OCR Rejects 900 Complaints About California High Schools

Last fall we blogged about the large number simultaneous complaints filed with the Department of Education's Office for Rights about Title IX violations in Oregon, Washington, and Idaho high schools. In those cases, anonymous complainants used public data from the OCR's 2006 Civil Rights Data Collection to identify hundreds of high schools in these states in which girls had disproportionately low number of athletic opportunities and no evidence of continuous effort to increase those opportunities. OCR's regional enforcement office, likely overwhelmed with the high volume of complaints, dismissed them for insufficient allegation that the school districts were also in violation of prong three of the three-part test for determining whether athletic opportunities are equitably distributed based on sex. Prong one requires proportionality, prong two requires continuous program expansion for the underrepresented sex, and prong three requires no unmet interest among the underrepresented sex. Schools only need to comply with one of the prongs.

Gone unnoticed in the press is a similar mass complaint alleging Title IX violations in 900 California high schools, using similar basis for allegations as the Washington, Oregon, and Idaho complaints. 900! That's 85% of California's public high schools at which girls have disproportionately low numbers of athletic opportunities. While this is not dispositive of the question of compliance, it is certainly likely that if girls have low numbers of athletic opportunities relative to boys, which haven't been increasing on a regular basis, there is likely unmet interest among the underrepresented sex.

Like the mass-complaints filed about California's neighboring Northwest states, the complaint about the California 900 was also rejected by OCR, which has required the complainant to make a specific allegation of unmet interest before proceeding with an investigation. Specifically, OCR suggested that the complainant include allegations that girls have requested additional teams that have been denied, or that there is widespread participation in a particular sport in private clubs or other non-scholastic contexts. OCR rejected the argument that it is the school district's burden to prove Title IX compliance, not the complainant's burden to prove that it does not.

As I suggested in the context of the Idaho complaints, this outcome may be unique to the context of the mass-complaint, designed to preserve agency resources, which surely do not allow for the agency to effectively investigate 900 high schools simultaneously, and not an effort to change the rules of the game for typical, single-district complaints. I take to heart the fact that OCR's letter to the complainant rejecting the 900 complaints included the boilerplate language, "This letter is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such."

Even still, I disagree with the way OCR is handling the allegations in the mass complaints. By rejecting them out of hand, OCR is missing a valuable opportunity to send a message to school districts that compliance with prong three is an active, not passive obligation. A school district with disproportionate opportunities should not get to sit back and relax, assuming that if girls are not rallying in the street for equal opportunities, that all is well. They should be regularly assessing the level of student interest, and responding accordingly. If they are conducting regular assessment, it should not be a burden for those districts to submit on request evidence that their athletic offerings for girls, lopsided though they may be, satisfy the interests and abilities of the underrepresented sex, such as through survey evidence or community-wide participation reports. That said, here is what I would do if I were the head of OCR enforcement in California's region. I would send identical letters to all 900 high schools to the effect of, "Hey,we've gotten a Title IX complaint alleging that your school doesn't comply with all three prongs. Please submit whatever evidence compels your conclusion that you comply with prong three (or even prong two), so that we can dismiss the complaint against you. If you don't have that information, please sign this voluntary resolution agreement detailing how you will assess student interest and respond with additional opportunities if the assessment shows unmet interest. If you don't submit either, OCR will open the complaint for investigation."

High School Athletes Win Title IX Trial

A group of female athletes in Chula Vista, California, won their class action lawsuit against Sweetwater Union School District, having convinced a federal judge at trial that the school violated Title IX by providing inferior facilities and resources to girls' athletics at Castle Park High School. The judge found that a higher percentage of male athletes than female athletes had access to superior facilities, including dedicated locker rooms and other amenities. For example, the girls' softball field was poorly maintained and lacked fences and covered dugouts, compared to the boys field which was well-maintained, fenced, and had covered dugouts. The judge also found that female athletes were more likely to have fewer coaches, less qualified coaches, and coaches who had to devote more of their time to other school duties. Compared to boys' sports, girls' sports rarely received the support of the school band, and girls sports never received the support of cheerleaders. Boys' teams were permitted to fundraise, while some girls' teams were not. Finally, the judge found that the school district's stated reasons for firing the softball coach were "not credible and pretextual" of retaliation against the softball program for a parent's complaint about gender equity issues.

