Monday, August 22, 2016
Federal Court Blocks Department of Education's Transgender Rules, Increasing the Odds of the Supreme Court Taking Up the Issue
A federal district court in the Northern District of Texas just blocked the Obama Administration from enforcing its interpretation that Title IX ensures transgender students the right to use bathroom facilities consistent with their gender. On Sunday, in Texas v. United States, the district court wrote:
The Court finds that Plaintiffs have shown a likelihood of success on the merits because: (1) Defendants bypassed the notice and comment process required by the APA; (2) Title IX and § 106.33’s text is not ambiguous; and (3) Defendants are not entitled to agency deference under Auer v. Robbins, 519 U.S. 452 (1997).
The court further explained:
Thursday, July 21, 2016
New Transgender Discrimination Case Against Wisconsin School District Could Be Quick Repeat of Grimm or Present Several Wrinkles
Ashton Whitaker, A transgender high school student in Wisconsin, has filed suit against Kenosha School District. He alleges that the district has denied him access to male restrooms consistent with his gender and continues to refer to him by the female name on his birth certificate. He argues that this treatment violates Title IX and the U.S. Constitution. His factual and legal claims are nearly identical to those in Grimm v. Gloucester, in which the Fourth Circuit earlier this year sided with the student. Whitaker's case could be a simple repeat or move the law and courts in new directions.
Will the school district contest the question of whether Title IX protects transgender students in access to restrooms or will it simply contest Whitaker's version of the facts? If it concedes the facts and only contests the law, Grimm is the only case on point at the moment. Thus, the district court would a) rule quickly in favor of Whitaker, b) affirmatively counter the reasoning in Grimm or c) take the route the 6th Circuit did in the gay marriage cases, holding that until the Supreme Court or its own circuit speaks, it will rule in favor of the district. The same options would presumably exist for the Seventh Circuit Court of Appeals in reviewing the district court.
Option A would create two circuits firmly aligned in favor of transgender students and make the grant of cert in Grimm or Whitaker's case less likely (Grimm is currently pending before the Supreme Court). Option B or C would eventually create a circuit split and, even if the Court denies cert in Grimm, make a grant of cert in Whitaker's case more likely a couple of years from now.
Also interesting in Whitaker's case will be questions of qualified immunity. The district officials may argue that regardless of what the law requires moving forward that the law was unclear at the time they acted. This is after all new law. This was attempted in several cases dealing with sexual orientation claims over the past decade or two. On the other hand, the Office for Civil Rights has held a firm position for longer on this issue. And in Title IX cases, the Court has tended to rely heavily on OCR policy guidance to provide the necessary notice of illegality to school districts.
One thing, however, is clear: Whitaker is represented by exceptional counsel. Relman, Dane & Colfax has taken his case. The firm has been nationally recognized for its civil rights work and victories for decades.
Friday, July 8, 2016
Texas, Joined By Eleven States, Seeks Nationwide Injunction To Block DOE's Transgender Anti-discrimination Policy
Texas Attorney General Ken Paxton is seeking a nationwide preliminary injunction to stop the enforcement of the Department of Education's Dear Colleague letter to schools directing them not to discriminate against transgender students, particularly in students' choice of bathrooms. Paxton, along with Alabama, Arizona, Georgia, Kentucky, Louisiana, Mississippi, Oklahoma, Tennessee, Utah, West Virginia, and Wisconsin, applied for the injunction on Tuesday asking the Northern District of Texas to enjoin the DOE's transgender-inclusive policy nationwide because the policy applies all of the nation's public schools. To persuade the district court that it has to the power to enjoin the policy nationwide, Paxton is relying on the Fifth Circuit's ruling last year granting injunctive relief that halted enforcement of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which provided for legal presence for illegal immigrants who were parents of citizens or lawful permanent residents. See Texas v. United States, 809 F.3d 134 (5th Cir. 2015), as revised (Nov. 25, 2015), cert. granted, 136 S. Ct. 906 (2016). The states' preliminary injunction motion is here and the original report at the Texas Tribune is here.
