against or in any manner withhold from or deny the full and equal enjoyment to any person, on account of . . . sexual orientation . . . any of the accommodations . . . [or] facilities . . . of public accommodation . . . .
The court, however, was careful to write a decision that was tailored to Susan's specific facts, which included a clearly documented gender identity and a past acceptance by the school of that identity. The Court wrote:
we emphasize that in this case the school had a program carefully developed over several years and supported by an educational plan designed to sensitively address Susan’s gender identity issues. The determination that discrimination is demonstrated in this case rests heavily on Susan’s gender identity and gender dysphoria diagnosis, both of which were acknowledged and accepted by the school. The school, her parents, her counselors, and her friends all accepted that Susan is a girl.
Thus, we do not suggest that any person could demand access to any school facility or program based solely on a self-declaration of gender identity or confusion without the plans developed in cooperation with the school and the accepted and respected diagnosis that are present in this case. Our opinion must not be read to require schools to permit students casual access to any bathroom of their choice. Decisions about how to address students’ legitimate gender identity issues are not to be taken lightly. Where, as here, it has been clearly established that a student’s psychological well-being and educational success depend upon being permitted to use the communal bathroom consistent with her gender identity, denying access to the appropriate bathroom constitutes sexual orientation discrimination in violation of the MHRA.
While carefully crafted, this language seems more directed toward warding off open access to bathrooms for anyone who wants it, rather than limiting the rights of other transgendered students facing problems like Susan's.
Many other districts across the nation have similarly been struggling with how to accomodate transgendered students. This decision should provide a helpful example.
Thursday, January 30, 2014
Robert Marucci, an 18-year-old high school student, in Florida was allegedly suspended for his participation in gay pornography. Marruci states that he started working in the industry to help his mother pay the bills. Apparently, the family has fallen on hard times and his work does not violate any law. Regardless, when other students at his school learned of his work, he indicates he was bullied and threatened. If the school knew of and did not respond to this bullying, it violated Title IX's prohibitions on sexual harassment. See Davis v. Monroe County, 526 U.S. 629 (1999). Marucci's mother says that this is exactly what the school did. Strike one against the school.
What the school did do was suspend Marucci for ten days. His mother says he was "expelled due to his explicit lifestyle career.” The school indicates that it suspended him for "possible threats" he had made. The devil is in the detail, but "possible threats" sounds vague. If it is only "possible" that he has made threats to other students, the school lacks a basis to suspend him. At best, if the threats were extremely serious, the school could have removed him temporarily to investigate (per a narrow exception in Goss v. Lopez). This does not appear to be the school's claim. Sounds like strike two against the school.
If the school, in fact, removed him for his off-campus lifestyle choice, it may have engaged in another Title IX violation, as well as Free Speech. Strike three (and four, I suppose).
Monday, December 16, 2013
The recent PISA results (Programme for International Student Assessment) show no statistical difference between boys and girls in math or science in the United States. That finding knocks another leg out from under the rationale for single sex education, even though some other assessments like NAEP and AP exams have shown differences in recent years. The explanation for the differening results between the assessments is unclear. But where girls have underperformed, Carol Dweck, a Stanford psychologist, attributes it to a differential "mindset" about their ability to perform well on the assessment. That is consistent with the PISA report, which found that "[E]ven when girls perform as well as boys in mathematics, they tend to report less perseverance, less openness to problem-solving, less intrinsic and instrumental motivation to learn mathematics, less self-belief in their ability to learn mathematics and more anxiety about mathematics than boys, on average; they are also more likely than boys to attribute failure in mathematics to themselves rather than to external factors."
A differential mindset is not, as one might assume, a reason to separate boys and girls, particularly if that mindset is a product of social inputs. More bluntly, boys' and girls' different mindsets appear to be a function of the social stereotypes that they internalize, not innate differeces. Is the point of single sex education to unravel those stereotypes or is it a concession to the notion that there are innate differences underlying stereotypes? The PISA results strongly challenge the innate differences explanation and I am unaware of single sex programs systematically focusing on eliminating stereotypes. In fact, single sex education would seem to be no better suited to eliminate gender stereotypes than racially isolated schools are to eliminate racial stereotypes.
