Bullying, sexual assault and intent

The reporting of the trial against the Wayne County (Tennessee) School District by two families whose sons had been sexually assaulted by fellow team members on the middle school basketball team has raised some interesting questions about what constitutes bullying versus sexual assault.

An article I linked to the other day when I posted about the outcome of the trial is entitled "Horseplay or sexual assault" and is indicative of the belief that the two are somehow inherently separate. Of course, the term horseplay is quite deficient in describing the events that occurred in the basketball team's locker room at Waynesboro Middle School. Bullying is somewhat more appropriate. But the debate over whether what happened was bullying or sexual assault sets up a problematic hierarchy.

Both bullying and sexual assault (and sexual harassment) in schools are potential Title IX violations. Thus this discussion is not about the ability to file a complaint or lawsuit. Rather I wanted to explore the meanings behind these categories; the meanings as I see them and as they have been constructed by the people (including the media) in this case.

Obviously turning out the lights in the locker room and engaging in physical attacks of a sexual nature, or holding someone down and threatening to sodomize him with a marker extends far beyond horseplay.

The boys will be boys mantra has never really held much weight for me, and this case certainly has not altered my thoughts on that excuse. The charges against the perpetrators in this case were dropped by a juvenile court judge even though they all pleaded no contest. Various investigations found no "punishable offenses." Curious, but moving on...

At the federal trial last week the plaintiffs asked why some of the incidents in which sex acts were simulated were not dealt with. These all happened prior to what has been referred to as the marker incident. The answer from the former school principal was that there was a verbal reprimand, but that he didn't think these simulated sex acts were sexual assault.
So were they?
Were they just bullying?
Was it sexual bullying?
The article quoted Vanderbilt University professor Maury Nation, who is a bullying expert. Nation validated the severity of the marker incident but categorized it as chronic or serious bullying and not sexual assault because "this isn’t sexual behavior, per se, as much as power and dominance behavior. That is, the goal is to intimidate. I don’t think any of the kids were doing this for sexual gratification as much as the humiliation and embarrassment it was having to the victim.”
First, we have no idea about the level of sexual arousal.
But more importantly, sexual assault is itself about power and dominance and intimidation. Not all bullying is sexual in nature, but all sexual assault has a bullying component if we define bullying as behavior meant to exert power and control over another.
If the bullying involves simulated or actual sex acts as the means for exerting that control, then why isn't it sexual assault? And I am not speaking about the legal definitions, here; I am talking about the cultural constructions of these terms and behaviors.
Why did these boys choose to exert dominance via sex acts?
The inability to answer this question means we cannot ignore the sexual nature of these acts. The way they intimidated was sexual in nature, regardless of whether they received sexual pleasure from it. Nation's views--as presented in the article--seem to assume that all sex acts produce pleasure and that there is no sexual pleasure derived from exerting power and control over others. These, in my mind, are false assumptions.
Again, I don't want to suggest that bullying is not as bad as sexual assault. I do want to suggest that not calling the acts that occurred in Waynesboro Middle School sexual assault downplays the severity of the incidents and attempts to curtail discussions of behavior among boys and within sport culture. And it fails to acknowledge the motivations behind sexual assault.

I plan on one more post about this in which I talk about sport culture and sexual assault more generally.