The plaintiffs had earlier prevailed in the aspect of their case that addressed discrimination in the number of athletic opportunities available to girls, as we blogged about here. The parties have 45 days to propose a compliance plan.

It is common for the Department of Education's Office for Civil Rights to address disparities in athletic facilities, equipment, and other amenities in high schools as well as colleges. It is less common for plaintiffs to seek judicial enforcement against this kind of discrimination. In fact, the Title IX Blog believes that this is the first time a case about high school facilities has gone to trial in a court. Kudos to the Legal Aid Society-Employment Law Center, the California Women's Law Center, and Manatt, Phelps & Phillips, LLP, who represented the plaintiffs in this precedent-setting case.

Settlement Follows OCR Investigation of Anti-Gay Bullying and Suicide

In January, we blogged that the Department of Education's Office for Civil Rights had undertaken an unprecedented investigation by agreeing to look into charges that a school district failed to protect a middle-school student from anti-gay bullying that resulted in the student's suicide. Today OCR announced that the school district, Tehachapi Unified in California, has agreed to a settlement in response to OCR's finding that the school district was in violation of Title IX. Specifically, OCR determined that the student, Seth Walsh, was targeted for his "nonconformity with gender stereotypes, including his predominantly female friendships and stereotypically feminine mannerisms, speech and clothing." Additionally, the harassment was severe and pervasive, and that the school officials knew about it and did not adequately respond.

Under the terms of the settlement, the school district has agreed to a number of reforms, including revision of its harassment policies to address gender-based harassment, better training and education for its students, teachers, administrators, a survey assessment of the school climate regarding harassment, and responding to the climate through measures determined by consultation with an advisory committee, of administrators, students and parents.

These settlement terms are in my opinion are not so much punitive as simply "best practices" for prevention of bullying and harassment. Other school districts should not wait for a situation to escalate into a tragedy and government intervention before taking this list on themselves.

Sexual Harassment Roundup

A number of judicial decisions involving Title IX's application to sexual harassment have been issued in the last several weeks.

• The Fourth Circuit Court of Appeals, reversing a lower district court, held that a plaintiff had presented sufficient evidence to survive summary judgment, and could pursue her claim that a municipal police academy is liable for the hostile environment she experienced as a cadet. This record included numerous instances of ostracism by her fellow cadets, sexualizing comments about women generally, and criticism and humiliation that negatively affected her education and performance on a handgun proficiency test, for which she was ultimately expelled. The record also contained references to numerous complaints that the plaintiffs and other academy instructors to the academy supervisor, which never resulted in any effort to protect the plaintiff or correct the offending cadets. This was actually a Title VII case, but is likely to be cited by Title IX plaintiffs as well, especially for the point that academic failures cannot be the basis for taking adverse action against a student when those failures were influenced by a hostile classroom environment. Mosby-Grant v. City of Hagerstown, 2010 WL 5151617 (4th Cir. Dec. 20, 2010).
  

• A federal district court in California granted the University of the Pacific's motion for summary judgment, and dismissed a student-athlete's claim that the university was liable under Title IX for an assault against her by three members of the men's basketball team. According to the court, the plaintiff did not present evidence that university officials had notice that the male athletes posted a threat to the plaintiff, as none knew that one of the assailants had been involved in a prior incident of assault, and another assailant's reputation as a "womanizer" was not enough to link him to prior incidents of assault. Nor did the University respond with deliberate indifference. Officials contacted the police immediately after the plaintiff's assault, conducted an investigation and convened judicial proceedings that expelled one of the students and suspended the other two. Doe v. University of the Pacific, 2010 WL 5135360 (E.D. Cal., Dec. 8, 2010).
  

