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.
Thursday, June 13, 2013
Late last year, the ACLU filed an adminstrative complaint with the Office for Civil Rights regarding a Birmingham, Alabama, middle that operated a sex segregated program. The district just entered into an agreement with OCR to end the sex segregation. The facts sound like something from a bygone era. Cribbing from the ACLU release:
Huffman [Middle School] had been separating boys and girls in every grade for all core curriculum classes, homeroom and lunch, on the theory that there are "hard-wired" differences between boys' and girls' brains requiring them to be taught differently. . . Pop theories of hard-wired brain differences between boys and girls have been debunked by neuroscientists, psychologists and educational researchers. Even Birmingham CSD testing researchers were unimpressed with the results of sex separation at Huffman. Analysis of student test results in the areas of reading and mathematics at Huffman and other Birmingham schools that had experimented with sex separation showed no clear pattern of improvement after the initiation of single-sex programs, and the researchers concluded: "There is no definitive proof that the percentage of students scoring proficient is significantly impacted by students being taught in same gender classroom settings.
More on this story here.
Thursday, June 6, 2013
Last week, a federal district court in M.D. v. School Bd. of City of Richmond, 2013 WL 2404842 (E.D. Va. 2013), dismissed a six-year old African American child's claim that his school had been deliberately indifferent to racial and sexual harassment. The child alleged:
Between February and the end of April 2013, other children—identified only as
children of Hispanic ethnicity—persistently teased Plaintiff on the basis of his
race and perceived sexual orientation. ( Id. at ¶¶ 9–12.) Specifically,
the other students repeatedly and continuously directed vulgar and offensive
racial epithets at Plaintiff, verbally abused him, physically assaulted him, and
stole his property. ( Id. at ¶¶ 10–12, 23.) The other students also
insinuated that Plaintiff was gay, apparently owing to Plaintiff's non-violent
demeanor. ( Id. at ¶ 12.) In short, the Plaintiff was subjected to what
might be properly characterized as severe bullying. ( Id. at ¶ 23.)
Ultimately, this led Plaintiff to suffer extreme emotional damage and a fear of
school, even after he later enrolled in a new school. ( Id. at ¶¶ 13–14,
The court reasoned that: a) the sexual harassment was based on perceived sexual orientation rather than gender, the later of which the court indicated is necessary to state a claim; and b) the student transferred to another school before the defendant had an opportunity to address the problem; thus, it was not deliberately indifferent to his parents' complaints.
The court's recitation of the facts is limited, but this case raises a few serious issues. First, other courts have not so easily dismissed claims related to sexual orientation claims, as they posit the question is whether a student is being harassed for failure to conform to gender stereotypes. Nabozny v. Podlesny,92 F.3d 446 (7th Cir. 1996);Higgins v. New Balance Athletic Shoes, Inc., 194 F.3d 252, 261 n.4 (1st Cir. 1999); Schmedding v. Tnemec Co., 187 F.3d 862, 865 (8th Cir. 1999); Doe v. S.E. Greene Sch. Dist., 2006 U.S. Dist. LEXIS 12790 (W.D. Pa. Mar. 24, 2006); Schroeder ex rel. Schroeder v. Maumee Bd. of Educ., 296 F. Supp. 2d 869, 879-880 (N.D. Ohio 2003); Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081 (2000); Carrasco v. Lenox Hill Hosp., 2000 U.S. Dist. LEXIS 5637, 2000 WL 520640, at *8 (S.D.N.Y. Apr. 28, 2000). This court does not address this precedent.
Second, at such a young age, it seems extremely dangerous to speculate as to what this child's sexual orientation is or is not. This court seems to suggest he is heterosexual, but other students perceive him as gay. Again, I am not sure it matters if the question is whether he is being harassed for failure to confirm to gender stereotypes.
Third, the court's best argument is that none of this matters because the district's reaction cannot be shown to be clearly unreasonable because the student transferred by the time the district expressed a willingness to come up with an intervention plan. The court, however, does not explain why as a matter of law plaintiff's allegations that the school did almost nothing for over a month (which is what led to the transfer and distrust) does not state a claim. I wonder how long any parent would leave their six-year child in this situation if the parent had other options. Is the implication of the court's holding that a parent only has a claim if they take a wait and see approach with the harassment?
Tuesday, June 4, 2013
In doing research for my casebook, I came across a few articles that identified the conflicting and outdated rules that could prevent transgendered athletes from participating in atheletics at all. The NCAA, to its credit, had taken some steps to address the issue. Unfortunately, however, this has been a reletively underdeveloped of the law. I am glad to see that others are continuing to write about it. I just picked up this article yesterday:
Elizabeth M. Ziegler & Tamara Isadora Huntley, “’It Got Too Tough to Not be Me’:
Accommodating Transgender Athletes in Sports”, 39 J.C. & U.L. 467 (2013). Cribbing from its abstract: “This Article will argue that there is a need for standards to ensure that the transgender student-athlete does not encounter problems with participation due to inconsistent rules for state eligibility, conference and tournament eligibility, and national competitive tournaments. Furthermore, inclusion, equal opportunity, and acceptance should be the goals when establishing such standards …. Finally, such standards should be the goal because of the numerous positive effects of athletic participation, including, physical, social and emotional wellbeing, self-discipline, teamwork, and learning how to deal with success and failure.”