Victims in TN sexual assault case receive $100,000

Last week a jury, after deliberating only an hour, awarded two families $100,000 each in damages in a case of sexual assault. Parents of two middle school students in Wayne County, Tennessee sued the school district for failing to protect their sons from the sexual assault by teammates on the school's basketball team.
There seemed to be a culture of sexual pranks in the team's locker room and the plaintiffs alleged that the school did not respond in an appropriate way to the incidents, which began in October of 2008. The school looked into the allegations but apparently the investigation was stymied or in some way inconclusive because investigators could not certify that a felt pen had actually penetrated one of the victims. I know there are a lot of legal distinctions among crimes based on things like whether penetration has occurred. But intent is obviously a large factor as well. If a boy is being held down by other boys who intend to penetrate him with a foreign object...well that would seem to indicate a fairly egregious act of sexual assault. (More on this in a forthcoming post about bullying and sexual assault and the attempt to differentiate and hierarchize the two.)
School officials did temporarily suspend four identified perpetrators and kicked them off the basketball team. But the four came back to school after 11 days and were allowed to rejoin the team at a later point. Also, the victims were harassed by peers for getting these boys in trouble. Both victims were removed from the school by their parents. Some of the perpetrators argued at the trial that things had been blown out of proportion.
Also of note: apparently the locker room culture was stimulated by the coach who mentioned pranks himself though he allegedly told the boys not to engage in them.
“I shared stories with boys. In hindsight, obviously, I wish I hadn’t done that.”
Probably even more so now that damages have been awarded.
I have not read anything on how the jury decided on the damages figure. The plaintiffs were seeking a combined $3 million in damages initially.
No word on whether the school district will appeal.

Commentary on Yale and "Dear Colleague"

There has been a significant amount of press about both the complaint filed by Yale students alleging the university has not done enough to remedy sexual harassment and the Obama administration's "Dear Colleague" letter about dealing with harassment. Often articles and commentary discuss the two together. What has been interesting is some of the backlash. Wendy Kaminer had a piece in the Atlantic last week expressing her libertarian feminist opinion on the complaint and Dear Colleague letter, which again we should note is not a change in the policy--just a reminder. Kaminer, the lonely libertarian feminist, says that the complaint (and I would assume by extension the whole complaint process) is more feminine than feminist because it relies on "the assumption that women are incapable of fending for themselves in the marketplace of epithets or ideas, the belief that women are rendered helpless by misogynist speech and the sexist tantrums of their male peers." Really? We haven't learned by now, especially with preponderance of bullying among young children, that the whole "sticks and stones" argument just doesn't hold water anymore (if it ever did). That words are actions too, that they create an atmosphere, that they construct and reveal power relations. There is no such thing as "pure speech"--words are not just words. I think Kaminer is wrong; this is not "feminine timidity" and women (and some men) hiding behind government rules by using the complaint process. This is feminism. It's actually classic liberal feminism: using the tools already in existence in the current system to change the conditions to make them more equitable for women so they can do things like have equal access to education. I don't see taking action as in any way behaving timidly. Amy Alkon at Mensnewsdaily basically reprints a large section of Kaminer's editorial but with the headline: Feminists Looking to Big Government to Act all Big Daddy. Yeah, words have no power. Also of note is what and who is not being talked about. In her column, Wendy Murphy, lawyer, legal analyst, and adjunct law professor notes that she herself has filed complaints with OCR over the policies on sexual harassment at several campuses--most notably Harvard Law School. The school is "under investigation for a policy of delaying sexual assault hearings on campus until law enforcement officials complete their investigation. This tactic – known as “running out the clock” – is used by many schools as a way of avoiding oversight by OCR because when a school puts off resolving a case until the students involved are on the verge of graduation, violations of Title IX cannot be remedied in any meaningful way." Murphy surmises that Harvard will change its policy before OCR finishes its investigation and that the institution will be praised for doing so. The difference in the publicity is likely because of the filers. Anyone can file an OCR complaint, and it is probably of greater interest to the media and the rest of us that it was 16 current and former Yale students who are sharing their stories. Plus the story allows media outlets to pull up the rather infamous incidents at Yale from the past few years.