Tuesday, June 28, 2016
Charlotte-Mecklenburg Schools (CMS) announced a new regulation last week advising principals this fall to honor students' choices about their gender identity in restrooms, locker rooms, yearbooks, and graduation ceremonies, school officials told the Charlotte Observer. CMS said that the new guidance follows the Fourth Circuit's holding in G.G. v. Gloucester County Sch. Bd. (see our coverage here) and is not intended to defy North Carolina's law HB2, which, among other things, requires students to use public school restrooms and locker rooms based on the gender on their birth certificates. In G.G., the Fourth Circuit held that the U.S. Dept. of Education's interpretation that Title IX applies to transgender students was entitled to deference in light of the ambiguity of the meaning of "sex" in the statute. The new CMS regulation will require schools to identify and address students according to their preferred identity and will eliminate "gender-based activities that have no educational purpose, such as having a girls’ and boys’ line to go to recess."The Charlotte-Observer's story is here.
And speaking of G.G. v. Gloucester County Sch. Bd., on remand from the Fourth Circuit, last week the district court granted the preliminary injunction to allow the plaintiff to use the boys' restroom at Gloucester High School. The district court did not extend that access to any other school facilities, such as locker rooms, because the plaintiff's suit only sought bathroom access. The June 23 order of the Eastern District of Virginia is here.
Tuesday, May 24, 2016
A new lawsuit against against a school district just outside Cincinnati, Ohio, raises several interesting factual and legal claims. Unfortunately, they are bound up in incredible tragedy. According to the complaint, Emilie Olsen, a middle school student, committed suicide following an extended period of regular and egregious harassment and bullying. The introduction to the complaint states:
Emilie, an Asian-American, was continually bullied, harassed, assaulted, battered, and discriminated against in school, and further bullied and harassed online, because of her race, national origin, and gender, as well as her association with Caucasian students, and her perceived sexual orientation and practices. Emilie and her parents tried to end the bullying and repeatedly pleaded with certain Defendants for help. Defendants failed to stop the bullying, and it continued. Consequently, Emilie suffered severe anguish, distress, and depression, and ultimately committed suicide. Sadly, Emilie’s case was not an outlier; other Fairfield students also suffered unrelenting bullying and discrimination, and two of those students attempted suicide months before Emilie’s death. Certain of the Defendants, likewise, failed to intervene on behalf of these students. This action seeks damages and seeks to reform the Fairfield City Public Schools’ policies and practices for responding to bullying, harassment, assault, battery, and discrimination.
The complaint frames these facts as violations of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments, Substantive Due Process, and Equal Protection. It also raises Section 1983 claims, alleging a pattern and practice of violating these aforementioned rights, along with a host of state law claims.
The first issue that jumps out at me is one of mixed motive. The complaint details a long list of incidents, statements, and altercations, some of which relate to sex, some of which relate to sexual orientation, and some of which relate to race and ethnicity. Some incidents do not facially fit into any category of discrimination and could be either general bullying or circumstantially related to the aforementioned discrimination. General bullying would not violate any federal statutory protection, although it might fall into a substantive due process claim if sufficiently egregious and ignored.
Bullying need not, of course, fit into any single prohibited category to be actionable, but it does need to fit in some category. The "cleanest" cases are those where the bullying is strictly about race or gender, as the fact finder does not need to work as hard to discern a prohibited motivation or form of discrimination. This makes the narrative of discrimination easier to build. In the instant case, race and ethnicity seems to be a dominant aspect of the harassment, but sex and potentially sexual orientation seem to play a significant role as well. The court, however, will either need to sort these types of discrimination out or recognize the inter-sectional nature that discrimination often takes but which courts sometimes fail to appreciate. Here, it may very well be the case that this student's gender, sexual orientation, race and ethnicity all intersected to create a particularly virulent form of discrimination. Life, quite simply, does not always fit easily into the neat boxes the law would proscribe.