• A school district in Washington is not liable for a female students' sexual abuse and harassment of her male peer, a fellow 10th grader who suffers from autism. The federal court dismissed the plaintiff's Title IX case after determining there was no evidence that school officials knew he was being abused. Even though one teacher apparently encountered the two students in a sexually suggestive position -- the female student sitting on top of the male student victim, "pretending to rape him" through their clothes -- the court determined that this could have appeared to the teacher as behavior that, while inappropriate for school grounds, was consensual rather than harassment or abuse. Though the court was careful to avoid gender stereotypes about boys' invulnerability to sexual abuse by girls, it did point out that because of the girl's small size made it more reasonable for the teacher to interpret what he saw as consensual. J.B. ex rel. Bell v. Mead School District No. 354, 2010 WL 5173164 (E.D. Wash., Dec. 10, 2010).

• A plaintiff's Title IX claim against a Pennsylvania school district survived a motion to dismiss; the court recognized that the plaintiffs' complaint sufficiently alleged that school officials had notice that a teacher and coach was sexually abusing or harassing their daughter, a student, yet took no steps to preclude Hetrick from having further contact with K.E., nor did it notify either the police or the plaintiffs about the allegations. Having survived the motion to dismiss, the case can now proceed to discovery, where the plaintiffs can gather evidence to prove their allegations. Douglass v. Brookville Area Sch. Dist., 2010 WL 5313448 (W.D. Pa., Dec. 20, 2010).

• A graduate student in social work sued both her university as well as her internship site, a municipal senior center, for sexual harassment by one of the center's clients. When the plaintiff informed the supervisor, she was advised to treat the client's behavior, which included physically, hugging her, touching her breasts and rear end, as a learning experience and an opportunity to demonstrate her commitment to social work. The federal court in Massachusetts sustained the plaintiff's constitutional claims against her on-site supervisor, as well as the Title IX claims against Boston University. The judge sustained the plaintiff's Title IX claim because she alleged that her faculty supervisors knew she was being harassed at her placement and failed to address it with the on-site supervisor or move her to a different internship site. Rinsky v. Boston Univ., 2010 WL 5437289 (D. Mass. Dec. 23, 2010).
  

• A "prank" in which a teacher and an aide pretended to cut a sixth-grade boy's long hair, and then teased the student by calling him a female name in front of both sixth grade classes, could result in the school district's liability under Title IX. A federal court in Ohio rejected the district's motion to dismiss because the plaintiff, the student's mother, alleged that her son reported the incident to school officials, who took no corrective action and forced him to return to the offending teachers' class. Anoai v. Mildford Exempted School District, 2011 WL 53164 (S.D. Ohio, Jan. 6, 2011).
  

OCR Investigates Anti-Gay Abuse that Lead to Suicide

The Office for Civil Rights will reportedly investigate claims that the Tehachapi Unified School District in California failed to protect a student from anti-gay bullying and harassment that resulted in the student's suicide in September. This appears to be the first investigation of its kind, coming on the heels of OCR's guidance letter to schools that delineates schools' responsibilities under Title IX to address sexual orientation discrimination that overlaps with sex discrimination, like where the student is targeted for failing to conform with stereotypes about sex and gender. The student whose suicide has prompted this investigation was thirteen-year-old Seth Walsh, who hanged himself from a tree in his backyard after fellow students at Jacobsen Middle School harassed him because he was openly gay, and because if his mannerisms and appearance. The investigation will determine whether school officials responded appropriately to bullying that they knew or should have known was going on.

Title IX Is an Education Statute

In Menlo Park, California, an eight-year-old girl wants to play basketball in the city league with her friends, who are boys. But the city runs separate leagues for boys and girls, and refuses to make an exception for this "4-foot-6 tomboy." So her parents hired a lawyer, who threatened to sue the city under Title IX. The city's lawyer wrote back, arguing that Title IX does not require them to let her play in the boys league because of the law's limited application to contact sports.