Lawsuit over football attacks in New Mexico

Parents of an alleged victim of sexual assault in Albuquerque, New Mexico have filed a lawsuit against the Los Lunas school board, the superintendent, the high school principal, and five football coaches. News came out last fall (we missed it--sorry) that incidents of hazing had occurred within the Valencia High School football team. There are three alleged victims. It is the parent of one of these three who has filed the lawsuit. There was a criminal investigation of the incidents, but it does not appear that any formal action has been taken since the findings of that investigation were turned over to the District Attorney's office. Someone from the DA's office said decisions about charges would be made at the end of this month. The lawsuit alleges that the victim experienced physical and sexual abuse at the hands of three senior members of the team while other members of the team looked on and cheered. It is being referred to as a hazing incident--again one of several that occurred last fall within the team. The lawsuit alleges both Title IX and due process violations. The coaches were allegedly in another part of the locker room while the incident was taking place and two of the five named coaches are the parents of two of alleged perpetrators. So it will be interesting to see if there is enough evidence to prove that school authorities had awareness of the harassment and failed to remedy it.

OCR "Dear Colleague" Letter Addresses Sexual Harassment in Schools

The Department of Education's Office for Civil Rights today released a new guidance document geared to help schools, colleges, and universities understand and implement their responsibilities under Title IX to prevent and correct sexual harassment. The "Dear Colleague" Letter put particular focus to sexual violence like rape and sexual assault, which are forms of sexual harassment and thus actionable under Title IX. With regards to all manners of sexual harassment, an institution's responsibility under Title IX is to take immediate action to address harassment that it knows or should know about. It should have a policy that defines sexual harassment and outlines the grievance procedure that a student can use to file a complaint. It must ensure that the policy is widely disseminated and understood, and that appropriate staff are trained in recognizing and addressing sexual harassment.

It is evident from the guidance that OCR is trying to keep other schools from making mistakes that others have made in recent years. For example, the guidance clarifies that when sexual violence is first reported to the athletic department, such as in cases involving student-athletes, the athletic department must make sure that the student has access to the same grievance procedure that is available to all students. It cannot seek to handle the matter within the athletic department in an attempt to limit the athlete's or the athletic department's exposure to sanctions or negative publicity. In recent years, we've written about several universities that have done exactly that, including the University of Washington and the University of Iowa.

The guidance also makes clear that a school's response to charges of sexual violence cannot be conditioned on the results of the results of a criminal investigation. Schools cannot delay their own investigations pending findings by police, or condition university sanctions or other responses on a prosecutor's decision to criminally convict. We've posted about this problem as well, such as in a recent case against Dominican College. Relatedly, schools should not confuse their own response with a criminal response. They must employ the civil "preponderance of evidence" standard when making findings about whether sexual harassment did or did not occur. The stricter "clear and convincing" standard, while appropriate for law enforcement and the imposition of criminal sanctions, should not apply in university judicial proceedings where criminal sanctions are not at stake.

The guidance reminds schools that pending outcome of criminal or university investigation, they should take immediate steps to protect the complaining student, such as changing students' living arrangements and schedules, while minimize the burden on the complaining student, and providing the complaining student with access to counseling and support. For examples of a university's inappropriate response to charges of sexual violence, see recent posts about Arizona State (here and here).

The guidance also addresses what OCR recognizes as "confusion" that my derive from seemingly conflicting mandates of Title IX and the Federal Educational Records Privacy Act, or FERPA, which prohibits unauthorized disclosures of student's records. OCR clarifies that universities may disclose to the campus community a finding that a student has perpetrated an act of sexual violence in violation of university policy, which is necessary to protect students from further harm. In other matters involving sexual harassment, the victim has the right to know the final results of the university's investigation and sanction, including a determination no violation has not been committed. Moreover, federal law known as the Clery Act requires institutions to report campus crimes, including sexual assault, an obligation that does not yield to the privacy rights of a perpetrator found guilty. A university's failure to report criminal sexual violence was at issue in OCR's recent investigation and settlement with Eastern Michigan University.

Overall, OCR's guidance letter does not create new rights and duties under Title IX, but rather, seeks to clarify existing rights and responsibilities in order to ensure that help universities protect students and avoid liability. This surely is much-needed reminder, as demonstrated by the recent and prevalent examples mentioned here of universities' botched responses to sexual harassment and sexual violence. Responsible schools and universities will use the guidance letter as an opportunity to self-inventory their policies and practices related to sexual harassment and strengthen or revise them as needed.

