Wednesday, March 12, 2014
7th Circuit Rules that Hair Grooming Codes Applied Only to Male Student Athletes Violate Equal Protection Clause and Title IX
The Seventh Circuit reconsidered some of its earlier precedent last week and held that a school’s policy requiring male basketball players wear their hair cut above their ears violated the equal protection clause of the Fourteenth Amendment and Title IX of the Education Amendment Acts of 1972. The 3-1 panel decision in Hayden v. Greensburg Cmty. Sch. Corp., No. 13-1757 (7th Cir. Feb. 24, 2014), is one of the circuit’s few school cases addressing hair length in decades, prompting questions whether its older grooming code holdings survive Price Waterhouse.
In the case, the coaches of the male basketball and baseball teams at the public high schools in Greensburg, Indiana, required players to keep their hair cut short to promote “team unity” and a “clean-cut image.” One basketball player, A.H., wished to wear his hair longer, saying that he did not “feel like himself” with shorter hair. A.H.’s parents, the Haydens, sued on behalf of their son claiming that the school’s hair grooming code “intruded upon their son’s liberty interest in choosing his own hair length, and thus violates his right to substantive due process, and [ ]… because the policy applies only to boys and not girls wishing to play basketball, the policy constitutes sex discrimination.” The 7th Circuit found for the school district on the substantive due process claim. The court found that A.H.’s hair length was not a fundamentally protected right under Glucksberg, but instead a “harmless liberty,” where “the government need only demonstrate that the intrusion upon that liberty is rationally related to a legitimate government interest." The Haydens, the court concluded, failed to show that the hair-length policy failed rational-basis review. The circuit court reversed, however, the district court’s finding that the Haydens did not make out a prima facie case of discrimination. The hair length policy for the male basketball and baseball team members did not apply to male athletes in other sports and did not apply to female athletes at all, and the circuit court noted, “there is no facially apparent reason why that should be so. Girls playing interscholastic basketball have the same need as boys do to keep their hair out of their eyes, to subordinate individuality to team unity, and to project a positive image. ... Given the obvious disparity, the policy itself gives rise to an inference of discrimination.” Finding “no rational, let alone exceedingly persuasive, justification has been articulated for restricting the hair length of male athletes alone,” the court remanded the case to the lower court to determine appropriate relief on the Haydens’ equal protection and sex discrimination claims. Read Hayden v. Greensburg Cmty. Sch. Corp., No. 13-1757 (7th Cir. Feb. 24, 2014) here.
Friday, March 7, 2014
The Office for Civil Rights has completed its compliance review of Indianapolis Public Schools and found a violation of Title IX in regard to its athletics program. OCR's resolution letter to the District is a model in terms of applying the three prong standard. A district is in compliance if it can show a) proportional participation in sports, b) a continuing history of program expansion, or c) that current offerings meet student interest and ability. The letter sets out and applies each very clearly and could easily be used to teach the subject matter in class.
On the first prong, OCR found that one of the district's high schools was in compliance, but the rest were not. Girls are 50.5% of the overall student population, but only 35.5% of the student athletes. To the district's defense, it is rare that an institution meets the first prong, and that one of the district's high schools did is noteworthy.
On the second prong, the district's athletic programs had been stagnant for some time and, thus, there was no history of efforts to expand offerings in ways that might have improved the disparity.
On the third prong, "OCR considers whether there is (a) unmet interest in a particular sport; (b) sufficient ability to sustain a team in the sport; and (c) a reasonable expectation of competition for the team in the school’s normal competitive region. If all three conditions are present, then OCR will find that the school has not fully and effectively accommodated the interests and abilities of the underrepresented sex." The district, however, had made no attempt to assess student interest and, thus, could not avail itself of this prong either. In short, the second and third prongs provide schools with a "safe harbor" for disparities, but they have to do something to take advantage of this safe harbor. Indianapolis had done nothing.
Beyond the raw number of opportunities offered, OCR also found evidence of qualitative inequalities, with the district affording different resources and support to those female programs that were available. In particular, it found inequalities in equipment and supplies and the scheduling of games and practices.