I'm not sure how both lawyers missed the obvious here. Maybe the plaintiff's lawyer was bluffing, but both seem to desperately need a Title IX primer. Title IX is an education statute. It applies only to schools, not municipalities.

To the plaintiff's lawyer's credit, he also claimed that the city's segregated athletics program violated the Constitution's Equal Protection Clause. OK, now you're talking -- under that clause, government entities cannot have policies that treat people differently because of their sex unless they have a good reason. In many cases, courts have ruled that excluding girls from boys' athletic programs (including contact sports like football) violates the Equal Protection Clause because stereotypes about girls' ability, fragility and interest are not good reasons to exclude them. However, those reasons may be less at play in cases like this one, where the city isn't excluding girls all together, but is running sex-segregated programs. Nonetheless, if the city finds itself in litigation, it had better be ready to articulate a good reason to keep kids who are friends, and have comparable size and talent from playing with each other just because they are of different sexes.

School District May Be Liable for Football Camp Harassment

A federal district court in California recently denied efforts of the Gustine (California) Unified School District to obtain summary judgment on Title IX claims stemming from peer harassment at a high school football camp. The plaintiff was a rising freshman at Gustine High School when he attended a three-day football camp coordinated by Gustine and another school. He alleges that while at camp, he was repeatedly subjected to physical and verbal abuse by upperclassmen. On the second day of camp, the upperclassmen held him down in the locker room, inserted a battery-operated air pump nozzle in his rectum, and then activated the pump for several seconds. Also, the harassers repeatedly called him homosexual epithets, grabbed him while he was in the shower, flashed and slapped him with their genitals, and pummelled him with pillow cases stuffed with equipment at a camp-sanctioned "pillow fight."

For the school district to be liable under Title IX, the plaintiff must establish that the harassment was severe and pervasive, motivated by his sex and gender, known to the school district, and met with the district's deliberate indifference. The court denied summary judgment to the school district because it determined that a jury could find these elements present in plaintiff's case. First, the fact that the plaintiff was sexually assaulted and -- although he endured camp -- later withdrew from school would support a jury's conclusion that the harassment was severe and pervasive. Second, though the school district argued that the harassment was motivated by the plaintiff's status as a freshman, the court determined that a jury could find that it was instead gender-motivated based on the homosexual epithets that accompanied the abuse. Third, even though the plaintiff did not report harassment during camp, the court reasoned that a jury could find that the camp's head coach had notice of the danger the upperclassmen posed because he had caught the same boys attempting to air pump assault on another victim, causing the coach to confiscate the air pump but take no further action against the perpetrators. Last, the court found that the district's response might constitute deliberate indifference in the eyes of the jury. After camp, an assistant coach discovered the assault on the plaintiff and reported it to the principal, who suspended the perpetrators from school. Notwithstanding this severe response, if the jury agrees that the head coach had notice during camp that the plaintiff was in danger, his failure to take action against the perpetrator at that time may satisfy the deliberate indifference standard.

This case sheds important light on the hazing that goes on in many athletic programs. In addition to laws in many states thatprotect students against hazing and bullying, Title IX applies when such misconduct is also sexual in nature. School districts wishing to protect their students from harassment and avoid liablity must train their coaches and teachers to recognize and respond to incidencts as sexual harassment and not dismiss it as horseplay or condone it as team hazing.

Decision: Roe v. Gustine Unified Sch. Dist., 2009 WL 5184688 (E.D. Cal. Dec. 22, 2009).

