Sexual Harassment Roundup

Here is a roundup of some recent sexual harassment cases.

• Title IX claims based on a teacher's inappropriate relationship with a student failed for lack of actual notice. "The complaints against Sweet were nothing more than specific facts that she was a poor teacher. But, mere suspicions are insufficient to prove actual knowledge that Sweet engaged in misconduct." Doe v. St. Francis Sch. Dist., 2011 WL 6026612 (E.D.Wis. Dec 05, 2011).

• A district court dismissed Section 1983 claims against a middle school principal in his individual capacity, finding that the complaint against him did not allege conduct that would put him outside the realm of qualified immunity from suit. Specifically, the court held that the complaint did not satisfy the standard set forth in the Supreme Court's ruling in Ashcroft v. Iqbal because it did not specifically allege that the principal acted with discriminatory intent. C.C. ex rel. Andrews v. Monroe County Bd. of Educ., 2011 WL 6029758 (S.D.Ala. Dec 05, 2011).

• A district court in California dismissed most of the claims arising from the harassment of an openly-gay student who committed suicide. Specifically, the plaintiff--the deceased student's mother--did not allege sufficient facts to support a conclusion that teachers participated in the sexual harassment of her son. Some of the plaintiff's allegations of harassment by teachers failed because it was not clear they were targeting the victim because of gender non-conformity; the remainder failed because alone they were not sufficiently "severe or pervasive" as required for institutional liability to attach. Other claims under 1983 and the Equal Protection Clause against school district officials in their individual capacity, based on survived a motion to dismiss. Walsh v. Tehachapi Unified School Dist., 2011 WL 5156791(E.D.Cal. Oct 28, 2011).

And this decision is several months old, but it just showed up on my radar, and is worth noting:

• A district court in New York dismissed a lawsuit against a school district in which the plaintiff alleged she was harassed by fellow students after another posted photos of her in a sexual encounter with another female. The district court confirmed that Title IX does not cover sexual orientation, so harassment in which the plaintiff was called derogatory names for a lesbian was not actionable. Nor did school district officials have actual notice that the pictures had been posted (on a non-school-related website) or that they had been set as the "wallpaper" on school district computers, and when they did find out, they acted promptly to remove the pictures from the internet and the school computers. Finally, "defendants' purported failure to immediately alert plaintiff's parents or “the authorities” to the existence of pictures of plaintiff on the internet does not establish a triable issue of fact because, inter alia, such failures did not subject plaintiff to harassment, or make her more vulnerable to it." Tyrrell v. Seaford Union Free School Dist., 792 F.Supp.2d 601 (E.D.N.Y. Jun 01, 2011).

More re-integration

Another school district in Alabama has opted to end its single-sex middle school classrooms.
Tallapoosa School District has said it will stop its single-sex program at the end of this year. This program had been in place for several years and, despite being legally required to, did not provide opt-outs for students/parents who did not want to be educated in single-sex classrooms.
The program began because of alleged hormone-induced behaviors that required disciplining.

Softball coach takes on football

Usually when we hear about a complaint filed by or on behalf of softball players, said complaint usually compares the treatment softball receives or the facilities it has access to as compared to baseball. But a recent complaint, initially filed anonymously and then admitted to by the softball coach at Theodore High School in Mobile County Alabama, compares the treatment the team get to that of the football team. Perfectly legitimate of course and we have been somewhat concerned by all the softball versus baseball references because that, of course, is not how Title IX compliance is measured.
Coach Tyler Murray seems to be a brave person to take on football in Alabama but her version of the facts is pretty compelling. OCR has already done its site visitation so a report is likely forthcoming.
Murray says that her team does not have access to the same kinds of facilities as the football team nor have they received the same portion of donations to the athletic department. The weights her team (and others worked out on) were removed from the weight room they used. They spent most of their season working out in hallways and the shower area. She alleges that 40 percent of the equipment was damaged because of the move which resulted in some of the pieces being put outside where they rusted. And when her players tried to use the weight room the football team uses, they were kicked out, she said.
After the complaint was filed, the high school converted an art room into a weight room.
Murray also noted that football coaches get paid more than other coaches. The response to this complaint was that this is a nationwide trend. Not exactly a compelling retort.
Her issues have been with her athletic director who, not coincidentally, is also the football coach. He will not comment on the complaint, only saying that he is in compliance. Murray said she had accepted that she and her team gets less, but that her tipping point was when what she had began being taken away from her.
Interestingly, the quotations from the superintendent's statement refers to the law as "Title Nine." This worries me a little. But I am looking forward to hearing what OCR found during its September visit.

ACLU Settles With Sex Segregated Middle School

The ACLU backed off of its threats to sue Mobile County, Alabama, after the county agreed to stop its practicing of segregating the entire student body at Hankins Middle School by sex for all classes and activities.