As a result, the district entered into a resolution agreement with OCR that provides:
- the District will provide participation opportunities for girls and boys . . . that effectively accommodate the athletic interests and abilities of both sexes. . . . In particular, the District will conduct a comprehensive assessment during the 2013-2014 school year to determine whether female students (who are the underrepresented sex in the District’s athletics program) have unmet athletic interests and abilities. . . . If through the assessment, the District identifies a sport or sports in which there is sufficient but unmet interest and (if applicable) ability of female students to participate at the interscholastic level at a particular high school, the District will add athletics opportunities (including new sports or new levels of existing sports by the next competitive season) at the high school(s) until such time as either (1) the high school is fully and effectively accommodating the expressed interests and abilities of female students (i.e., there remains no unmet interest and ability); or (2) the participation rate for female students in the high school’s interscholastic athletics program is substantially proportionate to their rate of enrollment at the high school. . . .
- In addition, during the 2013-2014 school year, the District will develop a plan to ensure that it provides equal athletic opportunities . . . for members of both sexes in the provision of locker rooms, practice and competitive facilities . . .
- Finally, the District will create during the 2013-2014 school year a comprehensive policy, subject to OCR’s review and approval prior to implementation, to regulate booster club funding and any other private donations flowing into the athletic programs at each high school to ensure that if booster clubs or other outside sources provide funding that results in disparities in benefits and services favoring athletes of one sex over the other sex, then the District will take action at the high school to ensure that the benefits and services are equivalent for both sexes.
Friday, January 31, 2014
Maine Supreme Court Issues Monumental Decision in Favor of Transgendered Student's Right to Use Bathroom of Choice
A student in Maine has secured a huge victory for transgendered students. Susan Doe, a transgendered student, who is biologically male, but identifies as female, had been denied access to the girl's bathroom at her middle school. The Maine Supreme Judicial Court has held that she has a right to use the girl's restroom. The decision is based on Maine's Human Rights Act, which provides:
It is unlawful public accommodations discrimination, in violation of this Act . . . [f]or any public accommodation or any person who is the . . . superintendent, agent, or employee of any place of public accommodation to directly or indirectly refuse, discriminate against or in any manner withhold from or deny the full and equal enjoyment to any person, on account of . . . sexual orientation . . . any of the accommodations . . . [or] facilities . . . of public accommodation . . . .
The court, however, was careful to write a decision that was tailored to Susan's specific facts, which included a clearly documented gender identity and a past acceptance by the school of that identity. The Court wrote:
we emphasize that in this case the school had a program carefully developed over several years and supported by an educational plan designed to sensitively address Susan’s gender identity issues. The determination that discrimination is demonstrated in this case rests heavily on Susan’s gender identity and gender dysphoria diagnosis, both of which were acknowledged and accepted by the school. The school, her parents, her counselors, and her friends all accepted that Susan is a girl.
Thus, we do not suggest that any person could demand access to any school facility or program based solely on a self-declaration of gender identity or confusion without the plans developed in cooperation with the school and the accepted and respected diagnosis that are present in this case. Our opinion must not be read to require schools to permit students casual access to any bathroom of their choice. Decisions about how to address students’ legitimate gender identity issues are not to be taken lightly. Where, as here, it has been clearly established that a student’s psychological well-being and educational success depend upon being permitted to use the communal bathroom consistent with her gender identity, denying access to the appropriate bathroom constitutes sexual orientation discrimination in violation of the MHRA.
While carefully crafted, this language seems more directed toward warding off open access to bathrooms for anyone who wants it, rather than limiting the rights of other transgendered students facing problems like Susan's.
Many other districts across the nation have similarly been struggling with how to accomodate transgendered students. This decision should provide a helpful example.
Thursday, January 30, 2014
Robert Marucci, an 18-year-old high school student, in Florida was allegedly suspended for his participation in gay pornography. Marruci states that he started working in the industry to help his mother pay the bills. Apparently, the family has fallen on hard times and his work does not violate any law. Regardless, when other students at his school learned of his work, he indicates he was bullied and threatened. If the school knew of and did not respond to this bullying, it violated Title IX's prohibitions on sexual harassment. See Davis v. Monroe County, 526 U.S. 629 (1999). Marucci's mother says that this is exactly what the school did. Strike one against the school.
What the school did do was suspend Marucci for ten days. His mother says he was "expelled due to his explicit lifestyle career.” The school indicates that it suspended him for "possible threats" he had made. The devil is in the detail, but "possible threats" sounds vague. If it is only "possible" that he has made threats to other students, the school lacks a basis to suspend him. At best, if the threats were extremely serious, the school could have removed him temporarily to investigate (per a narrow exception in Goss v. Lopez). This does not appear to be the school's claim. Sounds like strike two against the school.