Second, this case raises the same issues always at play in harassment cases: what exactly did the district know and, if they knew something, did they do enough to address it. Title VI and Title IX law is pretty permissive on both questions. Teacher knowledge is not enough. Agents of the school (principals, administrators, etc) must have knowledge of the harassment that amounts to prohibited discrimination and fail to reasonably respond. Failing to respond means more than just failing to stop the discrimination. Here the district, according to the complaint, was repeatedly put on notice on numerous occasions of what occurred. The parents, however, seem to have been kept in the dark about a lot of things, including incidents that the district may have learned of itself and the district did or did not take to address them. For the most part, the complaint alleges that the district did nothing to respond, which very well may be true, but one could fairly assume the district will point to a number of things it did, in fact, do. The determinative question will be whether whatever the district did was enough.
The lawsuit, interestingly, goes beyond these basic notice and response questions of statutory claims, raising constitutional claims that potentially require a broader inquiry into whether the district actively put the student in danger or harbored some impermissible biases or neglect of its own. I will, however, reserve that discussion for later.
Friday, May 13, 2016
The U.S. Department's of Justice and Education have released joint policy guidance regarding the rights of transgender students under Title. The guidance does not mince words or over-complicate the issue, but simply states that the "Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity." This emphatic position was no doubt helped by the recent Fourth Circuit decision in Grimm v. Gloucester County School Board. As the guidance explains:
The Departments’ interpretation is consistent with courts’ and other agencies’ interpretations of Federal laws prohibiting sex discrimination. The Departments interpret Title IX to require that when a student or the student’s parent or guardian, as appropriate, notifies the school administration that the student will assert a gender identity that differs from previous representations or records, the school will begin treating the student consistent with the student’s gender identity. Under Title IX, there is no medical diagnosis or treatment requirement that students must meet as a prerequisite to being treated consistent with their gender identity. Because transgender students often are unable to obtain identification documents that reflect their gender identity (e.g., due to restrictions imposed by state or local law in their place of birth or residence), requiring students to produce such identification documents in order to treat them consistent with their gender identity may violate Title IX when doing so has the practical effect of limiting or denying students equal access to an educational program or activity.
A school’s Title IX obligation to ensure nondiscrimination on the basis of sex requires schools to provide transgender students equal access to educational programs and activities even in circumstances in which other students, parents, or community members raise objections or concerns. As is consistently recognized in civil rights cases, the desire to accommodate others’ discomfort cannot justify a policy that singles out and disadvantages a particular class of students.
Tuesday, April 19, 2016
Gavin Grimm Secures Monumental Victory for LGBTQ Community for Equal Access to Bathrooms and Facilities
Gavin Grimm just secured an enormous victory for himself, and the entire LGBTQ community, in his fight to gain equal access to the restrooms and other facilities at his public school in Gloucester, Virginia. After losing before his school board and a federal district court, he has now won in the Fourth Circuit Court of Appeals. For those who do not follow this blog or the issue in general, equal access to facilities for transgender students has been a topic of hot debate at the local and state level across the country. See here and here. Regardless, this was a case of first impression and reached a result that emphatically secures rights for students in the southeast and mid-Atlantic states, and will likely have an impact on other circuits as they take up similar cases.
For the non-lawyers looking for clear answers, the opinion in G.G. v. Gloucestor Country may appear confusing, as it includes some technical procedural and analytical issues. I offer this simplified explanation of the case. First, Title IX, a federal statute, prohibits discrimination based on sex in schools. Second, Title IX does not specifically address gender identity, but the U.S. Department of Education has interpreted the statute to transgender individuals: “When a school elects to separate or treat students differently on the basis of sex . . . a school generally must treat transgender students consistent with their gender identity.” Thus, the key issues in the case were whether the meaning of "sex" in the statute was ambiguous and, if so, whether the Department's interpretation of the term was reasonable.
In a 2-1 decision, the Fourth Circuit held that while "sex" clearly refers to males and females, how Congress intended that term to apply to intersex or transgender students is not clear. When confronted with such an ambiguity, a court should defer to an agency's reasonable interpretation. Thus, that is exactly what the Fourth Circuit did, ruling in favor of Gavin Grimm. The case is now on its way back to the district court, which must now apply the correct standard and determine what remedy to afford Mr. Grimm.
