Title IX Litigation in Montgomery County, Georgia

From a reader, I learned of a Title IX retaliation suit that was filed in federal court recently against the Montgomery County (Georgia) Board of Education. The plaintiff, Christopher Bowman, was a teacher at Montgomery County High School until he was fired, he alleges, because he provided evidence to state officials of a sexual relationship between the guidance counselor, Carrie O'Connor, and a 16-year-old male student. Soon after cooperating in the state's investigation of the charges against O'Connor, Bowman was informed by the district superintendent of his termination -- ostensibly, for "insubordination." Incidentally, the superintendent, Dale Clark, is also O'Connor's mother. Bowman alleges that Clark also sabotaged his efforts to find employment with other school districts in Georgia.

Though a jury recently cleared O'Connor of criminal charges due to insufficient evidence to substantiate the victim-student's claims, this will not have an affect on the legal arguments in Bowman's suit. That is because Title IX protects whistleblowers who reasonably believe that a violation of the statute -- here, severe and pervasive sexual harassment -- has occurred. Otherwise, whistleblowers would only come forward if they were absolutely certain that a violation had occurred, which is to say, hardly ever.

Bowman's suit is not the only Title IX case arising out of this circumstance. The victim's mother has also sued the school district, claiming among other things that the district violated Title IX in failing to protect her son from the guidance counselor's sexual conduct, which could qualify as severe and pervasive harassment under Title IX. Though the outcome of O'Connor's criminal trial -- especially the fact that the jury returned its "not guilty" verdict within 30 minutes -- casts some doubt on the viability of this case, it does not necessarily foreclose it as a matter of law. The plaintiff need only prove that it's more likely than not that the sexual misconduct occurred, where the state had to prove it beyond a reasonable doubt.

School's Response to Teacher's Sexual Misconduct Did Not Violate Title IX

A teacher in Georgia showed students digital pictures of his genitals, but a federal district court concluded that the school's response was sufficient to forestall liability under Title IX.

In February 2005, a teacher at Lamar County High School overheard students discussing that their history teacher, Tyshon Byrd, had shown them pictures of genitals that were on his cell phone. The teacher informed the assistant principal, who informed the principal. For one week, the principal investigated the charges against Byrd, interviewing both the students whom the teacher had heard, as well as a number of students from Byrd's class who were selected at random. (The principal also attempted to discover whether there were in fact inappropriate pictures on the Byrd's cell phone, but such evidence was not found.)

Based on the students' consistent reports, the principal held a meeting where students presented their charges in the presence of Byrd and other school officials. Byrd was subsequently terminated.

A lawsuit was then filed by some of the students who had seen the photos. However, the court determined that, prior to the learning of the digital photos, the school district did not have actual notice of that Byrd posed a sexual threat. Moreover, the district's response --investigating the students' claims for one week, and then terminating Byrd after confirming the students' story -- was not deliberate indifference required to satisfy the standard for liability under Title IX.

This case clearly illustrates how tough the deliberate indifference standard can be for plaintiffs, as it seems to me pretty unreasonable to leave a teacher in the classroom as credible evidence confirming his sexual misconduct began to mount. In fact, I wonder if the court thought the plaintiffs' harm -- "only" being subjected to the anxiety of remaining in a teacher's classroom after being subjected to photographs of his genitals -- was trivial, and let that assessment cloud the question of liability. Of course, this anxiety could be emotionally damaging to students, especially to those with a sexual trauma history, as my psychologist friend points out. But to more clearly illustrate the point: what if the Byrd had sexually assaulted a student after the principal's week-long investigation had begun and before he was fired? Would the court have been more likely there to conclude that the principal's decision to leave the teacher in the classroom for that whole time amounted to indifference? If so, there should be no different result here on the question of liability, only, perhaps in the assessment of damages.

Decision is: Brown v. Lamar County School Dist., 2008 WL 4500135 (M.D.Ga. Sept. 30, 2008).

Private School League Benches Female Kicker

Via New Moon Girls blog, I found this story from ESPN.com about Kacy Stuart, a female freshman at New Creation Center, a private high school near Atlanta, who was recently dismissed from her position as kicker for the school's football team, after a ruling by the private school conference to which New Creation belongs.

The article points out that Kacy had no trouble playing football when she attended public middle school, but it is wrong (sorry, NMG blog!) to credit Title IX for Kacy's public school football career. Since football is a contact sport, Title IX does not require schools to allow girls to try out. Rather, it is the Constitution's Equal Protection Clause that has in many cases required schools and other public entities to give girls equal access to football and other contact sports. But the trouble for Kacy is that the Equal Protection Clause does not govern private schools, so the Georgia Football League can discriminate all it wants.