Monday, November 18, 2013
Last week, La Feria School District in Texas told Jeydon Loredo that his picture would not appear in the school's yearbook. Jeydon grew up female but identifies as male. He posed for his high school senior picture in a tuxedo. The school's rationale for excluding him was its dress code. Jeydon's mother said that officals told her that her son's picture in a tuxedo "goes against the community standards.” They further indicated that “they were a conservative school and that (outfit) wouldn’t follow the school policy as far as their dress code.” If he wanted to be included in the yearbook, he would need to wear feminine clothing.
The Southern Poverty Law Center (SPLC) came to Jeydon's defense and threatened to sue the district for violating his First Amendment, Equal Protection, and Title IX rights. After a meeting with the SPLC, the district changed its position and will include Jeydon's picture in a tuxedo in the yearbook. One wonders whether the district knew it was violating the law to begin with and thought it could get away with it or if it only came to realize the err in its ways after speaking with SPLC. Either way, this story shows a lot of education around these issues is necessary.
Tuesday, November 12, 2013
A recent survey of 282 colleges and 44 college administrators found that 67% of students experienced harassment on campus and 61% witnessed another student being harassed. Those students reported that the harassment had significant effects on their education. Forty-six percent said harassment caused disappointment with college experience. Twenty percent said harassment interfered with their concentration in class. And 23% said harassment caused them to miss class and other campus activities. Only 17% of students, however, actually reported the harassment to a college officials. Fifty-five percent of college administrators cite the cause of the low reporting rates as begin poor reporting and enforcement mechanism.
The survery is not nearly as nuanced as the ones conducted by the American Association of University Women (AAUW), but its results are largely consistent with the AAUW's last report in 2005, Drawing the Line: Sexual Harassment on Campus. As some may recall, reports of this sort were important in prompting the Supreme Court to extend Title IX liability to schools for on-campus harassment. Those cases, however, addressed elementary and secondary schools. Given the different and decentralized context of college campuses, the problem of higher education harassment does not easily mess with the rules developed for elementary and secondar schools. These persistently high numbers in college suggest a different approach is necessary (not that the problem has been solved in elementary and secondary schools).
Thursday, November 7, 2013
In a press release yesterday, the Office for Civil Rights disclosed its findings and final resolution regarding sexual harassment and assault in West Contra Costa Unified School District in Richmond, California.
Evidence included verbal and physical conduct by students, including sexual assaults, unwelcome touching, demands for sexual favors, and the use of sexually derogatory language created a hostile environment at district schools. OCR also found that students had been subjected to sexual harassment by employees. In addition, the district was not in compliance with the procedural requirements of Title IX, which include adoption and publication of grievance procedures providing for prompt and equitable resolution of complaints of sex discrimination and designation of at least one employee to coordinate compliance with Title IX.
“I am dismayed by the prevalence of sexual harassment and assault occurring at elementary and secondary schools in West Contra Costa,” said Catherine E. Lhamon, assistant secretary for civil rights. “Although the district frequently reported known incidents of sexual assaults to law enforcement for prosecution, the district did not fully comply with its legal obligations under Title IX to take immediate actions to eliminate the harassment, prevent its recurrence, and address its effects, and to put proper procedures and protocols in place. OCR stands ready to work with the district to help it realize its commitments to preventing sexual harassment and sexual violence in its schools through satisfaction of this agreement.”
Although this sounds like an easy case, it comes on the heals of various other significant agreements I have noted in recent months. Credit goes to OCR for what appears to be a more agressive approach to enforcement during Obama's second term.
More details on the agreement here.
Monday, October 21, 2013
Wednesday, October 16, 2013
I still have not placed my fingers on the pleadings, but I was able to speak with Erin Cox’s attorney, Wendy Murphy. For those who missed it, yesterday I posted on Massachusetts high school that suspended (from athletic opportunities) a student who drove to a party to come to the aid of an intoxicated friend who needed a ride home. The initial story was that the school suspended Cox for violating its zero tolerance policy in regard to drugs and alcohol even though Cox was not intoxicated. The police were there when she arrived and released her to go home because she had not been drinking. She later put forward evidence to verify her story.
