Thursday, February 19, 2015
Nearly two years ago, I posted on a bizarre case, Hill v. Madison County School Bd., 2013 WL 3712330 (N.D.Ala.,2013), in which a student had been sexually harassed by another on multiple occasions. The student apparently had harassed several other students as well. The school's solution was purported to catch the harasser in the act, so that it might exact a full punishment on him. Thus, two teachers convinced the plaintiff to agree to the harasser's proposition to meet him in the bathroom. They notified the principal of their plan. The plan, however, went awry because no one came to the bathroom in time. By the time the teachers arrived, the boy had already pulled down the girl's clothes and attempted to have sex with her against her will. She then filed a lawsuit against the district under Equal Protection, Title IX, Substantive Due Process, and state law.
The trial court rejected her claims. The case has finally made its way to the 11th Circuit Court of Appeals. Because the victim is no longer a minor and her identity has gotten out, the media coverage is beginning to heat up. CNN recently conducted an interview with the victim. As my prior post notes, the precedent on these types of cases is very unfavorable to plaintiffs. If every there were a case to create a crack in that precedent, however, this may be the one.
Thursday, February 12, 2015
D.C. Public Schools chancellor Kaya Henderson recently announced an “Empowering Males of Color” initiative and the district's intent to open a single sex high school for boys in 2017. The purpose of the school would be to focus on the unique educational challenges and needs of Black and Latino boys, whose achievement is the lowest in the district. That plan is now drawing serious criticism and scrutiny. D.C. Council member Mary Cheh has requested that the district's attorney general investigate the legality of the program and the school. Chen, speaking of the potential unfairness to girls, explains:
What I’m saying is that you can’t just do for one group what you’re not doing for another. ... Even if their scores are a little bit better, both groups’ scores are abysmal. ... You have to provide substantially equal opportunities to the other group. That’s all I want. I want all of them to be better off.
Michael Myers, of the New York Civil Rights Coalition, then filed his own letter.
Thursday, February 5, 2015
After two years of a steady stream of negative reports, horror stories, and critiques of the higher education system for dealing with sexual assault on campus, Senators Kaine and McCaskill have introduced preventative legislation that does not apply to colleges at all, but just might be a step in the right direction. Rather than address the problem of sexual assault after it happens, they propose to educate public school students in advance. The Teach Safe Relationships Act of 2015 would require that schools' health education curriculum include education on "safe relationship behavior." As a general matter, federal or state legislation that tinkers with public school education to achieve some broader social policy is a bad idea. Religion cases are rife with examples. Politicians too often use students' education as their playground for political ends. This legislation, however, may be the exception to the general rule. The curriculum would directly relate to the experiences students will face and would seek to give them constructive tools for dealing with it. After all, the ultimate solution to sexual assault on college campuses is not a better due process system, but fewer assaults in the first place. More here.
Wednesday, January 28, 2015
Suzanna E. Eckes, Aaron N. Butler, and Natasha M. Wilson's article, Brown v. Board of Education's 60th Anniversary: Still No Cause For a Celebration, 311 Ed. Law Rep. 1 (Jan. 15, 2015), is now on westlaw. The article discusses how far the United States has come in integrating students and how far it has have left to go to achieve the goal of Brown v. Board. The article begins by presenting a history of "civil rights legislation, constitutional protections, and Supreme Court decisions related to racial integration." Next, the authors turn to more recent court decisions signifying the end, or at least the slowing, of integration in schools. The last two sections discuss other types of segregation and the importance of broad diversity in public schools.
Regarding other types of segregation, the authors cite to cases in which schools had segregated students based on "gender, ability, language, religion, and sexual orientation." Since the 2006 amendments to the Title IX regulations "mak[ing] public single-sex educational programs more accessible in public school[,]" the number of single-sex classrooms and schools has been on the rise. As compared to only three single-sex public education programs in 1995, "[t]oday there are approximately 500 schools in 40 states that offer single-sex classes and 90 single-sex public schools in the U.S." In addition to the spread of single-sex schools across the country, public schools have opened to cater to LGBT students. "These schools are designed to serve as safe havens for LGBT students who have been bullied or harassed in their traditional public schools." However, some have argued that, while sparing LGBT students hurtful and damaging harassment, these separate schools may result in unnecessary segregation.
Finally, some school systems also separate students based on disabilities. An investigation conducted by the Office of Civil Rights recently found that one New Jersey school district had placed over 60% of its students with disabilities into "self-contained classrooms." And these instances of segregation are not limited to traditional public schools. Charter school and voucher programs face similar challenges, from "enthocentric or culturally-oriented niche charter schools" leading to greater racial segregation, to private/religious voucher-receiving schools discriminating against LGBT students, students with disabilities, or religious minorities. The authors conclude by presenting evidence of the harms segregation can cause and the need for integration in schools.
