Connecticut Law Tribune
Monday, April 11, 2011
History Revisited: Yale sexual harassment complaint echoes Title IX case from 1970s
By MARIE P. GRADY
For Ann Olivarius, news that Yale University is being investigated for allegedly mishandling sexual harassment complaints brought back some memories.
In 1977, she was a plaintiff in a landmark suit against Yale that marked the first time sexual harassment claims were brought under Title IX, which bans gender discrimination at federally funded schools. The suit, along with a sensational 1976 protest by members of the women’s crew team, spurred the private, Ivy League school to institute changes that made it a recognized leader in Title IX enforcement.
Fast-forward 34 years and the school that educated five U.S. presidents and served as an incubator for the feminist movement now is accused again. Olivarius, a Rhodes Scholar who became a London-based, internationally respected lawyer, is not surprised.
“With Alexander v. Yale, we began to define the problem of sexual harassment, and we began to draw attention to it, but we did not solve it. And I think that we had no illusions back then that this would be an easy battle,” Olivarius said via e-mail of the suit that began in 1977. “Sexual misconduct is a slippery and insidious thing – it is difficult to prove and it is difficult to talk about.”
Lawyers and scholars with expertise in Title IX enforcement say the Yale allegations shine a spotlight on an issue that is hard to quantify and harder still for institutions to acknowledge. Complicating matters, some say, are First Amendment protections that make it difficult for institutions, particularly public ones, to rein in sexually charged speech.
The recent complaint is being investigated by the U.S. Department of Education’s Office of Civil Rights. In it, the 16 complainants detail a history of incidents, including female freshmen being named and ranked in a “Pre-Season Scouting Report” e-mail based on the number of alcoholic drinks it would take to get them into bed. The complaint also recounts incidents in which male fraternity pledges shouted slogans at women encouraging rape, including “No means yes,” and stole T-shirts made by sexual assault victims.
Alice Buttrick, a 2010 graduate of Yale’s Jonathan Edwards College, sat on the board of the school’s Women Center when the “Pre-Season Scouting report” was sent out. She is currently working from Olivarius’ London law office on the Rhodes Project, a study of gender and achievement.
“Those women spent their first months at campus wondering which of the men in their classes or extracurriculars might be thinking of them as prey,” she recalled. “So, when the University failed to take any action to reassure the community, those women, that Yale valued them as people and felt that their personhood was worth defending, that was a huge blow.”
For its part, Yale last week announced the formation of a new committee to deal specifically with sexual misconduct complaints and said it will cooperate with the investigation. In an open letter to the college community, Yale College Dean Mary Miller said the school does not tolerate sexual harassment, has instituted a host of programs to combat it, and has meted out discipline as warranted after investigating “questionable” incidents.
Lawyers familiar with Title IX say the nature of sexual harassment itself makes it less easy to prove than gender inequities in sports, which can be tracked by numbers of athletes, teams and resources. Although Yale is a private school, public schools attempting to rein in offensive speech also must be mindful of the First Amendment.
“Schools must strike a legal balance between the rights of all of the parties involved,” said Patrice McCarthy, deputy director and general counsel for the Connecticut Association of Boards of Education.
Erin E. Buzuvis, an attorney and full-time faculty member at Western New England College School of Law in Springfield, Mass., said free speech guarantees do not trump a college’s duty to ensure students are not subjected to a hostile campus environment.
“Sexual harassment in the school context and other contexts has raised First Amendment challenges,” said Buzuvis, who has written extensively about Title IX and co-founded a blog site on the issue. “So far, those haven’t curtailed steps schools have been encouraged to take.”
One First Amendment scholar pointed out that Yale, as a private institution, is not constricted by constitutional free speech guarantees. Martin Marguiles, professor emeritus at Quinnipiac University School of Law and a cooperating attorney with the American Civil Liberties Union, said public schools would have difficulty banning the fraternity taunts because they do not fall into any exception from free speech protections.
“Yale, however, is not a government actor,” he said. “Therefore, the First Amendment does not constrain it, and it may impose any sort of speech code it wishes as long as the code’s substantive and procedural provisions are consistent with the school’s contractual obligations to its students.”
Buzuvis said sexual harassment still has a tendency to fly under the radar years after it was catapulted into public consciousness by Anita Hill’s explosive allegations against then-Supreme Court nominee Clarence Thomas. She said the legal strategy behind the current Yale complaint — aggregating the complaints of 16 women to point to an alleged pattern of unchecked abuse — presented a stronger case than if individuals filed separate complaints.
Locker Room Complaint
That strategy is reminiscent of Alexander v. Yale, in which five women alleged sexual assault and harassment by several faculty members. Like the current complaint, the 1977 suit did not seek damages but sought the university’s commitment to acknowledge the problem and establish a system to deal with it.
The suit was filed a year after the Yale women’s crew team captured international attention when members stripped to the waist and wrote the words Title IX on their breasts and backs to protest the lack of locker rooms.
Kristen Galles, who is co-litigating a Title IX athletic inequity case against Quinnipiac University with Pullman & Comley attorney Jonathan Orleans, said schools have a disincentive to take harassment claims and alleged assaults seriously. Under the federal Clery Act, schools must disclose all campus crimes, statistics which can cause potential students to shy away.
“Many, many schools try to cover this stuff up,” said Galles, whose practice is based in Virginia. “They don’t want complainers to report this stuff to police.”
Even though schools can be stripped of all federal funding under Title IX, Galles and Buzuvis said that’s never happened since the law was enacted in 1972. Instead, the threat is used to gain compliance. In Yale’s case, more than $500 million is at stake.
In Galles’ mind, there is no question that the incidents complained of at Yale constitute sexual harassment. “The legal standard is … what would a reasonable woman perceive as sexual harassment?” she said. “There’s just no doubt.”
Colleges ignore such complaints at their peril. Court rulings, starting with a 1992 U.S. Supreme Court decision, have found colleges liable for damages for deliberate indifference to a known complaint or a culture that encouraged the behavior.
As the Yale story unfolded last week, Vice President Joseph R. Biden Jr. and Education Secretary Arne Duncan reminded schools that they are required under Title IX to designate a coordinator to oversee Title IX complaints, issue a notice of non-discrimination policies and publish grievance procedures that provide “prompt and equitable resolution of complaints.”
Critics pointed to the fact that the college’s web site did not identify a Title IX coordinator prior to the complaint. Buttrick, who graduated last year, also said the school did not make public what, if any, disciplinary action was taken against the fraternity members. She said she respects confidentiality issues, but believes the university should inform the community of any punishment meted out, educate the perpetrators, and ban speech that disrupts students’ education.
Alice Pritchard, executive director of Connecticut Women’s Education and Legal Fund, said Yale has an opportunity to lead in the effort to stamp out sexual harassment on campuses. If it does, observers say it will be another example of strong Yale women leading the charge.
Olivarius, the proud mother of two Yale-educated feminists, is aware the problem she shined light on three decades ago continues to exist, despite Yale’s efforts to remedy it.
“Much like my experience in the late 70s, the problem is not unresponsive or unsympathetic administrators but of an institution too weighted by its size and prestige to act quickly and comprehensively unless outside pressure is produced,” she said. “And, in the form of a highly public Title IX complaint, here it is.” •