For those legal scholars looking for more, the full opinion is here. Or see below for the most pertinent discussion by the court:
Tuesday, March 29, 2016
Yesterday, plaintiffs sued North Carolina Governor Pat McCrory, challenging the constitutionality of a newly-enacted House Bill 2 that prohibits cities and counties from adopting their own anti-discrimination ordinances and instead established a state anti-discrimination that does not include transgender persons as a protected class. In the complaint, Carcaño v. McCrory, the plaintiffs allege that H.B. 2 violates the Equal Protection and Due Process clauses because it discriminates on the basis of sex and sexual orientation and is an invasion of privacy for transgender people. The plaintiffs further allege that the law violates Title IX by discriminating against students and school employees on the basis of sex by requiring transgender persons to use bathrooms by the gender on their birth certificates, rather than their gender identity. The lawsuit was filed in the U.S. District Court for the Middle District of North Carolina, with the ACLU, Lambda Legal, and the ACLU of North Carolina representing the plaintiffs. Today, North Carolina Attorney General Roy Cooper announced that his office will not defend the constitutionality of H.B. 2. Cooper has opposed the state's efforts in other anti-LGBT measures such as the state's same-sex marriage provisions, saying last month that the state "has gone off the tracks." The ACLU of North Carolina applauded Cooper's stance that House Bill 2, saying in a statement that the law is "not only incompatible with the state's constitutional and legal obligations but also our shared values as North Carolinians. We’re grateful the Attorney General stands on the on the right side of history with the many cities, states, businesses and individuals who have come out against this harmful measure." The complaint is here.
Thursday, March 24, 2016
North Carolina Blocks Transgender Persons' Access To Public Facilities That Reflect Their Gender Identities
The state legislative trend continues to require transgender persons to use public facilities that align with the biological gender on their birth certificates rather than their gender identity. We've noted several state legislative efforts in this direction, most recently about Tennessee's law creating a lock-in exclusion for transgender students because another state law prohibited the state from recognizing sex changes on birth certificates. Yesterday, North Carolina Governor Pat McCrory signed the Public Facilities Privacy & Security Act (H.B. 2), which requires that multiple-occupancy bathrooms and locker rooms in public schools and government buildings be used by persons only according to their biological sex. The new law also blocks local governments from enacting ordinances to allow transgender people to use public bathrooms that match their gender identities -- targeting Charlotte's anti-discrimination ordinance passed last month that allowed people to choose restrooms corresponding to their gender identity. When the Charlotte ordinance was passed, Gov. McCrory commented that the law was a threat to public safety, so the swift response by the N.C. General Assembly was expected. Responding to H.B. 2's passage, Chris Brook, Legal Director of the ACLU of North Carolina, stated on the ACLU website, "We are disappointed that Governor McCrory did not do right by North Carolina’s families, communities, and businesses by vetoing this horribly discriminatory bill, but this will not be the last word." More on the new law here.
Wednesday, March 16, 2016
Madison County School Board in Alabama has finally brought an end to the six year saga regarding its failure to protect a middle school student from sexual harassment and later its active role in using the student as “bait” to catch the harasser, which led to her being raped. Media outlets report that the board greed to a settlement with the victim this week.
As discussed here in 2014, a teacher's aide at Sparkman Middle School convinced a 14-year-old female special needs student to enter a bathroom with another student with a history of sexual and violent misconduct. The aid told her teachers would be present in the bathroom to catch the male student “in the act” of sexual misconduct before anything happened. This was all purportedly in service of a school official’s policy of needing actual evidence to punish acts of sexual harassment. Tragically, no teachers were present to intervene, and the student was violently sexually assaulted and raped.
For some reason, the district has persisted in arguing that it was not responsible for the assaults, notwithstanding its knowledge of the attacker’s history and allegations that school officials even knew of this plan to catch him in the act. Late last year, the Eleventh Circuit disabused the district of its notions in Hill v. Cundiff, 797 F.3d 948 (11th Cir. 2015), and remanded the case to the trial court. That remand led to this week's settlement.
