School District with Sexual Orientation "Neutrality" Policy Targeted by Lawsuit and Investigation

The Anoka-Hennepin School District is the only district in Minnesota with a curriculum policy that requires teachers and staff to remain "neutral" on sexual orientation issues, deferring instead to students' "family homes, churches, and community organizations" to disseminate attitudes and information about homosexuality.

Two major civil rights organization, the National Center for Lesbian Rights and the Southern Poverty Law Center, have sued the district on behalf of LGBT student plaintiffs who experienced harassment and discrimination at Anoka-Hennepin schools. They argue that the neutrality policy amounts to gag-order that contributes to a hostile environment for LGBT students by rendering teachers ineffective at dealing with LGBT harassment when it occurs and at laying a foundation of inclusion and appreciation for diverse sexual orientations that could prevent harassment of LGBT students in the first place. They argue that the policy singles out LGBT students for exclusion in violation of the federal Constitution's Equal Protection Clause, Title IX, and the Minnesota Human Rights Statute.

Meanwhile, the Justice Department and the Department of Education's Office for Civil Rights are investigating allegations that Anoka-Hennepin School District is responsible for bullying and harassment motivated by students' failure to conform to gender stereotypes in violation of Title IX. Four students have committed suicide in recent years in apparent reaction to such harassment, though reports suggest it is not clear whether suicides or the district's sexual orientation "neutrality" policy are part of the investigation.

How Anoka-Hennpin's policy fares in court and in this government investigation could affect other states with restrictions on teaching about homosexuality. Reportedly, these states include Alabama, Arizona, Louisiana, Mississippi, Oklahoma, South Carolina, Texas and Utah, while Tennessee considered such legislation earlier this year.

First transgender prom queen

This is not directly a Title IX issue, but it's good news during prom season when we seem to only hear stories about how students who are gender non-conforming have their proms marred by administrators, parents, and other students who are apparently very concerned with who gets to wear tuxes and who gets to wear dresses.
This week the first transgender student (MTF) in an American public school was crowned Prom Queen. Andii Viveros was voted Prom Queen at McFatter High School in Florida after beating out 14 other young women for the title. There was a movement to remove Viveros from the ballot, but Viveros, president of the school's GSA, wrote a speech to explain her* position.



* The article refers to Viveros with male pronouns, I chose to use female pronouns because the article mentioned that Viveros has been living as a woman for two years.

It's prom season! Bring on the gender conformity

Prom season causes a certain amount of consternation for administrators worried about, largely, the alcohol consumption and sexual behaviors of prom goers. In recent years we have seen some school officials, though, battle another alleged social ill: girls who want to wear tuxes (and some boys who want to wear gowns). A little over a year ago Erin wrote a post with a very similar title as my own here. And this year is no exception. In Houma, Louisiana senior Monique Verdin is planning on wearing a tux to her prom. Last year she wore a men's suit to a dance--without incident. But school officials have caught wind of her plan--which isn't really a plan; she just wants to wear what she's comfortable in--and said she will not be allowed in if she wears a tuxedo. According to school policy, prom attire must be formal wear which specifically notes gowns for girls and tuxedos for boys (we should also note how this policy is not just gendered but has class implications as well). But other similar cases (and note Verdin has not filed a lawsuit; she seems to be just hoping for the best) have privileged legally protected civil rights over "tradition" (the response from a parish official). The prom is this weekend. And right now it seems school officials are adamant.* In good news, Verdin's family and friends are sticking by her. Her father has contacted a lawyer. And her friends have said they will not go into the prom until they are assured that Verdin can get in too. * Interestingly this story was published this morning and despite my repeated refreshings it seems not to have been updated. But the title of the story that appears on my internet banner in is conflict with the article title and reads: High school relents on prom tux for girl. Not sure if this is wishful thinking or if there is some internet glitch. I certainly hope it's true and that the school does not have something sneaky planned like an alternate prom.

More Title IX Scholarship

Here is a roundup of articles and chapters about Title IX that have been published recently:

Attorney Kristen Galles -- known for her victories against Quinnipiac and the Michigan HS Athletic Association-- published Title IX and the Importance of Reinvigorated OCR in the journal Human Rights. In this brief essay, she explains the role that OCR plays not only in enforcement, but in educating schools and universities about their obligations under Title IX. She argues that OCR has the potential make an even greater difference combating sex discrimination in school, and is hopefully optimistic that the newly-recommitted agency can one day work her, a Title IX litigator, out of a job. Citation: Kristen Galles, Title IX and the Importance of Reinvigorated OCR, Human Rights, at 37 (Summer 2010).

Michelle Gaugh published an article about Title IX's application to discrimination against parenting and pregnant students in the Michigan Journal of Gender and Law. In it, she points out that such discrimination persists despite a clear regulatory prohibition against treating pregnant students any differently from others who may have a temporary medical condition that requires accommodation. She also explains that there have been relatively few efforts to address this discrimination in court, primarily because victims lack awareness of their rights and socially and legally marginalized. She argues that increasing awareness about Title IX's application to pregnant and parenting students, including educating teachers and other advocates, as well as increased enforcement and oversight from OCR, can help curb this variety of sex discrimination. Citation: Michelle Gaugh, Parenting and Pregnant Students: An Evaluation of the Implementation of the "Other" Title IX, 17 Michigan J. Gender L. 211 (2010).

Professor Deborah Brake has posted to SSRN a chapter called Sport and Masculinity: The Promise and Limits of Title IX, which will appear in the book Masculinities and Law: A Multidimensional Approach (Frank Rudy Cooper and Ann C. McGinley eds. 2011). Brake points out that, "[w]hile Title IX has greatly expanded the range of culturally valued femininities for women, and broadened the social category of "woman" in the process, it has not broadened the masculinities that sport constructs for male athletes, nor has it made significant inroads into the hyper-masculine ethos that pervades the most-valued men’s sports." Title IX reinforces the hegemonic masculinity replicated through in several ways, "including Title IX’s default rules approving of sex-segregated teams and its limited integration rights, and an equal treatment standard that accepts as a baseline the hierarchies within men’s sports that privilege the most masculine sports, football and basketball." Then she addresses how Title IX might nevertheless be used to "intervene in the production of masculinity," in light of a trend of "recent cases in which Title IX has held educational institutions accountable for the harms caused by extreme performances of hyper-masculinity, including sexual assaults by male athletes of women and of other male athletes."

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).