California HS Improves Softball Field After Title IX Complaint

A reader sent me this good news out of California: the Torrance Unified School District has improved the softball fields at West High School after a Title IX complaint filed last fall cited the district with 20 possible violations. The district settled to avoid litigation, and to its credit, moved quickly to install new fields, electronic scoreboards, and spectator bleachers in time for the beginning of the 2010 season -- a total cost of $40,000. But the district gets no credit for needing to be prompted by legal action to prompted into action in the first place. It's neither fair, moral, or safe to require the J.V. softball team to play on a dangerous, dirtless infield and in an outfield that doubles as a practice field for boys in other sports, or to give boys teams favored treatment in terms of fundraising opportunities, field maintenance, and scheduling, as the complaint had also alleged. Moreover, the fact that the settlement also required the district to pay the plaintiffs' lawyers at the California Women's Law Center helps underscore the point that discrimination doesn't pay.

ACLU, School District Settle Harassment and Discrimination Case

The Newport-Mesa School District in Orange County, California, has agreed to implement harassment and discrimination training for its students and staff, in settlement of a lawsuit filed by the ACLU. As we noted last March, the ACLU sued the school district on behalf of a former student of Corona del Mar High School, who alleged that school officials did not respond adequately when three football players harassed her and threatened her with rape. These threats apparently related to the student's role in the drama club's intended production of Rent, which the principal canceled (but later reinstated) due to the concerns about the show's gay and AIDS-related content.

Under the settlement terms, students and teachers will receive four hours of training, conducted by the Anti-Defamation League, about what constitutes harassment and how it harms people. District officials will receive 8 hours of training. A district spokesperson believes that the training "will raise awareness for staff and students and will contribute to an overall positive environment at Corona del Mar High School." The student plaintiff, Hail Ketchum, also praised the outcome, saying "no one else will have to go through what I went through."

School District Settles Lesbian Harassment Case

The Vallejo City Unified School District in California will pay a former student, Rochelle Hamilton, $25,000 in a settlement to keep her from filing a lawsuit over anti-gay harassment she alleges to have experienced at the hands of faculty and staff during her sophomore year at Jesse Bethel High School. Hamilton says that teachers forced her to attend a counseling session for gay students where the counselor pressured her to disavow her lesbian sexual orientation. She also says that teachers verbally harassed her, calling her "ungodly" and telling her that she is "going to hell" and that she "can get HIV/AIDS from being gay and messing with female." She was also barred from the girls' locker room because she was not wearing stereotypically feminine attire.

The school district engaged an external investigation into Hamilton's claims; and while the investigation report is confidential, it reportedly concluded that some of the claims had merit and some did not. Apparently, however, the findings were sufficiently negative to motivate the school district to preempt the lawsuit with a settlement. In addition to the $25,000 it will pay Hamilton, the district has also agreed to revamp its harassment policies.

Court Holds CA School District's Athletic Opportunities Violate Title IX

A federal district court in California has ruled in favor of plaintiffs challenging the distribution of athletic opportunities at Castle Park High School in Chula Vista. The court reasoned that the current 6.7 percentage point disparity between the percentage of athletic opportunities afforded to girls (38.7%) and the percentage of girls in the student body (45.4%) does not qualify as substantial proportionality "because the 6.7% difference reflects 47 girls who would have played sports if athletic participation was proportional to female enrollment." The school district also failed to satisfy either of the alternative compliance prongs because the district did not have a history and continuing practice of expanding athletic opportunity for girls, and could not dispute plaintiffs' argument that interest in girls' field hockey, tennis, and water polo remained unmet. With respect to the latter prong, the court dismissed the school district's argument that it was unable find someone willing to coach a field hockey team, since that has no bearing on the question of unmet interest.

The court is currently scheduling further proceedings to address the question of a remedy, as well as the plaintiffs' other claims, not yet addressed by the court, that the school does not provide facilities and other resources of equal quality to girls' and boys' teams and that the district retaliated against the plaintiffs (by firing the softball coach and barring parents from running a concession stand during softball games and serving as assistant coaches) for complaining about Title IX violations.

Decision: Ollier v. Sweetwater Union High School District, 2009 WL 886223 (S.D. Cal. 2009).