ASU's Reponse to Fraternity Rape Could Be Deliberate Indifference

This week, a federal district court in Arizona held that Arizona State University had to defend a lawsuit filed by a former student who was drugged and raped at a party at the Sigma Chi fraternity in 2008. The plaintiff alleges that the university's response to her report of the assault violates Title IX. In denying the university's motion to dismiss, the judge determined that the plaintiff's complaint properly alleged facts that could, if proven, provide the basis for a finding of liability against ASU. In particular, the complaint alleged an incident of harassment that was sufficiently severe, in that the plaintiff was drugged at a party and anally raped while she was unconscious. She suffered post-traumatic stress ultimately withdrew from ASU.

Also, the complaint sufficiently alleged that the university responded with deliberate indifference to harassment about which it had actual notice. This allegation actually takes two forms. First, the plaintiff alleged that an appropriate university official, the Director of Student Life - Judicial Affairs, was aware of prior incidents of sexual harassment involving the Sigma Chi fraternity and failed to take any action that could have protected the plaintiff or any other women from the risk that Sigma Chi would be the grounds for future similar incidents. Secondly, she alleged that university officials responded inadequately to actual knowledge of her own assault. When ASU campus police arrived at the emergency room where the plaintiff was being treated, they failed to give the necessary authorization for medical personnel to conduct a rape kit or authorize a nurse exam. Neither the campus police nor the university's judicial affairs investigated the incident other than to take plaintiff's statement. No one from Sigma Chi was even interviewed about the event.

This is an important decision because it allows the plaintiff to continue to press her claims not just that the university botched its response to her case, which seems pretty egregious to me, but to generally contest and shed light upon the university's culture of looking the other way about the bad behavior of a notoriously problematic fraternity. Known as a "party house," Sigma Chi had just the day before plaintiff's assault been put on probation for hazing and alcohol violations. Nor was this Sigma Chi's first offense -- the plaintiff alleged a five-year history of violations including aggression, intimidation, humiliation, and hostility toward women. If these claims prove true, mere probation seems like a mere slap on the wrist unlikely to offer meaningful protection to other students, satisfying the "deliberate indifference" requirement. That aspect of this case therefore has the potential to send the message to ASU and other universities that it doesn't pay to enable fraternities to provide the context for sexual harassment and assault.

One other observation: this is not the first time we've blogged about rape at ASU. An earlier case involving rape committed by a football player produced a settlement in 2009 that requires all the Arizona state universities to institute programs addressing issues of women's safety on campus. This obligation does not affect the Sigma Chi assault at issue in this case, which occurred prior to that settlement. But it does raise questions about the culture of sexual violence generally at ASU, and how that problem is being addressed both in and outside of the Greek system.

Decision is: Babler v. Arizona Board of Regents, Case 2:10-cv-01459-RRB (ordering denying defendant's motion to dismiss) (D. Ariz. Feb. 15, 2010) (no westlaw cite yet available)

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).
  