If the school, in fact, removed him for his off-campus lifestyle choice, it may have engaged in another Title IX violation, as well as Free Speech. Strike three (and four, I suppose).
Monday, December 16, 2013
The recent PISA results (Programme for International Student Assessment) show no statistical difference between boys and girls in math or science in the United States. That finding knocks another leg out from under the rationale for single sex education, even though some other assessments like NAEP and AP exams have shown differences in recent years. The explanation for the differening results between the assessments is unclear. But where girls have underperformed, Carol Dweck, a Stanford psychologist, attributes it to a differential "mindset" about their ability to perform well on the assessment. That is consistent with the PISA report, which found that "[E]ven when girls perform as well as boys in mathematics, they tend to report less perseverance, less openness to problem-solving, less intrinsic and instrumental motivation to learn mathematics, less self-belief in their ability to learn mathematics and more anxiety about mathematics than boys, on average; they are also more likely than boys to attribute failure in mathematics to themselves rather than to external factors."
A differential mindset is not, as one might assume, a reason to separate boys and girls, particularly if that mindset is a product of social inputs. More bluntly, boys' and girls' different mindsets appear to be a function of the social stereotypes that they internalize, not innate differeces. Is the point of single sex education to unravel those stereotypes or is it a concession to the notion that there are innate differences underlying stereotypes? The PISA results strongly challenge the innate differences explanation and I am unaware of single sex programs systematically focusing on eliminating stereotypes. In fact, single sex education would seem to be no better suited to eliminate gender stereotypes than racially isolated schools are to eliminate racial stereotypes.
Monday, November 18, 2013
Last week, La Feria School District in Texas told Jeydon Loredo that his picture would not appear in the school's yearbook. Jeydon grew up female but identifies as male. He posed for his high school senior picture in a tuxedo. The school's rationale for excluding him was its dress code. Jeydon's mother said that officals told her that her son's picture in a tuxedo "goes against the community standards.” They further indicated that “they were a conservative school and that (outfit) wouldn’t follow the school policy as far as their dress code.” If he wanted to be included in the yearbook, he would need to wear feminine clothing.
The Southern Poverty Law Center (SPLC) came to Jeydon's defense and threatened to sue the district for violating his First Amendment, Equal Protection, and Title IX rights. After a meeting with the SPLC, the district changed its position and will include Jeydon's picture in a tuxedo in the yearbook. One wonders whether the district knew it was violating the law to begin with and thought it could get away with it or if it only came to realize the err in its ways after speaking with SPLC. Either way, this story shows a lot of education around these issues is necessary.
Tuesday, November 12, 2013
A recent survey of 282 colleges and 44 college administrators found that 67% of students experienced harassment on campus and 61% witnessed another student being harassed. Those students reported that the harassment had significant effects on their education. Forty-six percent said harassment caused disappointment with college experience. Twenty percent said harassment interfered with their concentration in class. And 23% said harassment caused them to miss class and other campus activities. Only 17% of students, however, actually reported the harassment to a college officials. Fifty-five percent of college administrators cite the cause of the low reporting rates as begin poor reporting and enforcement mechanism.
The survery is not nearly as nuanced as the ones conducted by the American Association of University Women (AAUW), but its results are largely consistent with the AAUW's last report in 2005, Drawing the Line: Sexual Harassment on Campus. As some may recall, reports of this sort were important in prompting the Supreme Court to extend Title IX liability to schools for on-campus harassment. Those cases, however, addressed elementary and secondary schools. Given the different and decentralized context of college campuses, the problem of higher education harassment does not easily mess with the rules developed for elementary and secondar schools. These persistently high numbers in college suggest a different approach is necessary (not that the problem has been solved in elementary and secondary schools).
Thursday, November 7, 2013
In a press release yesterday, the Office for Civil Rights disclosed its findings and final resolution regarding sexual harassment and assault in West Contra Costa Unified School District in Richmond, California.
