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.
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.