Thursday, January 22, 2015
Last year, the Maine Supreme Court upheld a legal challenge by a transgendered student who argued that her exclusion from the girl's bathroom violated Maine's Human Rights Act. On remand, she was also awarded $75,000 in damages. Earlier this month, the ACLU filed administrative complaints with the Department of Education's Office for Civil Rights and the Department of Justice, alleging that a similar exclusion in the Gloucester County Public Schools in Virginia amounts to sex discrimination in violation of Title IX. Because the Maine case was decided on state law, it had no direct impact elsewhere. A positive finding by OCR, however, would prompt change across all states. OCR has been aggressive in enforcing the law under Assistant Secretary Lhamon, but given the new ground this complaint might break, I would expect this complaint to proceed slowly to allow for careful investigation and deliberation.
Friday, January 16, 2015
The Justice Department filed suit against the Chicago Board of Education in late December, alleging that an elementary school principal discriminated against pregnant teachers in violation of Title VII of the Civil Rights Act of 1964. The complaint alleges that, from 2009 to 2012, a principal at a Chicago elementary school lowered the performance evaluations and moved to terminate eight teachers who announced their pregnancies. The principal also made negative comments to and about pregnant teachers at Scammon Elementary, including: “responding to a teacher's announcement of her pregnancy by saying, “I can't believe you are doing this to me. You are going to be out right before [mandatory] testing!;” asking a Scammon staff member if a teacher who had been pregnant was pregnant again; ignoring a teacher after the teacher announced her pregnancy; ignoring a teacher's request to meet regarding her upcoming maternity leave; repeatedly asking a teacher who was nursing and expressing breast milk questions such as, “That isn't over yet?” and “When will you be done with that?”; and stating that a teacher who requested an accommodation to express breast milk complained too much and was too high maintenance.” The complaint filed December 23, 2014, can be found at United States v. Chicago Board of Education, et. al, 2014 WL 7384980 (N.D.Ill.)
Friday, December 12, 2014
SMU Enters Compliance Agreement with OCR to Correct Title IX Violations in Handling Sexual Assault and Harassment Complaints
The U.S. Department of Education, Office for Civil Rights (OCR), released its findings yesterday that Southern Methodist University (SMU) failed "to promptly and equitably respond to complaints, reports and/or incidents of gender and sexual harassment of which it had notice." OCR's investigation letter is here. OCR investigated three complaints by SMU students between June 2011 and March 2013 alleging gender harassment, sexual harassment, and sexual assault. One complaint alleged that SMU violated Title IX when the school failed to appropriately respond to a male student's report that he had been sexually assaulted by another mail student, and that SMU also failed to protect him from the retaliatory actions of the alleged perpetrator’s fraternity brothers and friends. The victim was subjected to taunting and harassment on campus after reporting the sexual assault. SMU did not conduct its own investigation of the complainant’s sexual assault allegation, and the complainant alleges that the school discouraged him from reporting the incident to off-campus law enforcement. A second complaint was from a former SMU employee who alleged that SMU's policies subjected female students to sexual harassment and staff members who complained were retaliated against. Another complaint involved a SMU law student whose law professor referred to her during class sessions and meetings at his home as a “prom/beauty queen,” “hired bimbo,” “bitchy,” “catty,” and “doody blonde." Although SMU investigated the complaint and required the professor to receive sexual harassment training (but did not require the law professor to write a letter of apology to the complainant), OCR noted that SMU never informed the complainant of the results of its investigation. As part of its compliance agreement with OCR, SMU has agreed to:
- Revise and, following the office's review and approval, finalize its "interim" Title IX grievance procedures.
- Create a pocket-sized card for all SMU employees with information about how to support students who report sexual misconduct and a checklist for staff members who may meet with a student to outline their rights and the resources available; clearer protections against retaliation.
- Develop bystander intervention training.
- Develop a procedure for sharing information between the SMU police and the school's Title IX coordinator.
- Notify students and employees about the university's Title IX coordinators and their contact information in its nondiscrimination notice and in other publications.
- Track harassment reports, investigations, interim measures, and resolutions.
- Train staff and students on the revised university policies and procedures.
- Conduct annual climate surveys.
- Reimburse the law student complainant for university-related expenses and counseling.
Wednesday, December 3, 2014
In January, the Maine Supreme Judicial Court has held that Nicole Maines, a transgendered student who is biologically male but identifies as female, has the right to use the girl's restroom. Denying her that right was a violation of Maine's Human Rights Act. Maine's supreme court was the first to ever rule in favor of a transgendered student on this issue.
The case was remanded to the trial court for damages. Yesterday, the court ordered the district to pay Nicole $75,000 in damages. This clear cut victory should serve as serious warning for other districts, at least, in Maine.