Evidence included verbal and physical conduct by students, including sexual assaults, unwelcome touching, demands for sexual favors, and the use of sexually derogatory language created a hostile environment at district schools. OCR also found that students had been subjected to sexual harassment by employees. In addition, the district was not in compliance with the procedural requirements of Title IX, which include adoption and publication of grievance procedures providing for prompt and equitable resolution of complaints of sex discrimination and designation of at least one employee to coordinate compliance with Title IX.
“I am dismayed by the prevalence of sexual harassment and assault occurring at elementary and secondary schools in West Contra Costa,” said Catherine E. Lhamon, assistant secretary for civil rights. “Although the district frequently reported known incidents of sexual assaults to law enforcement for prosecution, the district did not fully comply with its legal obligations under Title IX to take immediate actions to eliminate the harassment, prevent its recurrence, and address its effects, and to put proper procedures and protocols in place. OCR stands ready to work with the district to help it realize its commitments to preventing sexual harassment and sexual violence in its schools through satisfaction of this agreement.”
Although this sounds like an easy case, it comes on the heals of various other significant agreements I have noted in recent months. Credit goes to OCR for what appears to be a more agressive approach to enforcement during Obama's second term.
More details on the agreement here.
Monday, October 21, 2013
Wednesday, October 16, 2013
I still have not placed my fingers on the pleadings, but I was able to speak with Erin Cox’s attorney, Wendy Murphy. For those who missed it, yesterday I posted on Massachusetts high school that suspended (from athletic opportunities) a student who drove to a party to come to the aid of an intoxicated friend who needed a ride home. The initial story was that the school suspended Cox for violating its zero tolerance policy in regard to drugs and alcohol even though Cox was not intoxicated. The police were there when she arrived and released her to go home because she had not been drinking. She later put forward evidence to verify her story.
The school suspended her anyway and she brought suit in a local state district court to enjoin the suspension. Thinking it would be an open and shut case of mistake, Cox’s mother appeared without an attorney. The school board, however, arrived with its attorney, who alleged that the school suspended her because she was arrested. The initial basis for suspension, as I understood it, was that she had violated the zero tolerance policy on alcohol. According to school’s student handbook, student athletes are forbidden from “knowingly being and remaining in the presence of other minors using alcohol or illegal drugs or controlled substances.” But since the police were there and blocked her from “being at the party,” suspending her on that ground seems problematic. The school must have realized the logical problem at some point because in court it defended on slightly different grounds. The school’s attorney asserted that Cox had been arrested at the party, suggesting that the arrest was a basis for suspension. At that point, the mother protested that the daughter was not arrested and, when the other side pressed its point, she said they were lying.
Wednesday, October 9, 2013
With at least 116 single-sex public schools across the country and 390 more single-sex classes in some subjects, Professors David Cohen (Drexel/Earle Mack) and Nancy Levit (UMKC) argue that gender-segregated education is long due for review by the U.S. Supreme Court. In their new article, Still Unconstitutional: Our Nation's Experiment with State Sponsored Sex Segregation in Education, the authors present their case that “sex segregated education violates the Equal Protection Clause, it has no “exceedingly persuasive justification” and instead exacerbates “outdated stereotypes” while “create[ing] [and] perpetuate[ing] the legal, social, and economic inferiority of women.”” An excerpt from the introduction to Still Unconstitutional: Our Nation's Experiment with State Sponsored Sex Segregation in Education (Seton Hall Law Review, Vol. 44, 2014, forthcoming) is below:
The United States is seven years into an experiment with segregation in public education. This experiment, unlike the race segregation found unconstitutional in Brown v. Board of Education, is based on sex segregation. The experiment has benefitted from a peculiar alliance of political forces: conservatives, who have long believed that separation of the sexes is natural and appropriate, and some liberal groups, who see separatism either as a tool of liberation or as the lesser of bad alternatives compared to a flawed coeducational system. It resonates with a society that believes that men and women (and thus boys and girls), though equal, are inherently different. However, with seven years of experience with federally-sanctioned sex-segregated public education under the country’s belt, the arguments against sex segregation in public schools are even stronger than they were before the experiment began. Like the inherently unjust system of de jure race segregation that existed in this country, the current experiment is also unconstitutional.
