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U.S. Department of Education Levies Historic Fine Against Penn State Over Handling of Sexual Misconduct Incidents
Nov 3rd, 2016 by

NOVEMBER 3, 2016

The U.S. Department of Education today announced that it is seeking to impose on Penn State University a record fine of nearly $2.4 million for failing to comply with the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act after a comprehensive review prompted by on-campus sex offenses involving former assistant football coach Jerry Sandusky.

The penalty – the largest ever assessed for Clery violations – covers 11 serious findings of Clery Act noncompliance related to the University’s handling of Sandusky’s crimes and the university’s longstanding failure to comply with federal requirements on campus safety and substance abuse. Sandusky was convicted in 2012 of sexually abusing several young boys over multiple years, including several incidents on campus.

“For colleges and universities to be safe spaces for learning and self-development, institutions must ensure student safety – a part of which is being transparent about incidents on their campuses. Disclosing this information is the law,” said U.S. Education Under Secretary Ted Mitchell. “When we determine that an institution is not upholding this obligation, then there must be consequences.”

Under the Clery Act, colleges and universities must report to the public each year the number of criminal offenses on campus and report that information to the Department which provides it to the public. In addition, in certain cases, the institution must issue a timely warning if a reported crime represents a threat to the campus community.  The institution must also have campus crime and security policies in a number of areas and disclose those polices to their students and employees.

Soon after Sandusky was indicted in November 2011, the Department’s Office of Federal Student Aid launched an investigation of Penn State’s compliance with the Clery Act. The investigation, officially known as a campus crime program review, looked at the university’s compliance from 1998 to 2011 because the allegations of abuse covered that 14-year span.

Findings:

  • Finding #1:  Clery Act violations related to the Sandusky matter (proposed fine: $27,500).
  • Finding #2:  Lack of administrative capability as a result of the University’s substantial failures to comply with the Clery Act and the Drug-Free Schools and Communities Act throughout the review period, including insufficient training, support, and resources to ensure compliance (proposed fine: $27,500).
  • Finding #3:  Omitted and/or inadequate annual security report and annual fire safety report policy statements (proposed fine: $37,500).
  • Finding #4:  Failure to issue timely warnings in accordance with federal regulations.
  • Finding #5:  Failure to properly classify reported incidents and disclose crime statistics from 2008-2011 (proposed fine: $2,167,500).
  • Finding #6:  Failure to establish an adequate system for collecting crime statistics from all required sources (proposed fine: $27,500).
  • Finding #7:  Failure to maintain an accurate and complete daily crime log.
  • Finding #8:  Reporting discrepancies in crime statistics published in the annual security report and those reported to the department’s campus crime statistics database (proposed fine: $27,500).
  • Finding #9:   Failure to publish and distribute an annual security report in accordance with federal regulations (proposed fine: $27,500).
  • Finding #10: Failure to notify prospective students and employees of the availability of the annual security report and annual fire safety report (proposed fine: $27,500).
  • Finding #11: Failure to comply with the Drug-Free Schools and Communities Act (proposed fine: $27,500).

Penn State responded to each of the Department’s findings. After a careful analysis of the university’s response, the Department sustained all findings.

The Clery Act was passed by Congress in 1990, requiring colleges and universities participating in federal financial aid programs to track and disclose information about crime on or near campus. The Department is required by law to conduct periodic reviews of an institution’s compliance with the Clery Act. These reviews may be initiated when a complaint is received, a media event raises concerns, a school’s independent audit identifies areas of noncompliance, or other reasons.

Until now, the previous highest fine was in 2007 when FSA assessed a fine of $357,500 against Eastern Michigan Universityfor violations of the Clery Act. Under a settlement, Eastern Michigan paid a fine of $350,000.

Campus crime statistics can be found at the Department’s Campus Safety and Security database. For more information, see The Handbook for Campus Safety and Security Reporting 2016 Edition and the Department’s Campus Security website.