Applying the Title IX deliberate indifference framework from the Supreme Court’s opinion in Davis v. Monroe County, the Eleventh Circuit had written:
We now ask what the Board knew—vis-à-vis Principal Blair or Assistant Principals Dunaway or Terrell—about CJC's alleged harassment and discrimination. . . . The Board admits it had knowledge of CJC's disciplinary history that was tersely recorded in the iNOW database. The Board does not contest it had actual knowledge of CJC's unrecorded instances of alleged sexual harassment in January 2010. Administrators learned weeks before the rape that CJC had been propositioning girls to have sex in bathrooms. On January 13, 2010, ten days before the rape of Doe, the administrators learned CJC had allegedly inappropriately touched a female student. . . . Construing the facts in favor of Doe for purposes of summary judgment, the Board (through Dunaway) had actual knowledge of the use of Doe as rape bait for CJC in the sting operation and CJC's propositioning of Doe to have sex. . . .
Wednesday, March 9, 2016
According to local news report, the Franklin County School Board in Tennessee is considering taking a radical step simply to prevent a Gay-Straight Alliance from forming in the district: eliminate extracurricular activities altogether. A federal statute mandates that once schools open their doors to student groups (and outside groups) that they open their doors equally to everyone. The initial intent behind the statute was to ensure equal access to religious groups. The statute specifically paved the way for church's to begin holding services in some schools. Gay-Straight Alliances have used this legislation to their benefit in numerous communities that would have otherwise excluded them. Apparently, Franklin County would rather keep everyone out than let the Gay-Straight Alliance in.
The New Civil Rights Movement reports:
The GSA at Franklin County High School in Winchester has been under attack since it first met in January, with parents comparing it to ISIS, and students vandalizing the club's posters andwearing "Straight Pride" signs in protest.
Last month, anti-LGBT residents who spoke at a school board meeting warned that the GSA is part of a "radical gay political agenda" that seeks to recruit children:
In response to the controversy over the GSA, the Franklin County School Board has decided to draft new guidelines for student organizations. Under the federal Equal Access Act, officials must allow the GSA unless they eliminate all extracurricular clubs, from the Fellowship of Christian Athletes to the Student Council.
Tuesday, March 8, 2016
Parents of three female students are suing North Carolina's Charter Day School, alleging that its dress code prohibits girls from wearing pants or shorts even though boys are required to wear pants or shorts to school. Female students must wear skirts, skorts, or jumpers to school or face disciplinary action. To avoid overexposure in jumpers and skirts, female kindergartners have been instructed on how to "sit like a princess" during reading time when students sit on the floor. The plaintiffs allege that the dress code at the K-8 school is enforced daily except the one day a week that students wear their gym uniforms to school and during school "spirit days," when students must pay $2 to be allowed to wear jeans. According to the suit, school officials told parents that skirts presented a more “professional image” and that the policy was based on “chivalry,” “traditional values,” and “mutual respect.” The founder of Charter Day School elaborated in an email that the number of female students injured during the Columbine shootings showed a need for students to feel respect for their peers. The ACLU represents the plaintiffs in the § 1983 suit filed in the U.S. District Court for the Eastern District of North Carolina, posted here.
Wednesday, March 2, 2016
As reported a little over a week ago, both houses of the South Dakota legislature Both houses of the legislature passed a bill that would have prevented transgender students from using bathrooms and locker rooms consistent with their gender. To the governor's credit, he indicated that he would closely consider the bill before making a decision on whether to sign it. Presumably, the Office for Civil Rights' interpretation of Title IX, which would deem such a policy a violation, played no small part in the governor's decision. Yesterday, he vetoed the bill. He did, however, wait until the last minute. Had he not vetoed it, the bill would have automatically become law last night. Unfortunately, the issue is not entirely over, as the legislature still has the authority to override the veto. But given that the bill only succeeded by a 57 percent vote in the senate, it is unlikely to have the necessary votes.
Governor Daugaard offered this statement:
House Bill 1008 does not address any pressing issue concerning the school districts of South Dakota. As policymakers in South Dakota, we often recite that the best government is the government closest to the people. Local school districts can, and have, made necessary restroom and locker room accommodations that serve the best interests of all students, regardless of biological sex or gender identity.