In this article, we argue that this experiment must come to an end because it is educationally unsound, fundamentally discriminatory, and patently unconstitutional. We reach these conclusions by first reviewing the events that have led to state endorsed sex segregation in this country, the resulting expansion of such educational opportunities, and the legal developments since then. We break down buzzword justifications such as “choice” and “diversity” and highlight new research into brain differences (or lack thereof), educational outcomes, and sex stereotyping. In the process, we hold this expansion to the rigorous heightened scrutiny test employed by the Supreme Court for sex classifications and find that, like segregation based on race, segregating students based on sex violates the Equal Protection Clause.
Either OCR has been engaged in vigorous enforcement and negotiation over the past few months or it has been doing a better job of working the media to get the news out. In recent weeks and months, I posted on OCR settlement agreements eliminating single sex education, expanding athletic opportunities for females, and ensuring racially equal access to AP classes. All of these settlements were important in their own right and should provide good precedent in subsequent complaints.
Now, last week OCR announced another settlement in regard to equal access to athletics with the District of Columbia Public Schools. This agreement, however, is not quite as remarkable as the others. This agreement does not require DCPS to expand opportunities for females. Rather, it requires the district to closely monitor student interest, participation and disparities. In the short term, it must administer a student interest survey and, if it finds that females are under-served, it must take action to increase opportunities or demonstrate that they already receive proportional opportunities. In other words, as Neena Chaudry of the National Women's Law Center says, it is a "good first step," but she cautions that there are also inequalities in coaching and athletic facilities that the neither the settlement agreement nor the district addressed.
As a matter of procedure, OCR seems to have done a good job of boxing the district in by agreeing in advance to act upon the survey results. On the other hand, I am sure advocates remain anxious regarding whether the district will follow through in good faith. The available data seems to already show significant disparities, which begs the question of why the district is taking steps to delay action, rather than agreeing to do so now. One possibility is that the survey mechanism allows the district to save face by not admitting past error. It also gives the district the opportunity to appear that it is immediately acting once it discovers inequities in the survey.
Monday, October 7, 2013
The Young Conservatives of Texas appear to be displeased with the outcome of Fisher v. Texas, which upheld the use of race in higher education admissions (although it indicated it wanted a more rigorous narrowly tailored prong review). The Young Conservatives, in a repeat performance of the 2011 diversity bake sale at Berkeley, CA, held a bake sale in which whites would be charged the highest price for brownies at $2, followed by Asians at $1.50, Latinos at $1, Blacks at 75 cents and Native Americans at 25 cents. Women of all races and ethnicities received an additional price break of .25 cents.
A few points of note. First, the struggling economy has held the cost of affirmative action in check. These prices are the exact same ones offered at Berkeley in 2011. I only wish the same were true for potato chips and fountain sodas.
Second, the price differentials are interesting. Conservatives seem to think affirmative action costs whites more than any one else and that everyone but white males benefits from affirmative action. I am skeptical of the notion that it "costs" any racial group anything. Regardless, the young conservatives seem to miss the fact that there are few, if any, higher education diversity programs that treat Asians' ethnicity as a plus factor. In other words, even if the young conservatives general premise is true, I am afraid they are selling brownies too cheaply to Asians. Asians should make a run on the brownies and hold out until the next sale, when surely the average price of brownies will increase, along with a sharp increase on the price for Asians.
Finally, I think they really missed the boat on gender. State universities have more often, in recent years, tilted the scales in favor of men, since women tend to outperform men in high school, particularly in terms of GPA. Remember Johnson v. Board of Regents of the University of Georgia, 263 F.3d 1234 (11th Cir. 2001), where the University was pressed to give up its affirmative action for white males in the state. While formal boosts for white males have waned for obvious reasons, my understanding is that some universities still employee certain procedures that discount high school GPAs so as to help enroll a slightly higher number of white males and prevent women from overrunning the campus. So it seems men should be getting the 25 cent discount, not women. Then again, maybe the young heterosexual male conservatives who got into the University of Texas support affirmative action for women. The problem is that, given the number of women at flagship universities, the Young Conservatives may go bankrupt unless they are keeping a very close eye on their costs.