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How Teachers and Coaches Can Defend Against Sexual Harassment
Jun 15th, 2016 by

Katz Marshall & Banks LLP

USA June 14 2016

Over forty years ago, Congress enacted Title IX of the Education Amendments of 1972 (Title IX) to eliminate sex discrimination in educational institutions. Though much progress has been made since Title IX’s enactment, gender equity issues continue to plague colleges and universities. While responsibility for ensuring full and effective compliance with Title IX requires institutional support and engagement at all levels, teachers and coaches play a particularly important role in ensuring effective enforcement of Title IX, as they are often in the best position to identify discrimination and bring it to the attention of administrators.

Unfortunately, however, it is not uncommon for teachers or coaches to face pushback from their educational institutions if and when they complain about sex discrimination. While such retaliatory acts can be intimidating, teachers and coaches should not be deterred from making Title IX complaints because of fear of retaliation. Indeed, because reporting incidents of discrimination is so vital to Title IX enforcement, the Supreme Court has held that Title IX’s private right action encompasses suits for retaliation – see Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005). That means that institutions covered under Title IX are prohibited from terminating or otherwise discriminating against a teacher or coach because he or she opposed or protested sex discrimination.

Though the statute of limitations within which you must bring a Title IX retaliation claim varies by state, all Title IX retaliation complaints require proof of three elements that teachers or coaches considering filing a complaint should be aware of. Stated simply, these elements are:

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Dept. of Education: Yes, Title IX Protects Trans Students
May 13th, 2016 by

The Department of Education is poised to release on Friday its most detailed guidelines to date explaining the obligations that schools receiving public funding have to their transgender students.

These obligations include respecting the gender identity of transgender students by using the student’s preferred name and pronouns, and ensuring them access to sports teams, educational opportunities, and sex-segregated facilities that correspond with their gender identity, according to a draft of the DOE letter obtained by The Advocate. 

The letter, which will be sent Friday to public K-12 schools nationwide, as well as to colleges and universities that receive federal funding, plainly defines a school’s responsibilities to its trans students under Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in schools that receive any public funding.

“This prohibition encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status,” reads the letter. “For purposes of the Department’s enforcement of Title IX, as explained in more detail in this letter, a student’s sex is determined by the student’s gender identity.”

The document further affirms that schools must use a student’s preferred name and pronouns, regardless of what is listed on the student’s official school records or government-issued identification. It notes that transgender individuals — especially young people — are frequently unable to attain updated legal documents, either because the state they live in does not allow such changes, because the student’s parents or guardians are not supportive of their identity, or because updating such documents is often time-consuming, costly, and frequently not an option available to people under the age of 18.

The letter, signed by DOE officials and members of the U.S. Department of Justice, is deemed a “significant guidance document,” though it is not legally binding. It builds on legal interpretations of Title IX’s trans inclusions long advanced by the Obama Administration, and marks the most direct instruction the federal agency has provided to schools since it issued a (much shorter) memo on the same issue in 2014.

The guidance comes in the same week that U.S. Attorney General Loretta Lynch delivered a historic speech affirming the civil rights of transgender Americans, promising that the Department of Justice and the entire Obama Administration will use its full force to put a stop to anti-transgender discrimination. Lynch (pictured above with Education Secretary Arne Duncan) also announced during that speech that the DOJ had filed a federal civil rights lawsuit against North Carolina for its discriminatory law known as House Bill 2, which, among other things, bars transgender people from using restrooms and locker rooms in government-run spaces that correspond with their gender identity.

The letter goes on to define several basic terms regarding transgender identities, many of which have been widely misinterpreted in the wake of controversial laws in North Carolina and Mississippi, which bar transgender people from using public facilities that match their gender identities.

The draft letter’s “terminology” section reads:

“Gender identity refers to an individual’s internal sense of gender.  A person’s gender identity may be different from or the same as the person’s sex assigned at birth.