This bill seeks to impose statewide standards on “every restroom, locker room, and shower room located in a public elementary or secondary school.” It removes the ability of local school districts to determine the most appropriate accommodations for their individual students and replaces that flexibility with a state mandate.
If and when these rare situations arise, I believe local school officials are best positioned to address them. Instead of encouraging local solutions, this bill broadly regulates in a manner that invites conflict and litigation, diverting energy and resources from the education of the children of this state.
Preserving local control is particularly important because this bill would place every school district in the difficult position of following state law while knowing it openly invites federal litigation. Although there have been promises by an outside entity to provide legal defense to a school district, this provision is not memorialized in the bill. Nor would such defense eliminate the need for school or state legal counsel, nor avoid expenses relating to expert witnesses, depositions and travel, or other defense costs. Nor does the commitment extend to coverage over settlement or damage expenses. This law will create a certain liability for school districts and the state in an area where no such liability exists today.
For these reasons, I oppose this bill and ask that you sustain my veto.
Thursday, February 25, 2016
In the on-going struggle to ensure equal opportunity for LGBTQ youth, opponents have fought back. In Fairfax, Virginia--one of the nation's more progressive districts--the school district had adopted policies to protect gay and transgender students from discrimination and harassment. In an interesting twist, the Traditional Values Coalition and an individual student sued the school board, alleging that the board lacked the authority to create those protections. Their reasoning was very thin. Because the state of Virginia had not enacted protections for LGBTQ youth, plaintiffs reasoned that local districts were prohibited from doing so. To that they added the claim that the student plaintiff was “terrified at the thought of having to share intimate spaces with students who have the physical features of a girl, seeing such conduct as an invasion of privacy.”
Last week, the Fairfax County Circuit Court threw out the lawsuit. The Washington Post reports:
“We’re very pleased with the Circuit Court of Fairfax County’s decision today to dismiss the lawsuit brought against the School Board by Ms. Lafferty and the other plaintiffs,” said School Board Chairman Pat Hynes (Hunter Mill). “The School Board remains committed to ensuring that all of our students and employees are treated fairly and with dignity and respect.”
Lafferty, reached by phone Friday, said she planned to appeal the dismissal, but referred further comment on the matter to her lawyer. Mat Staver of the Liberty Counsel, which is representing the student and Lafferty, said the judge dismissed the suit because he said his clients lacked standing.
Staver said Liberty Counsel plans to appeal the case on Monday.
The suit’s dismissal comes as school districts struggle to figure out how to accommodate transgender students. The Fourth Circuit of Appeals in Richmond, Va. recently heard an appeal from a transgender boy who was barred from using the boy’s restroom at his high school in Gloucester County, Va. The decision in that case could have national implications.
The Fairfax County School Board voted to change its nondiscrimination policy to include gay students and staff in December 2014. Six months later, the board expanded the policy to bar discrimination based on “gender identity” despite vocal opposition from Lafferty and some parents in the district.
Friday, February 19, 2016
South Dakota Legislature Passes Bill Prohibiting Transgender Youth from Using Restrooms and Lockerrooms That Match Their Gender; Governor's Stance Unclear
No single civil rights issue in education seems to have garnered more attention over the past year or so than transgender students rights, particularly in regard to restrooms. See here, here, here, here, and here. Earlier, this week South Dakota added itself to the list of controversies and, unfortunately, regressive action. Both houses of the legislature have now passed a bill that, according to Edweek, “would make the Mount Rushmore State the first to approve state-level restrictions on the bathrooms and locker rooms that transgender students use at school, potentially setting its schools up for legal battles with federal officials.” The bill applies to both bathrooms and locker rooms and requires that students use facilities that “match their biological sex, defined as ‘the physical condition of being male or female as determined by a person's chromosomes and anatomy as identified at birth,’ even if that sex doesn't match the gender they identify with.” The bill is now before the Governor, who indicates he will review the legislative record before making his decision on whether to sign it. Hopefully, he will also consider the Office for Civil Rights' interpretation of the law, which deems such a policy a violation of Title IX.