ACLU Sues California HS for Enabling Homophobic Climate

The ACLU has sued the Newport-Mesa Unified School District in California for failing to address bullying and harassment targeting gay students at Corona Del Mar High School. Its primary example (alleged) involves three football players' threats of rape and murder, imbued with gay slurs, which were directed at a female classmate in January. Their actions were recorded and posted on Facebook, yet school officials did little to discipline the boys or protect the girl involved and essentially, according to the ACLU, were dismissive of the matter. Other examples of a homophobic climate at Corona Del Mar, which has worsened in the wake of the Prop 8 campaign, is the school's decision to cancel a student production of gay-themed musical Rent. The principal later reversed the decision, likely due to student outcry and national media attention it received, however, the ACLU's complaint alleges that the students involved were retaliated against for going to the press.

In addition to a Title IX deliberate indifference to harassment claim, the complaint also invokes the federal and state constitution's equal protection clauses and California's education statute, which enumerates sexual orientation as a category protected from discrimination. Plaintiffs are seeking unspecified monetary damages and other remedies including a complaint filing process at school, diversity training for students and staff, designated staff contacts for harassed students, and a survey of attitudes toward sexual orientation.

High School Coach Litigation Roundup

Several basketball coaches challenging discrimination in high school athletics have made news recently.

Lamar Bryant, fired from his position as head coach of the Marshall High School boys basketball team in Chicago recently settled his wrongful termination/retaliation suit against the Chicago Public Schools. As we noted last fall, Bryant's federal lawsuit alleged that his female athletic director discriminated against him and the boys' basketball team. Bryant will receive $500,000.

In Franklin County, Indiana, girls basketball coach Amber Parker is gearing up to sue the Indiana Interscholastic Athletic Association over the Friday night schedule issue we blogged about recently. She is looking for a lawyer to help her bring the case.

And Linda Wachter, formerly the girls' basketball coach at Exeter Union High School in California, is continuing to press her claim that the school district fired her in retaliation for her complaints that the athletic department was discriminating against her team by, among other things, denying them access to priority practice times and access to facilities. (We blogged about this case when it was filed in September.) The court recently dismissed her other sex discrimination claims, but determined that the facts she alleged, if proven, would constitute retaliation. The court is now in the processing of scheduling a trial or alternative resolution.

Private Donors Give to Softball Field Project

Too often in our posts about booster clubs we bemoan that parents and community members create or contribute to discrimination in scholastic sports by supporting boys' teams more than girls'. So, it's nice to see that the Panther Foundation, a group of parents supporting athletics at Benicia High School, has pledged $50,000 to the school district to support the construction of two softball fields on the high school campus.

The gift is well timed. Earlier this week, OCR identified Benicia High's lack of a softball field as contributing to Title IX violations it discovered after investigating anonymous complaint.

California School District Violates Title IX, OCR Concludes

No surprise here, but OCR has concluded that the Benicia (California) Unified School District is in violation of Title IX in light of its failure to provide athletic opportunities to girls that are equitable in quantity and quantity.

As we have noted in prior posts, OCR's investigation commenced after an anonymous complainant alleged that female athletes at the high school were being treated unfairly. While the specifics of the complaint and the scope of investigation were not made public, the local paper's own reporting shed some light on the issues that were likely under consideration. One problem is that Benicia High School allocates over 60% of its athletic opportunities to boys, a distortion that stems in large part to its three football teams. It also spends more than 12 times as much on boys' athletics than girls,' which has created inferior opportunities for girls, especially in softball. The softball team must play at the city park when it is not being used by the local adult league, in contrast to boys baseball team, which has its own, recently-renovated facility on the high school campus.

Though news of OCR's conclusions did not mention a specific remedial plan, the district has agreed to "conduct yearly surveys to determine the athletic interests of females, and work with coaches and parents to ensure softball athletes have acceptable access to the Community Park fields." Since neither of these promises is certain to remedy the violations OCR has found, I predict that the agency will be keeping an eye on Benicia High.