Tuesday, October 1, 2013
Thursday, September 26, 2013
Protecting and preventing sexual violence has been one of the ED’s priorities this year, notably with the agency’s “Dear Colleagues” letter sent in the spring. However, activists continue to have serious concerns about colleges’ treatment of rape victims. Last week, the LA Times reported that Occidental College quietly settled with at least 10 of 37 sexual assault victims who signed a federal complaint about rape on campus. The disturbing part of the settlement is that in addition to payments, Occidental allegedly barred the complainants from any further participation in the Occidental Sexual Assault Coalition, the campus group that organized the campaign that resulted in the federal investigation. The attorney representing the ten complainants, Gloria Allred, said that she could not speak about the settlement, but the Occidental professor who organized the federal complaint is speaking out against its terms. Danielle Dirks, a criminology professor, told the Times that requiring “the women to remain silent and not to participate in campus activism could have a chilling effect at Occidental.” The settlement, Dirks said, “effectively erases all of the sexual assaults and the college’s wrongdoing.” Investigators from the federal Office for Civil Rights are expected to visit Occidental soon to investigate the complaint. The Tennessean is also running a series about the rape case involving members of Vanderbilt University's football team and steps that the school is taking to stop sexual violence on campus.
Thursday, September 12, 2013
This past April, the documentary Bully was released. Last night, I finally got the chance to watch it. While the stories in the documentary were not "news" to me, it was very difficult to watch. The movie follows the lives of five different children in four different states: two, seemingly middle class, white children; a white female, who came out as gay in middle school; an African-American female, who was an honor student and basketball player; and a white middle school boy, who had been born premature and had some physical effects as result (I am not sure whether they would qualify as disabilities). The two middle class kids had committed suicide. The white female was subject to physical assault, and verbal harassment by both teaches and students. The African American female had apparently be subjected to harassment, but her story focuses on her response, which was to bring a gun to school to stop the harassment (prior to the documentary). The other white student was subject to severe verbal harassment, threats, and physical violence.
Alabama State University was awarded $1.54 million grant from the National Institutes of Health on Monday, which makes ASU’s other recent newsworthy event—in the form of a scalding opinion from the 11th Circuit Court of Appeals—all the more embarrassing. In Weatherly, et al. v. Alabama State University, released last week, the circuit court upheld a hostile work environment and retaliation verdict for over $1 million against the university. You know that a case will be bad when it opens with a statement that it “should greatly concern every taxpaying citizen of the State of Alabama, especially because it involves a public institution largely funded with tax dollars.” Three ASU female employees alleged that they were racially abused and sexually harassed while working for two ASU administrators: Dr. John Knight, Jr., Executive Vice President and Chief Operating Officer, and LaVonette Bartley, an associate executive director. The plaintiffs—two of whom are black and one is biracial—were repeatedly called racial slurs by Bartley. Bartley once called one of the women’s sons, a 7-year-old, a racial epithet in his presence. Bartley also routinely commented on the women’s bodies, touching them and pressing against them at their desks. When one of the women complained to Knight about Bartley’s conduct, Knight said that he “was not going to walk on eggshells around [his] office" and that no one was going to tell him “ how to run his office.” (Knight also allegedly made sexual and inappropriate comments to one of the plaintiffs.) Knight warned employees that if they contacted the EEOC, they would be terminated. He made good on that promise by terminating two of the plaintiffs shortly after they filed EEOC complaints. ASU appealed the trial verdict, raising three issues: that the district court abused its discretion by denying ASU’s motion to sever, that the district court erred in finding that the women were entitled to front pay; and that the district court should have granted ASU’s (untimely) motion for judgment as a matter of law timely, or in the alternative, its 60(b) motion. The Eleventh Circuit disposed of these appellate claims on procedural grounds. (Quite frankly, given that ASU did not timely raise its claims below, it probably should not have bothered to appeal at all. Experts estimate that after attorneys’ fees, court costs and interest are added to the plaintiffs’ recovery, ASU’s bill could be more than $3 million.) The circuit court closed its opinion with a blistering indictment:
We are left to speculate who is in charge at ASU. Regardless, however, we are unnerved by the apparent acquiescence to, if not outright condoning of, the abusive work environment created by its high-level employees. Such conduct simply has no place in a work environment, especially at a publicly funded university.Read the opinion in Weatherly, et al. v. Alabama State University here.
Tuesday, September 3, 2013
The Second Circuit in KF ex rel CF v. Monroe Woodbury Central School Dist, 2013 WL 4525209 (2d Cir. 2013), held that the school district was not deliberately indifferent to two years of peer-on-peer bullying, which included two instances of sexual assault. The victim became extremely anxious and began harming herself. The key fact in avoiding liability was that the young woman kept the incidents to herself. Thus, the school was not on notice of them and could not have been deliberately indifferent under controlling Supreme Court precedent. Assuming the court recounted the facts correctly in its opinion and that the school did not obtain notice through some means unknown to the court and the girl's parents, the court probably got this one right. The question then is why this case was brought.
