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.

5th Circuit Issues Decision in Single-Sex Education Case

The Fifth Circuit Court of Appeals issued a decision today in the case challenging the Vermilion (Louisiana) School Board's decision to institute single-sex classes at Rene A. Rost Middle School. The parent of female students who had been placed in all-girls classes in core subjects sued the school district, challenging the constitutionality of the single-sex classes under the Equal Protection Clause. The plaintiff also challenged the classes' validity under Title IX, which generally prohibits schools excluding students from any class or activity based on sex, but provides a narrow exception for single-sex classes that promote an identified educational objective, are based on genuine justifications, not generalizations and stereotypes, and which provide students the option to select co-ed alternative instead.

The district court had earlier denied the plaintiff's request for a preliminary injunction and allowed the single- sex classes at Rost to continue. Though the district court acknowledged that Vermilion's single-sex classes were justified by experimental data that had been falsified by the principal (an issue that was the subject of this prior post), the court reasoned that because Vermilion's discrimination was not intentional, it did not violate the Equal Protection Clause. It did not consider the plaintiff's alternative argument under Title IX.

Today's decision affirms the lower court's denial of the injunction, reasoning that it is too late in the school year to order an immediate change. Significantly, however, the appellate court corrects the lower court's misapplication of the Equal Protection standard. Rather than intentional discrimination, the appropriate standard is intermediate scrutiny -- when state actors classify based on sex, they must have an "exceedingly persuasive justification" for the classification. Because it's hard to imagine a court concluding that the principal's falsified justification was a "persuasive" one, I think this aspect of the decision makes it much more likely that the plaintiff will prevail on the merits when the question of the constitutionality of Vermilion's single-sex classes returns to the district court. Moreover, the appellate court faulted the lower court for failing to consider plaintiff's argument that the single-sex classes violate Title IX, so this too will provide alternate grounds for the plaintiff to prevail.

The appellate court today acknowledged that if Vermilion Parish curtails its single-sex classes, the litigation will be moot. If it continues, however, the case will proceed and the district court will analyze the constitutionality and statutory validity of its program under the correct standards of Equal Protection and Title IX.

Report ready for digestion in PA

Title IX consultant Peg Pennepacker finished her report on the gender disparities within Hazleton School District in Pennsylvania. We wrote about this situation just over a year ago. Interestingly, the reporting of the complaint about the lack (i.e. none) of middle school girls' sports in the winter seemed to be more focused on whether girls' basketball should be moved out of the spring season to its traditional winter season.
But the raising of the concern clearly triggered an investigation and brought Pennepacker into the situation. Her report goes a lot further than just winter sports, too. (Sometimes educational administrators are not very smart.) A large concern highlighted in the report seems to be the use of booster donations. Or at least that is what people are talking about. And it seems the ad-hoc committee, created in order to "digest" the report, is getting on the booster club issue immediately, suggesting that there be a district-wide booster club policy and that financial audits of booster clubs be conducted.
And I can see why a special digestion committee is necessary. Here are the rest of the items that "warrant action" in order to achieve Title IX compliance.

Increase number of participation opportunities.

- Improve equality in supply and condition of athletic equipment and supplies.

- Improve scheduling use of athletic facilities including locker rooms, practice and competition facilities.

- Re-evaluate team transportation and meal allocations.

- Recruit best-qualified coaches and offer coach training.

- Make publicity and promotional activities available to all groups.

- Improve game and practice scheduling.

- Re-evaluate access to training facilities and medical services