California Court Says Title IX Standards Apply to State Law Claims for Peer Harassment (but the Plaintiffs Win Anyway)

Section 220 of California's Education Code provides that students shall not be discriminated against on the basis of a number of protected categories, including disability, gender, nationality, race or ethnicity, religion, and sexual orientation. However, it is not clear on the face of this broadly worded statute when a school district violates this provision by failing to protect a student from harassment by his or her peers. That issue was the subject of a recent decision by the California Appeals Court, in a case stemming from the harassment two students were subjected to by their peers at Poway High School on the basis of their sexual orientation.

The plaintiffs argued that they should be able to recover money damages under Section 220 on a theory of respondeat superior, that is, that the school district is vicariously liable for the misconduct of its employees. In this case, that misconduct is various teachers' failures to address numerous reports by the plaintiffs that they were subjected to, among other things, "death threats; being spit on; physical violence and threats of physical violence; vandalism to personal property; and being subject to anti-gay epithets." However, the court disagreed that the respondeat superior standard should apply to claims under Section 220. It cited evidence that the California Legislature intended instead to incorporate the standards of liability for peer harassment that apply to Title IX cases, namely, that the district had actual knowledge of severe and pervasive harassment, and in the face of that knowledge, acted with deliberate indifference. This is a tougher standard for plaintiffs to satisfy.

Therefore, the court concluded, the trial court technically erred when it instructed the jury to decide the case using the respondeat superior standard. But it deemed that error harmless, because the jury also made specific findings to support a conclusion that the district was liable even under the tougher Title IX standard -- namely, that appropriate school officials had actual knowledge of the harassment that was going on and failed to respond. The jury also characterized the harassment as "severe and pervasive." Moreover, deemed the court, these findings were supported by substantial evidence presented at the trial.

The court thus sustained the jury award of $175,000 and $125,000 to the two plaintiffs, as well as attorneys fees of over $400,000.

Decision is: Donovan v. Poway Unified School Dist.,2008 WL 4531580 (Cal. App. 4 Dist. October 10, 2008).

Two Sexual Harassment Cases Survive Summary Judgment

Federal district court judges have denied defendants' motions for summary judgment in two separate sexual harassment cases this past week, paving the way for factfinding by a jury in both cases.

In Padula v. Morris, a district court in California held that the allegations by a female high school student that her male high school principal hugged her, "rubbed her shoulders and asked her what was the matter in the school hallway, and, during a disciplinary meeting, told her, 'I don't know whether to hug you or spank you' and then hugged her and swatted her on the buttocks as she walked out the door" were legally sufficient to constitute severe and pervasive harassment under Title IX. The court rejected the defendants' attempts to analogize to workplace discrimination cases and peer harassment cases in which acts of similar severity did not constitute sexual harassment, stating "what may not be offensive enough to be actionable between adults [or between children] could be actionable between an adult and a child."

In Hurd v. Delaware State University, the district court in Delaware held that the plaintiff, a female college student, could proceed against both her professor, Dr. Panda, and Delaware State University. The plaintiff had alleged "at least seven detailed instances, involving sexually explicit statements and advances" and that "because of Dr. Panda's harassment, she missed approximately six to ten classes." Concluded the court, "a reasonable jury could find that the environment was sexually hostile." Moreover, a jury could find that Delaware State responded with indifference to knowledge of the harassment, even though "Hurd did not file a formal complaint and chose, instead, to send an e-mail to Dr. Panda." Action by the plaintiff does not necessarily absolve the university of a responsibility to address the harassment, so "DSU's inaction was reasonable is a question for the jury."

Also notable in light of the Supreme Court's pending resolution of Fitzgerald v. Barnstable School Committee, the court denied plaintiffs' claims under section 1983 that Dr. Panda and Delaware State had violated her constitutional rights, calling those claims "subsumed by Title IX."