CU football player arrested for sexual assault

Kudos to University of Colorado for not trying to bury this incident, but rather speaking out about the charges against Michael Sipili who was arrested for sexual assault this week.
Sipili is being referred to as a "former football player" because his eligibility expired with the end of the fall season. But he is still enrolled as a student and my guess is that he is still involved in football team activities--at the very least on a social level. In other words, this is semantics. All it means is that he won't be suspended from the football team because, technically, he is no longer a member.
But CU has expressed its disappointment in Sipili, whom they let back on the team after a previous violent incident (he punched someone). Administrators were quick to point out the many steps they have taken to combat a culture of sexual harassment and assault that existed on the campus. These steps, of course, were required as part of the settlement from the 2001 sexual assault of two female student-athletes at a football recruiting party. (Other posts about this case can be found under the University of Colorado tag.) And CU seems to have taken the issue of climate change seriously. I speak as an outsider, of course, and realizing that it would not have been wise for officials at a school where sexual assault by student-athletes has been a problem to NOT say something when there has been another incident (though the circumstances, as noted in the above-linked article are quite different).
I don't have any particularly profound assessment. I think a school can have the best intentions and make concerted efforts to combat hostile climates, but these students have had 18 years of living in and participating in climates/situations with varying levels of hostility and prejudice. It's not easy work to dismantle these things. Some of us try to do it every day in classrooms--and other venues. A one-credit mandatory course is simply not going to create radical shifts in thinking in everyone. This is not to say it should be eliminated, but that we should be realistic about the results. I am pretty happy with the mini epiphanies I get to see among my own students. And I just hold out hope that others will have those moments long after they leave my classroom. It's too bad Mr. Sipili didn't have one before his alleged actions. But whether CU is supposed to shoulder some of the blame for this is not clear at this point.

Column Questions Title IX's Absence from Cheerleader's First Amendment Case

There's a good column at WomensE-News.org on the Fifth Circuit's September decision dismissing a student's claims that the school district violated her First Amendment rights when officials ordered her to cheer for another student-athlete whom she had accused of raping her several months before. While the facts of this case certainly do call First Amendment issues into question, i.e., does the cheerleader have a right to refuse to cheer in symbolic protest of a particular athlete and his conduct, and was school officials' response retaliation against her for reporting a popular student-athlete for rape? (for analysis of those issues, see here), columnist Wendy Murphy rightly points out that Title IX should have been at the foreground of this case. The student's lawyer apparently did not allege, and thus the courts did not consider, whether school officials' response to her allegations of rape constituted deliberate indifference that should have rendered the district liable under Title IX. But Murphy believes this would have been an easy argument to win. Apparently, school officials were under the false impression that they were not obligated to get involved with the case as it proceeded in criminal court, even though courts have said that such deference to law enforcement constitutes deliberate indifference. Rather than take any steps to investigate or address the matter on its own, the school let the accused student continue to play sports until his criminal conviction. As for the accuser, she was not offered any protection or even sympathy, as evidenced by the instance in which she attempted to refuse to cheer at a game for the accused student by name, but was ordered by the superintendent and the principal to cheer or go home (she chose the latter). This too violates clear Title IX precedent in the area of peer harassment, as courts have said that it is inappropriate to separate the victim from the perpetrator rather than the other way around.

So why was Title IX, the obvious source of relief and liability in this case, ignored by the lawyers, the courts, and the media until now? Murphy blames our society's reductionist tendency to view Title IX as a law only about athletic opportunity and I think that certainly comes into play. But let's imagine that early efforts to exempt sports from Title IX had passed. Would the law be popular instead as an anti-harassment law? I'm not so sure. I think it might just not be popular at all. Culturally speaking, we have a tendency to downplay sexual violence and to disregard it as a form of sex discrimination. We'd be wringing our hands about the lack of awareness about Title IX's application to sexual violence whether or not the law also applied to sports.

Sadly, this case represents a missed opportunity, both to offer some relief to the plaintiff and to raise awareness about sexual violence and sex discrimination in schools. Sadder still, the cases that do invoke Title IX in the context of sexual harassment and sexual violence -- the vast majority of judicial decisions rendered under Title IX today, as a survey of this blog would quickly reveal -- are not sending the message to potential plaintiffs, to school districts, or lawyers on either side about the role of law in this area. (It does not help matters that to learn about sex discrimination in law school, you'd have to take a class with "Women" or "Gender" in the title, and the people who take those classes are not necessarily the ones who need to be enlightened.) For these reasons, I'm particularly glad Wendy Murphy posted about this case. One column in the blogosphere (now two) won't change the culture of ignorance, but if we all keep talking about school's responsibilities to protect students from sexual harassment and sexual violence, eventually the message will get through.