Tuesday, February 9, 2016
Nancy Chi Cantalupo (Barry, Dwayne O. Andreas School of Law) has posted her essay, For the Title IX Civil Rights Movement: Congratulations and Cautions (January 22, 2016), Yale Law Journal Forum, Forthcoming on SSRN here: From the abstract:
The Yale Law Journal's Conversation on Title IX confirmed the existence of a new civil rights movement in our nation and our schools, led by smart, courageous survivors of gender-based violence and joined by multiple generations of anti-gender-based violence activists, attorneys, leaders, and scholars. As a civil rights statute, Title IX guarantees broad rights to an equal education, and although schools' compliance with Title IX and the statute's enforcement still require significant improvements, today's movement can build upon a legal foundation established by previous waves of the pro-equality and anti-gender-based violence movements.
But in doing so, the Title IX movement must remain vigilant against pushes to criminalize Title IX. Suggestions that gender-based violence which violates Title IX can be punished like criminal offenses and that Title IX proceedings should therefore follow the procedures of the criminal justice system conflate Title IX with criminal laws against rape and sexual assault. This conflation fundamentally undermines Title IX's central purpose: to protect and promote equal educational opportunity for all students, including both the alleged perpetrators and the victims of gender-based violence.
This push to criminalize Title IX is evident in three groups of recent state and federal legislative proposals, including efforts
(1) to import criminal due process requirements into campus disciplinary and grievance proceedings,
(2) to mandate that school officials refer all reports of sexual violence, including through the school's Title IX system, to law enforcement, and
(3) to require colleges and universities to adopt "affirmative consent" or so-called "yes means yes" policies. The first two proposals conflict with and dangerously undermine Title IX's equality mandate, but the effect of the third is more equivocal. This Essay considers closely each one of these criminalization efforts and briefly propose two methods of retaining the benefits of affirmative consent policies while minimizing the damage they could do to Title IX rights.
Middle School Boy Told to Take Off "Elsa" Dress on Spirit Day, Raising Free Speech and Sex Discrimination Issues
According to local news outlet, Ethan Chase Middle School in Menifee in South California held a spirit day last week and students were encouraged to wear Disney costumes. One boy, Austin Lacey, dressed up as Elsa from the movie "Frozen." Apparently, he was a big hit with his friends and several asked to have their picture taken with him. The school principal, however, told him to take the costume off. According to Austin's mom, the principal felt that the costume was inappropriate for boys. Whether the principal entirely disputes that claim or believes he had the authority to make Austin change in any event is a little unclear. The superintendent released a statement in support of the principal, indicating that: "This action was taken in accordance with district policies. At no time was there an indication that the student was expressing any particular message. The Principal's action was based upon the need to stop a general disruption to the school environment."
The statement sounds as though it came straight out of the First Amendment playbook for school officials: the action was not "viewpoint based" and was intended to prevent a "substantial disruption," which Tinker v. De Moines, 393 U.S. 503 (
Here, if Austin had worn the costume on some random day, the district's action would easily stand up to scrutiny because it likely would be disruptive. The fact that Austin wore it on a spirit day makes the response far more questionable. Spirit day itself causes some level of disruption--disruption which the school has affirmative made the decision to tolerate it believing that it serves some great value. In that context, it would seem that the school would need to show that Austin's dress caused some disruption/excitement above and beyond what was already occurring. Otherwise, it would appear that he was being singled out.
Wednesday, February 3, 2016
In Transgender Student Rights Case, Two of Three Judges Have Interesting Track Records on Related Issues; Sparks Will Surely Fly
The Fourth Circuit Court of Appeals heard oral arguments last week in G. G. v. Gloucester County School Board. Gloucester involves Gavin Grimm's claim that the school board's refusal to permit transgender students to use the restrooms consistent with their gender violates Title IX, which prohibits sex discrimination. As a case of first impression, it has garnered national attention and been discussed various times on this blog. The case also includes high profile attorneys, with the ACLU representing Mr. Grimm, six states filing amici briefs in support of Gloucester, and the U.S. Department of Justice filing a brief in support of Grimm.