Decisions are:
Padula v. Morris, 2008 WL 4370075 (E.D. Cal. Sept. 24, 2008).
Hurd v. Delaware State Univeristy, 2008 WL 4369982 (D. Del. Sept. 25, 2008).

Settlement Will Force School District to Deal With Anti-Gay Bullies

The ACLU of Northern California announced today that it has reached a settlement with the Upper Lake Union School District, under which the district has agreed to undertake a list of protective measures designed to curb anti-gay harassment and discrimination.

ACLU's client is a middle school student named Robby who "can't remember a day at school when [he] wasn't called a faggot or gay." When Robby was beat up after gym class by classmates shouting "queer," Robby's parents got the ACLU involved. It does not appear that ACLU had to actually file a lawsuit to get the school district to agree to take remedial measures. This step was presumably not necessary because thanks to Title IX and California's anti-bully legislation, the district has a legal responsibility (not to mention a moral one) to take reasonable steps to protect students from anti-gay harassment.

Here is the list of things that the district agreed to do:

• Revise the parent/student handbooks to include the antidiscrimination and antiharassment policies and the process for filing a complaint;
• Designate an employee for each school to serve as the point person for school-based harassment;
• Provide LGBT sensitivity materials to staff and discuss incidents of harassment at staff meetings;
• Hire qualified trainers to educate students regarding the harmful effects of discrimination;
• Implement the Gay Lesbian and Straight Education Network's "No Name Calling Week" curriculum and other programs that raise awareness about discrimination and homophobia; and
• Support the maintenance of a Gay/Straight Alliance club at the middle school.

If you're an activist, feel free to copy and paste these handy bullet points into your own list of demands!

OCR Investigation Clears Scotts Valley

In December we noted that the Office for Civil Rights was investigating alleged Title IX violations at Scotts Valley Unified School District in California. An anonymous person had complained that the high school was violating Title IX by providing female athletes, including softball players, with inferior equipment, facilities, scheduling and coaching.

Yesterday, OCR released an investigation report in which it concluded that Scotts Valley was not in violation of Title IX. According to the Mercury News, the report acknowledged "individual instances of disparities favoring males or females within the athletic program" but determined that on the whole, they "do not show a pattern of disparities or 'second class status' for either gender." For instance, "while some teams had more or better equipment and supplies, and some sports used more athlete-owned equipment, these differences were not based on the sex of the athletes. While more boys teams had full sets of uniforms than girls teams, more girls teams had warm-ups and bags than boys teams."

Regarding a separate claim that Scotts Valley should have added a freshman girls soccer team, OCR concluded that, since there was no "reasonable expectation of competition within the normal competitive region," the school did not run afoul of prong three, which measures compliance by the absence of unmet interest on the part of the underrepresented sex. It also apparently noted that the high school has a history of (in the reporter's words) "supporting expansion of athletic opportunities for girls' teams by approving new sports when there were enough students to support a [competitive] team." I'm not sure if this means that OCR found the high school to alternatively comply with prong two, which measures compliance by a history and continuing practice of expanding opportunities for the underrepresented sex. If so, this seems like a pretty watered down version of prong two, which I always understood to require schools to take a more active role in developing new opportunities that just waiting to be asked by an already-existing team.

Alhambra High School Softball Team Celebrates New Field

Four years ago, softball players at Alhambra (California) High School sued the Alhambra School District, challenging the disparity between their crappy softball field and the boys' new $900,000 baseball complex as a violation Title IX. After two years of litigation, the District settled, agreeing to construct a two new softball fields with "the same amenities and maintenance as the baseball fields" available to the boys.

On Tuesday, the softball team finally played their first game on the new field. The original plaintiffs, their lawyers, and school officials were all in attendance for a special ceremony to open the new field. KABC in Los Angeles covered the story on the evening news.

According to their lawyers at the California Women's Law Center and the Legal Aid Society-Employment Law Center, Cruz v. Alhambra School District was the first high school Title IX case in California.