Sex assigned at birth refers to the sex designation recorded on an infant’s birth certificate should such a record be provided at birth.

Gender expression refers to how individuals represent their gender to others, often through appearance or behavior.

Transgender describes those individuals whose gender identity is different from the sex they were assigned at birth. A transgender male is someone who identifies as male but was assigned the sex of female at birth; a transgender female is someone who identifies as female but was assigned the sex of male at birth.”

The letter primarily focuses on the implementation of Title IX’s protections against sex-based discrimination in educational settings, stressing that the Department of Education “treats a student’s gender identity as the student’s sex for the purposes of Title IX.”

“This means that a school must not treat transgender students differently from the way it treats other students of the same sex,” continues the draft letter. “For example, a school must treat transgender female students the same way it treats other female students.”

Federal funding, including financial aid, is generally tied to a school’s compliance with Title IX, except in cases where a school has obtained a waiver — often seeking a religious exemption. As a condition of receiving those federal funds, schools must guarantee that they will not “exclude, separate, deny benefits to, or otherwise treat differently on the basis of sex” any student attending the institution.

The letter instructs that a school must accept and affirm a student’s gender identity from the moment administrators are notified by the student’s parent or guardian. This affirmation includes providing equal access to the appropriate sex-segregated activities and spaces, including locker rooms and bathrooms.

Crucially, the letter notes that schools may not require any student to undergo any clinical, surgical, or mental health treatment as a condition of the school accepting the student’s affirmed gender identity. Schools also may not require that transgender students produce an updated birth certificate that reflects their gender identity as a condition of having that identity respected on campus. Such requirements constitute a violation of Title IX, the draft letter explains.

Further, the Department is clear that objections by other students, parents, or faculty to a transgender student’s identity are not legally sufficient reasons to deny that student equal access. In responding to such objections, the school cannot place “a greater burden on transgender students than other students.” Schools may address concerns about privacy in locker rooms or bathrooms by allowing all students access to alternate facilities, like single-stall restrooms, however a school may not require that only the transgender student use a separate facility.

“Discomfort with transgender people expressed by anyone, inside or outside of the school community, cannot justify denying transgender students equal access to educational programs and activities or treating transgender students inconsistent with their gender identity,” reads the draft letter.

The letter goes on to outline “common issues” that schools and administrators may face when working to support transgender students, including ensuring a “safe and nondiscriminatory environment,” using correct names and pronouns, protecting a transgender student’s privacy (including their birth name and sex assigned at birth) and ensuring equal access to sex-segregated activities and facilities.

While Title IX does allow for sex-segregated facilities, athletic teams, housing, and in some cases, entire schools, the draft letter is adamant that transgender students be granted access to such spaces that correspond with their gender identity.

In an example that seems pulled from the headlines of a drawn-out legal battle in Palatine, Illinois, where a transgender girl was barred from using the girl’s locker room and bathroom, and instead required to use a separate staff bathroom to change for class, the letter explains:

“A school may not require transgender students to use facilities inconsistent with their gender identity (e.g., a school may not require a transgender female student to use the male restroom) or to use individual-user facilities when other students are not required to do so. A school may, however, make individual-user facilities available to all students who seek additional privacy.

“For example, the Department may find a violation where a school requires a transgender student to use the nurse’s office to change for gym class. In that scenario, one nondiscriminatory way in which to accommodate any privacy concern would be to allow the transgender student to access the locker room consistent with the student’s gender identity and, if necessary, make other arrangements to increase privacy for all students without isolating or burdening the transgender student, such as rearranging locker assignments, hanging privacy curtains, or providing all students with access to individual-user alternatives.”