Last week offered the first glimpse of the three judges who will decide the case. This panel will surely produce fireworks behind closed doors and potentially in their final opinion. The three judge panel includes judges Paul Niemeyer, Henry Floyd, and Andre Davis. Niemeyer and Floyd are the most interesting. Niemeyer wrote the 2-1 opinion by the Court of Appeals upholding Virginia Military Institute's refusal to admit women. The Supreme Court, of course, reversed, holding that the Virginia's exclusion of women failed intermediate scrutiny. More recently, Niemeyer dissented in a 2-1 opinion that struck down Virginia's ban on same-sex marriage. He reasoned that Virginia could stick to its traditional definition of marriage without violating anyone's fundamental rights. He added that he was concerned with the ramifications of forcing Virginia to recognize a broader definition of marriage. He wrote:
Wednesday, January 20, 2016
A California district has ruled that a claim alleging that athletic staff at Pepperdine University discriminated against two former students because of their perceived sexual orientation could proceed despite Pepperdine's argument that sexual orientation is not cognizable under Title IX. The district court in Videckis v. Pepperdine University, No. CV 15-00298 (C.D. Cal. Dec. 15, 2015), cited recent Equal Employment Opportunity Commission (EEOC) rulings that sexual orientation discrimination is covered under Title VII. In Videckis, two college athletes allege that the Pepperdine women's basketball staff harassed and discriminated against them because of the staff's belief that plaintiffs were lesbian. The plaintiffs claim that Pepperdine's coaching staff repeatedly asked them about their private sexual behavior and told the players that lesbianism would not be tolerated on the women's basketball team. Plaintiffs also claim that they were refused clearance to play basketball because of the coaching staff's discriminatory views against lesbians. In the order, the district court wrote that "[i]t is impossible to categorically separate "sexual orientation discrimination" from discrimination on the basis of sex or from gender stereotypes; to do so would result in a false choice. Simply put, to allege discrimination on the basis of sexuality is to state a Title IX claim on the basis of sex or gender." The plaintiffs also allege sex and gender stereotype discrimination and retaliation under Title IX.
Thursday, January 7, 2016
As Equal Access and Non-Discrimination for LGBT Students Increases, So To Do Requests for Exemptions from Federal Law
The Human Rights Campaign's new report, Hidden Discrimination: Title IX Religious Exemptions Putting LGBT Students at Risk, reveals a new phenomena in education that is offsetting some of the gains praised here and elsewhere over the past year . As discussed often in the last six months on this blog, the Office for Civil Rights at the Department of Education has taken a firm stance on protecting LGBT students from sexual harassment and ensuring transgender students have equal access to restrooms and locker rooms. This has lead to high profile standoffs in Chicago and rural Virginia. OCR is winning that battle.
This new report, however, reveals a more "civil" battle occurring under the radar. Religious schools are seeking exemptions from Title IX's gender non-discrimination requirements. These exemptions are explicitly authorized by Title IX, which grants exemptions for religious based schools when compliance with the Act is inconsistent with their religious beliefs. The report finds:
- More than half of all states (26) have at least one school that has requested an exemption; • Schools in the South have requested the most exemptions;
- Schools that are affiliated with the Southern Baptist Convention requested the greatest number of exemptions, followed by schools affiliated with Wesleyan and Catholic churches;
- Almost a third of schools receiving a gender identity related exemption referred to the federal government’s groundbreaking Arcadia Settlement as a primary reason for requesting an exemption;
- 56 schools requested an exemption;
- 33 schools received an exemption from the law as it pertains to protecting students on the basis of gender identity;
- 23 schools also received an exemption from the law as it pertains to protecting students on the basis of sexual orientation; and
- Schools most commonly requested exemptions from provisions of the law relating to housing, access to facilities, and athletics.
As I teach my Education Law students each spring, Title IX, maybe more than any other law with which I have dealt, is riddled with contradictions. These contradictions are a result of Congress's unsuccessful struggle to reconcile cultural mores with gender equality. The religious exemption, while troubling in this particular context, is the least of those contradictions.