Monday, December 1, 2014
Below is the introductory letter and new guidance on single sex education from the Department of Education:
Today, the U.S. Department of Education's Office for Civil Rights (OCR) released guidance for K-12 schools that offer or want to offer single-sex classes. In response to numerous inquiries about the legality of single-sex classes, OCR issued guidance that charts a path for schools on how they can provide boys-only or girls-only instruction while remaining in compliance with civil rights laws.
Over the past year, there has been a tremendous amount of discussion on this blog (e.g., here, here, here, and here) and elsewhere about how schools prosecute and prevent rape, as well as deal with its aftermath. The law applies to all schools that receive federal funds, but the conversation has focused almost exclusively on colleges and universities. Last week, students in Oklahoma revealed how the problem can play out in public high schools.
Three students in Norman Public Schools accused a male classmate of sexually assaulting them. The school acted swiftly to remove the male student from school. The students' complaints, however, are in regard to the environment that developed afterward. They say that the alleged assailant's friends have now begun bullying them and it has not stopped. As a result, they withdrew from Norman High School. Now hundreds of other students have come to the girls defense, stagging a walkout protest last week. Whether there was a hostile environment and the school failed to adequately respond remains to be seen, but these students, like those concerned with curriculum issues in Colorado, have certainly found a way to shine a spotlight on the issue.
Monday, October 20, 2014
The U.S. Department of Education published the final regulations for the Violence Against Women Reauthorization Act of 2013 (VAWA) amendments to the Clery Act today. Below is the Clery Center's summary of college campuses' expanded obligations to report, investigate, and resolve incidents of sexual assault, domestic violence, dating violence, and stalking under the new regulations, which require colleges to:
- agree on the law enforcement agencies that will investigate alleged criminal offenses;
- include statements in campus written policies about sexual assault, domestic violence, dating violence, and stalking;
- provide prevention and awareness programs for incoming students and new employees and provide written information to victims;
- allow victims and accused persons to have an advisor, including an attorney, accompany them to meetings;
- establish procedures to follow when an incident of sexual assault, domestic violence, dating violence, or stalking is reported; and
- set procedures for institutional disciplinary action in cases of alleged dating violence, domestic violence, sexual assault, or stalking;
- disclose in their annual statistics the total number of crimes that were "unfounded”;
- include gender identity and national origin as two new categories of bias for a determination of a hate crime; and
- use updated sex offenses definitions that more closely align with the FBI’s updated definitions and terminology.
Tuesday, October 14, 2014
Justice Department Intervenes in Case of Female Student Who Was Sexually Assaulted While Being Used as "Bait" to Catch Male Student Suspected of Sexual Misconduct
The Department of Justice filed an amicus brief at the Eleventh Circuit Court of Appeals last month in the case of a female special needs student who was used as "bait" to try to catch a male student suspected of sexual misconduct at an Alabama middle school. In the case, a teacher's aide at Sparkman Middle School convinced a 14-year-old female special needs student to agree to a plan to enter a bathroom with a 16-year-old male student with a history of sexual and violent misconduct. According to the plan, other teachers would be present in the bathroom to catch the male student “in the act” of sexual misconduct before anything happened. The plan was devised to gather proof after the school received reports of the 16-year-old trying to convince girls on the school's "special needs corridor" to have sex with him. The school also had some reports of sex attacks by the male student, but the number is unknown as the school had a policy of destroying documentation of reported attacks later found to be "uncorroborated." The female student was initially reluctant to participate in the plan, but was eventually persuaded by a teacher's aide, June Simpson. Tragically, when the female student met the 16-year-old in the bathroom, no teachers were present to intervene, and the student was violently sexually assaulted. Because there was authorities decided that there was no proof of a forcible assault because the female entered the bathroom voluntarily (although the student was found to have anal bleeding and tearing), the male student was not prosecuted. (He was suspended for five days, but later returned to Sparkman.) One school administrator later testified in a federal court that the female student was "responsible for herself" once she entered the bathroom.
The female student withdrew from school and sued the Madison County school district in federal court. Last December, the district court granted summary judgment for the school district, concluding that school administrators lacked actual notice of sexual harassment and misconduct by the male student and that administrators were not deliberately indifferent to male student’s history of sexual and violent misconduct under Title IX. The student appealed. The DOJ has intervened as amicus on appeal challenging the district court's findings. In its brief, the DOJ takes the school system to task for its policy of destroying records of proven offenses by a student after the close of a current school year and all complaints found to be unsubstantiated regardless of when they occurred. "As a result," the DOJ brief notes, "school administrators could not consider patterns of prior accusations and were forced to rely largely on memory, which they admitted was “flawed” when deciding appropriate corrective measures for repeat offenders[.]" Read the DOJ brief here.