Monday, July 29, 2013
In Hill v. Madison County School Bd., 2013 WL 3712330 (N.D.Ala.,2013), a female student filed Title IX, Equal Protection, Substantive Due Process, and various state law claims against the school district and its employees for an alleged sexual assault/rape by one of her male classmates. The facts of the case are extensive. It suffices to say that the male student had been disciplined in some form or another for around a dozen different incidents. Most of the incidents were non-sexual in nature and were directed at different students. A few, however, were sexual in nature and disciplined by in-school suspension and a short term suspension.
Eventually, his sexual advances and harassment were directed at plaintiff. The first few times, she did not notify the school, but when he asked her to meet him in the bathroom for sex, she told two teachers. The teachers then concocted a plan whereby the girl would agree to meet him in the bathroom so that they could catch the boy in the act. They also informed a principal of this plan, who apparently did nothing to stop or prevent the plan. The plan, however, went awry because the teachers did not get to the correct bathroom in time When the arrived, the boy had already pulled down the girl's clothes and attempted to have sex with her against her will.
Friday, June 28, 2013
A newly decided case, Glowacki ex rel v. Howell Public School Dist., 2013 WL 3148272 (E.D. Mich. 2013), involves the tension between preventing bullying in school and respecting students' free speech rights. During Anti-Bullying Day at Howell High School, plaintiff was thrown out of a teacher’s classroom for saying, among other things, “I don’t accept gays.” The plaintiff sought an injunction and declaratory relief against defendant, alleging a violations of the First Amendment.
Relying on Tinker v. Des Moines, the court held that the plaintiff’s comments were protected by the First Amendment’s Free Speech Clause, as they were an expression of his opinion rather than harassing behavior directed at other students. The court rejected the teacher's claim of qualified immunity for the claims against him personally, but held that the school district was not liable for the teacher's violation of the student's rights because the district's "policies comport with the school speech standard set forth in Tinker and are therefore constitutional. At most, the School District negligently adopted a policy that posed a risk to the First Amendment rights of its students and negligently failed to provide training on the intersection of anti-bullying policies and the First Amendment.” But the court found that the plaintiffs' allegations were devoid of facts indicating that the district was negligent in training its teachers.
The case is also interesting for its substance and because it cites to one of our colleagues in regard to its analysis of whether the student's speech was protected. The relevant section reads as follows:
There is no indication from the evidence here that the negative comments Daniel made about homosexuality threatened, named, or targeted a particular individual or, for that matter, that Daniel even knew that there was a homosexual student in his economics class. (McDowell Dep., McDowell's Mot. Summ. J. Ex. B, at 80:13–17.) Given that the speech did not identify particular students for attack but simply expressed a general opinion—albeit one that some may have found offensive—on the topic of homosexuality, the Court finds that Daniel's expressive conduct did not impinge upon the rights of other students. See generally Emily G. Waldman, A Post–Morse Framework for Students' Potentially Hurtful Speech (Religious and Otherwise), 37 J.L & Educ. 463, 468–69, 499–503 (2008) (suggesting a framework for analyzing potentially hurtful student speech by asking whether the speech was directed at a particular individual, and if not, assessing the impact of such speech on the educational performance of students hearing the speech).
For those who read in full, you will see that it broaches serious issues and one could query the extent to which the student's behavior could be interpretted was to do more than just express his opinion, but I will leave it to Professor Waldman to tell us whether the court applied her principle correctly. Regardless, Kudos to Professor Waldman, who shows that our scholarship is relevant both in the classroom and in court.
For those interested in knowing a little more about Professor Waldman's article, she shared, at my request, the following explanation:
My article suggested that, in analyzing whether potentially hurtful student speech warrants protection, courts should distinguish between (1) speech that identifies particular students for attack and (2) student speech that is primarily commenting on a political, social, or religious issue. I argued that schools should have broad rein to restrict the first category, but should only be able to restrict speech in the second category when there is a real likelihood that the speech will substantially disrupt the education of at least one other student. I was very pleased to see that the district judge in this case found this distinction helpful.