Under the settlement agreement, elective classes and nonacademic activities (such as lunchtime) are immediately re-integrated. The county also agreed that as of next school year, all courses will be integrated and no school will institute any sex segregated programs for the next three years. For two years following that three-year moratorium, any plans to institute new single-sex programs must go to the ACLU in advance.

As we noted in earlier posts, Mobile's decision to segregate an entire middle school likely violated Title IX regulations, which allow experimentation with same-sex instruction but only where parents have notice and an opportunity to opt out. It was also almost certainly a violation of the Equal Protection Clause, since such broad-based segregation was not narrowly tailored to a persuasive justification. Parents were concerned, moreover, that single-sex classrooms were being used to teach kids "ideas about gender that come from the dark ages." For example, a language arts exercise for girls asked them to use as many descriptive words as possible to describe their dream wedding cake. The boys' assignment was to brainstorm action verbs used in sports.

Though single-sex classes are popping up all over, only Hankins Middle School had taken the drastic step of converting its entire school to a single-sex model. The ACLU's successful settlement will likely deter other schools from going to similar extremes. Perhaps it will even give schools pause before engaging in more limited experiments with single-sex education.

WATN? Coach Roderick Jackson of Birmingham

In the spirit of WHB's "where are they now?" feature, I note that Roderick Jackson, the girls high school basketball coach who brought the successful and groundbreaking Title IX retaliation case against the Birmingham Board of Education, is back in the coaching game -- though coaching a different game. Jackson announced yesterday that he has been hired to coach the girls soccer team at one of the Birmingham high schools, where he will be "building a program from scratch." The article raised the possibility that this new position is part of a settlement agreement between Jackson and the school district. Though Jackson's retaliation case settled in 2006, Jackson has continued to challenge what he argues is the district's failure to comply with the terms and conditions of the agreement that they had reached.

Segregated Alabama Middle School Challenged by ACLU

Earlier this year, the Mobile County School System segregated the entire student body of Hankins Middle School by sex. This is the most drastic form of public school sex segregation to date, as it applies to an entire school, leaves parents with no option at all for coeducation, and according to the ACLU, "goes so far as to punish boys and girls who are caught speaking in the hallways."

The ACLU recently informed (.pdf) the school district of the patent illegality of the single-sex program at Hanksins. While recent revisions to the Title IX regulations allow schools more leeway than ever before to experiment with single-sex education, single-sex programs must be voluntary. By leaving Hankins parents no alternatives but segregated classrooms, the school district violates this requirement. Moreover, the middle school program almost certainly violates the Constitution's Equal Protection Clause, which requires gender-based distinctions to be backed by "exceedingly persuasive justifications" have been defined by the Supreme Court to exclude generalizations about tendencies (such as, in learning style) of the respective sexes. It is also hard to imagine what kind of "exceedingly persuasive justification" accompanies the rule that girls can't talk to boys in the hallways and vice versa.

If the school district doesn't make changes, the ACLU will file suit. I predict it will win on summary judgment.

One other interesting thing about the ACLU's challenge: in its letter to the school district, the ACLU points out that the district is not only violating the Department of Education's regulations on single-sex education under Title IX, but that it runs afoul of the U.S. Department of Agriculture's nondiscrimination requirements as well. The USDA prohibits any school that receives school lunch program grants from "carry[ing] out any of its education program or activity separately on the basis of sex." See 7 C.F.R. § 15a.34. This means that if the USDA decides to enforce this regulation, it could withhold school lunch program funds from Hanskins Middle School, along with any other of the 100,000+ public and private schools that participate in the National School Lunch Program that elect to operate sex-segregated education programs.

Via Feminist Daily New Wire.

More on Millry

Last month I wrote briefly about complaints about the treatment of the Millry (Alabama) School's softball team. According to this recent article about the complaint put together by parents, the document was never given to the Title IX representative because it contained two forged signatures.
But Millry officials have addressed the allegations despite the lack of a formal complaint. According to the athletic director, Teddy Taylor, he has never received any complaints about softball. But he seems to put the responsibility for field conditions back on the complainers:
"When you see the condition of the softball field," he continued, "you are going to wonder why those 27 people who complained have not been working on the softball field or had the work done."
Apparently a used John Deere was given to the "softball group" (not sure who these people are) but it no longer works.
There is speculation that the Title IX complaint developed out discontent over the fact that the softball outfield is used for overflow football stadium parking. Taylor said they can't use the baseball field for such a purpose because that field has a sprinkler system installed and parking on it would destroy it. A logical explanation but one that begs the question: why does the baseball field have a sprinkler system and the softball field does not?
But unless the complaint actually gets delivered we probably will never know the real story nor will the school be forced to formally address the allegations.