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Former Women’s Basketball Coach Resolves Claims Against the University of North Florida for $1.25 million
Mar 11th, 2016 by

Former Women’s Basketball Coach Resolves Claims Against the University of North Florida for $1.25 million

Correia & Puth client Mary Tappmeyer settles her Title IX claims of retaliation and sex discrimination against University of North Florida

JACKSONVILLE, FLORIDA (March 11, 2016) – The University of North Florida (UNF) and its former women’s basketball coach Mary Tappmeyer have reached an agreement to settle Coach Tappmeyer’s sex discrimination and retaliation claims associated with her termination from UNF in March 2015. Washington, D.C. firm Correia & Puth, PLLC represented Coach Tappmeyer in her civil rights claims against UNF, with additional support from Nancy Hogshead-Makar, CEO of Champion Women.

Coach Tappmeyer alleged that UNF terminated her from her long-standing position as UNF women’s basketball coach in March 2015 in retaliation for her complaints of sex discrimination experienced by female student athletes and because of sex discrimination against her. Coach Tappmeyer alleged that UNF provided male basketball recruits academic exceptions to UNF’s admissions requirements, but refused any exceptions to female players; that the women’s basketball team had unequal operating budgets, travel budgets, locker rooms, and training and office facilities as compared to the men’s team; and UNF disparaged the women’s basketball team coaches to current players, recruits, other members of the athletic department, UNF donors, and the UNF community.

Coach Tappmeyer also alleged sex discrimination against her and other female coaches of UNF’s women’s teams. She asserted that while UNF paid her significantly less than her male counterpart, the University held her to more stringent performance standards than her male counterpart, and thwarted her recruitment and coaching efforts.

Coach Tappmeyer was head coach of the women’s basketball team since its inception at UNF in 1991. She alleged that UNF’s actions violated Title IX of the Education Amendments of 1972, theEqual Pay Act of 1963, and Title VII of the Civil Rights Act of 1964. UNF will pay Coach Tappmeyer $1,250,000.00 to settle her claims prior to litigation.

“Coach Tappmeyer is a dedicated advocate for her female student athletes. We asserted that she stood up for her players when UNF basically suffocated her program,” stated Linda M. Correia, lead counsel for Coach Tappmeyer. “This resolution sends a clear message that retaliation is not okay when coaches stand up for their players’ equal rights. Since the passage of Title IX in 1972, women and girls have made significant strides in education. Despite great progress, inequities in athletics still remain, and our goal is to end barriers to participation and success in athletics.”

Regarding the resolution of her claims, Coach Tappmeyer stated, “As a life-long player and then coach, I know first-hand how great the game of basketball is and how significant of a role the game can play in a student’s life. Women at UNF deserve an equal opportunity to not only participate in athletics, but also to succeed. I am hopeful UNF will work to get back to the days when it prided itself on gender equity in athletics. Though I wish my time at UNF would have ended differently, I look forward to continuing to root for and support the female Ospreys.”

Nancy Hogshead-Makar had high praise for Tappmeyer, “I applaud Coach Tappmeyer for pursuing her ongoing sex discrimination complaints over the past year. Many coaches would have taken the overt discrimination in the teeth and headed to a new school. Her settlement today opens up new pathways for gender equality at the University of North Florida and across the country.”

For more information on this case, contact Correia & Puth at (202) 602-6500 orfirm@correiaputh.com.

*  *  *

Correia & Puth, PLLC, is a Washington, DC law firm dedicated solely to representing employees confronting workplace discrimination, retaliation, and unfair treatment. The firm is a recognized, national leader on using Title IX as an effective mechanism for maintaining educational environments free from discrimination and retaliation.

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EEOC Files First-Ever Sexual Orientation Discrimination Lawsuits
Mar 4th, 2016 by

In a historic move, the Equal Employment Opportunity Commission (EEOC) has filed its first two lawsuits for discrimination based on an employee’s sexual orientation.

In most states, it is still legal for employers to fire workers based on their sexual orientation or gender identity; according to the Human Rights Campaign (HRC), an LGBT rights advocacy group, only 19 states and D.C. currently prohibit both of these discriminations. Because there are no federal protections for LGBT employees, the EEOC has called the cases “groundbreaking.”

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