This case is a good example of why Title IX's contact sports exemption is harmful and should be repealed. When it comes to private schools -- at least, those private schools that accept federal funds in some form, as many do -- Title IX is the only source of federal law that prohibits discrimination against students on the basis of sex. Thus, the statute should be comprehensive in its coverage of sports, and not exempt football due to some outdated, essentialist idea that it is categorically inappropriate for girls.

ACLU Wants Greene County Segregation Plan

The ACLU is invoking a state open records law to request a copy of the plan to segregate schools by sex that Greene County, Georgia, abandoned last month. Because the county indicated that it would go forward with this or a similar plan in the future, the organization is concerned that the county is relying on stereotypes and "questionable 'brain science' theories that suggest that boys and girls should be treated radically differently." The ACLU points out that there is no scientific consensus that single-sex education is beneficial to students, something recognized even by the Department of Education, whose regulatory change in 2006 paved the way for single-sex public education.

I'm glad that the ACLU is requesting the plan. If, as they suspect, it contains a demonstrably false or questionable scientific premise (or no premise at all), it will raise awareness about the absence of critical thinking around this issue.

Georgia County Backs Off Single-Sex Education Plan, For Now

Last month we posted about Greene County, Georgia, and its plans to convert all of its public schools to a single-sex model.

Recently, however, the County changed its mind, and will formally withdraw those plans at an upcoming meeting. According to the AP, the County faced "a groundswell of opposition from parents who were outraged that they weren't consulted ahead of time." This leaves open the possibility that the County might reinstate its plan, or some other version of the plan, after it receives input from parents and teachers.

Of course, the parents might really be outraged, not that they weren't consulted, but that the County is trying to pigeonhole their sons' and daughters' attitudes and behaviors based on gender stereotypes. In that case, their buy-in might be hard to come by.

UPDATE 4/1: The link to the AP story above is no longer working, but other news outlets reported on Greene County's change of heart, see here and here.

Entire Georgia County Moves to Single-Sex Schools

Even the National Association for Single Sex Public Education thinks that Greene County, Georgia, is going too far in its plan to convert the entire district to single sex schools by next fall. Hundreds of school districts have incorporated single-sex education into their curricula since the Department of Ed made it legal in 2006, but this is the first time the practice has been implemented county-wide.

The superintendent says the move is necessary to improve test scores and graduation rates and to reduce pregnancy and disciplinary problems in this poor, rural school district. But NASSPE's Leonard Sax told the Atlanta Journal-Constitution that the county's move was likely illegal, since parents must also have the option of a public coeducation as well. He further described Greene County's action as "embarrassing" and "the worst kind of publicity for our movement" because it "misses the whole point" of creating a single-sex alternative to coed classrooms so that parents can choose what's better for their children.

I think, of course, that the district's policy is extremely troubling. As I've said before, I'm skeptical of the claims of benefits from single-sex education and I think that schools should raise test scores and graduation rates in other ways that don't rely on and promote the myths that all boys learn one way and and all girls learn another way. I think the fact that NASSPE finds itself now in the position of arguing against single-sex education proves how dangerous it is to promote the difference theory. Of course our culture, susceptible as it is to a hegemonically-induced mythology of natural gender differences, would hear an argument that some classrooms should be segregated and generate from that the belief that sex-segregation is a magic bullet for all educational challenges in all educational settings. How did NASSPE not foresee that?

Does your AD know Title IX?

I was going to let this editorial in an online news source out of Athens, Georgia go unremarked upon despite the egregious misinterpretations of Title IX the author presents. Initially I thought the author to be perhaps a naive student journalist or an uninformed community member/fan. But this piece was written by former University of Georgia senior athletic director Dick Bestwick, who is also a former football coach.
So it is not surprising to hear him say, as many football coaches have and continue to do, that football should be exempt from the Title IX equation. In other words, they support proportionality so long as you don't have to count one of the teams. I don't think I have to really point out here that this sets up football players and programs as somehow "more equal" than everyone else--men and women.
But I was most surprised at Bestwick's interpretation of proportionality as a policy that mandates distribution of opportunities and money based on the gender breakdown of the undergraduate population. Proportionality is a policy that applies only to one aspect of Title IX compliance: accommodation of interests and abilities. How much money is spent is another category that is not subject to a proportionality standard. There is no formula for determining which gender or which team gets how much money, but there is a standard of equity that allows investigation into budget line items that seem to be providing greater benefits to male athletes over female athletes.
In other words, equipment budgets do not have to be equal for men and women so long as everyone is receiving the same quality of equipment. But there are areas where monies need to be distributed equally. For example, per diems need to be the same for male and female athletes--though the overall amount spent on a team will of course differ based on the size of the team.
That someone (formerly) in sports administration at a big-time athletics school does not know the difference between proportionality and equitable budgeting is worrisome.