The school suspended her anyway and she brought suit in a local state district court to enjoin the suspension. Thinking it would be an open and shut case of mistake, Cox’s mother appeared without an attorney. The school board, however, arrived with its attorney, who alleged that the school suspended her because she was arrested. The initial basis for suspension, as I understood it, was that she had violated the zero tolerance policy on alcohol. According to school’s student handbook, student athletes are forbidden from “knowingly being and remaining in the presence of other minors using alcohol or illegal drugs or controlled substances.” But since the police were there and blocked her from “being at the party,” suspending her on that ground seems problematic. The school must have realized the logical problem at some point because in court it defended on slightly different grounds. The school’s attorney asserted that Cox had been arrested at the party, suggesting that the arrest was a basis for suspension. At that point, the mother protested that the daughter was not arrested and, when the other side pressed its point, she said they were lying.
Wednesday, October 9, 2013
With at least 116 single-sex public schools across the country and 390 more single-sex classes in some subjects, Professors David Cohen (Drexel/Earle Mack) and Nancy Levit (UMKC) argue that gender-segregated education is long due for review by the U.S. Supreme Court. In their new article, Still Unconstitutional: Our Nation's Experiment with State Sponsored Sex Segregation in Education, the authors present their case that “sex segregated education violates the Equal Protection Clause, it has no “exceedingly persuasive justification” and instead exacerbates “outdated stereotypes” while “create[ing] [and] perpetuate[ing] the legal, social, and economic inferiority of women.”” An excerpt from the introduction to Still Unconstitutional: Our Nation's Experiment with State Sponsored Sex Segregation in Education (Seton Hall Law Review, Vol. 44, 2014, forthcoming) is below:
The United States is seven years into an experiment with segregation in public education. This experiment, unlike the race segregation found unconstitutional in Brown v. Board of Education, is based on sex segregation. The experiment has benefitted from a peculiar alliance of political forces: conservatives, who have long believed that separation of the sexes is natural and appropriate, and some liberal groups, who see separatism either as a tool of liberation or as the lesser of bad alternatives compared to a flawed coeducational system. It resonates with a society that believes that men and women (and thus boys and girls), though equal, are inherently different. However, with seven years of experience with federally-sanctioned sex-segregated public education under the country’s belt, the arguments against sex segregation in public schools are even stronger than they were before the experiment began. Like the inherently unjust system of de jure race segregation that existed in this country, the current experiment is also unconstitutional.
In this article, we argue that this experiment must come to an end because it is educationally unsound, fundamentally discriminatory, and patently unconstitutional. We reach these conclusions by first reviewing the events that have led to state endorsed sex segregation in this country, the resulting expansion of such educational opportunities, and the legal developments since then. We break down buzzword justifications such as “choice” and “diversity” and highlight new research into brain differences (or lack thereof), educational outcomes, and sex stereotyping. In the process, we hold this expansion to the rigorous heightened scrutiny test employed by the Supreme Court for sex classifications and find that, like segregation based on race, segregating students based on sex violates the Equal Protection Clause.
Either OCR has been engaged in vigorous enforcement and negotiation over the past few months or it has been doing a better job of working the media to get the news out. In recent weeks and months, I posted on OCR settlement agreements eliminating single sex education, expanding athletic opportunities for females, and ensuring racially equal access to AP classes. All of these settlements were important in their own right and should provide good precedent in subsequent complaints.
Now, last week OCR announced another settlement in regard to equal access to athletics with the District of Columbia Public Schools. This agreement, however, is not quite as remarkable as the others. This agreement does not require DCPS to expand opportunities for females. Rather, it requires the district to closely monitor student interest, participation and disparities. In the short term, it must administer a student interest survey and, if it finds that females are under-served, it must take action to increase opportunities or demonstrate that they already receive proportional opportunities. In other words, as Neena Chaudry of the National Women's Law Center says, it is a "good first step," but she cautions that there are also inequalities in coaching and athletic facilities that the neither the settlement agreement nor the district addressed.