Monday, October 13, 2014
Last week, the Gay-Straight Alliance Network and Crossroads Collaborative released a set of reports on bullying and harrassment based on sexual orientation in schools. The reports also addressed whether LGBTQ are subject to disparate discipline. Unfortunately, bullying based on sexual orienation is not new, but what was surprising was that LGBTQ youth are subject to disparate discipline and often blamed for their victimization. A set of policy recommendations by the Advancement Project accompanies the reports.
Tuesday, October 7, 2014
New Legal Scholarship: The Business of Charter Schools, NCLB Waivers, Expanding Vouchers, and Transgendered Student Legislation
The new issue of BYU's Education and Law Journal is out and includes the following articles:
Patrick J. Gallo, Jr., Reforming the "Business" of Charter Schools in Pennsylvania, 2014 B.Y.U. Educ. & L.J. 207 (2014).
Gallo addresses the current state of the charter school system in Pennsylvania and the need for reform. Summarizing some of the serious issues facing the charter system in Pennsylvania, the author states:
There are now more than 175 charter schools in Pennsylvania with over 105,000 students and approximately 44,000 more students on waiting lists. In addition, roughly 25 percent of the student population in the Philadelphia School District attend public charter schools. Moreover, government financed charter schools present a significant opportunity for profiteers looking to cash in on this modern day "gold rush," and, with very little oversight, Pennsylvania public charter schools have become fraught with "chicanery and greed . . . [,] excessive executive salaries . . . [,] nepotism, and [dubious] financial and real-estate transactions.
Thursday, October 2, 2014
In a survey of 982 females at the University of Oregon, ten percent indicate having been raped during their time at the school. Very few, however, reported the incident to a university official. I can't say anything more than that those numbers are mind boggling, and the fact the University of Oregon was not on the Department of Education's list of 55 universities and colleges to investigate suggests that there was a flaw in the Department's identification method or Oregon's numbers are not as egregious as other schools. I tend toward the latter explanation, which is even more disturbing. More here.
Tuesday, September 30, 2014
California is now the first state to adopt an affirmative consent standard in regard to sexual assault claims. This change comes "as states and universities across the U.S. are under pressure to change how they handle rape allegations." The bill was originally introduced by Senator Kevin de Leon, who hopes this new law will begin a paradigm shift across the country as to how colleges and universities prevent and respond to sexual assault reports. Now, "[r]ather than using the refrain 'no means no,' the definition of consent under the bill requires 'an affirmative, conscious and voluntary agreement to engage in sexual activity.'" Thus, according to the legislature, under the new law "silence or lack of resistance does not constitute consent. Under the bill, someone who is drunk, drugged, unconscious or asleep cannot grant consent." The bill also requires counseling and health services for victims, as well as training for the faculty and staff who handle these reports, so that they do not inadvertently overreach when interviewing victims. Moreover, support for this bill came from both sides of the aisle, with no opposition in the Senate. In the general assembly, some Republicans questioned whether statewide legislation is really the best way to address the issue. Nevertheless, the bill passed and was signed into law by the governor on Sunday.
Wednesday, September 24, 2014
Tuesday, the NAACP Legal Defense Fund and the National Women's Law Center released a critical report on African American Girls and Education. They offer this summary:
The report, titled Unlocking Opportunity for African American Girls: A Call to Action for Educational Equity, is aimed at eliminating barriers that are rooted in racial and gender discrimination so that African American girls and other children of color have meaningful access to equal educational opportunities. The report first provides a historical perspective that captures the critical role that African American women played in desegregating schools and ensuring that all students, irrespective of race, have access to a high quality education. The report then discusses how racial and gender stereotypes permeate classrooms today; other barriers that African American girls face; and academic indicators that show African American girls are being left behind. Finally, the report sets forth a series of recommendations for eradicating the barriers that African American girls and other students of color face.
Tuesday, September 23, 2014
In Ollier v. Sweetwater Union High School District, 2014 WL 4654472 (9th Cir. Sept. 19, 2014), five female students from Sweetwater Union High School District brought suit, alleging that the school district unlawfully discriminated against them based on their sex in violation of Title IX of the Education Amendments of 1972 and the Equal Protection Clause of the Fourteenth Amendment. Specifically, "[t]hey alleged that Sweetwater 'intentionally discriminated' against female students at Castle Park High School ('Castle Park') by 'unlawfully fail[ing] to provide female student athletes equal treatment and benefits as compared to male athletes.'" The plaintiffs claim that the school continued to discriminate despite persistent student complaints and protests. Plaintiffs identified several inequalities, including
(1) practice and competitive facilities; (2) locker rooms and related storage and meeting facilities; (3) training facilities; (4) equipment and supplies; (5) transportation vehicles; (6) coaches and coaching facilities; (7) scheduling of games and practice times; (8) publicity; (9) funding; and (10) athletic participation opportunities.
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.