As a matter of procedure, OCR seems to have done a good job of boxing the district in by agreeing in advance to act upon the survey results. On the other hand, I am sure advocates remain anxious regarding whether the district will follow through in good faith. The available data seems to already show significant disparities, which begs the question of why the district is taking steps to delay action, rather than agreeing to do so now. One possibility is that the survey mechanism allows the district to save face by not admitting past error. It also gives the district the opportunity to appear that it is immediately acting once it discovers inequities in the survey.
Monday, October 7, 2013
The Young Conservatives of Texas appear to be displeased with the outcome of Fisher v. Texas, which upheld the use of race in higher education admissions (although it indicated it wanted a more rigorous narrowly tailored prong review). The Young Conservatives, in a repeat performance of the 2011 diversity bake sale at Berkeley, CA, held a bake sale in which whites would be charged the highest price for brownies at $2, followed by Asians at $1.50, Latinos at $1, Blacks at 75 cents and Native Americans at 25 cents. Women of all races and ethnicities received an additional price break of .25 cents.
A few points of note. First, the struggling economy has held the cost of affirmative action in check. These prices are the exact same ones offered at Berkeley in 2011. I only wish the same were true for potato chips and fountain sodas.
Second, the price differentials are interesting. Conservatives seem to think affirmative action costs whites more than any one else and that everyone but white males benefits from affirmative action. I am skeptical of the notion that it "costs" any racial group anything. Regardless, the young conservatives seem to miss the fact that there are few, if any, higher education diversity programs that treat Asians' ethnicity as a plus factor. In other words, even if the young conservatives general premise is true, I am afraid they are selling brownies too cheaply to Asians. Asians should make a run on the brownies and hold out until the next sale, when surely the average price of brownies will increase, along with a sharp increase on the price for Asians.
Finally, I think they really missed the boat on gender. State universities have more often, in recent years, tilted the scales in favor of men, since women tend to outperform men in high school, particularly in terms of GPA. Remember Johnson v. Board of Regents of the University of Georgia, 263 F.3d 1234 (11th Cir. 2001), where the University was pressed to give up its affirmative action for white males in the state. While formal boosts for white males have waned for obvious reasons, my understanding is that some universities still employee certain procedures that discount high school GPAs so as to help enroll a slightly higher number of white males and prevent women from overrunning the campus. So it seems men should be getting the 25 cent discount, not women. Then again, maybe the young heterosexual male conservatives who got into the University of Texas support affirmative action for women. The problem is that, given the number of women at flagship universities, the Young Conservatives may go bankrupt unless they are keeping a very close eye on their costs.
Tuesday, October 1, 2013
Thursday, September 26, 2013
Protecting and preventing sexual violence has been one of the ED’s priorities this year, notably with the agency’s “Dear Colleagues” letter sent in the spring. However, activists continue to have serious concerns about colleges’ treatment of rape victims. Last week, the LA Times reported that Occidental College quietly settled with at least 10 of 37 sexual assault victims who signed a federal complaint about rape on campus. The disturbing part of the settlement is that in addition to payments, Occidental allegedly barred the complainants from any further participation in the Occidental Sexual Assault Coalition, the campus group that organized the campaign that resulted in the federal investigation. The attorney representing the ten complainants, Gloria Allred, said that she could not speak about the settlement, but the Occidental professor who organized the federal complaint is speaking out against its terms. Danielle Dirks, a criminology professor, told the Times that requiring “the women to remain silent and not to participate in campus activism could have a chilling effect at Occidental.” The settlement, Dirks said, “effectively erases all of the sexual assaults and the college’s wrongdoing.” Investigators from the federal Office for Civil Rights are expected to visit Occidental soon to investigate the complaint. The Tennessean is also running a series about the rape case involving members of Vanderbilt University's football team and steps that the school is taking to stop sexual violence on campus.