• Appeals court upholds Ted Roberts “sextortion” conviction [Bashman with lots of links, San Antonio Express-News]
• Alito incredulous at FTC: you guys have failed to raise a peep about bogus tar & nicotine numbers for how long? [PoL]
• Please, Mr. Pandit, do the country a favor and don’t litigate Citigroup’s rights to the utmost in the Wachovia-Wells Fargo affair [Jenkins, WSJ]
• Docblogger Westby Fisher, hit with expensive subpoena over contents of his comments section, wonders whether it’s worth it to go on blogging [Dr. Wes, earlier]
• “Title IX and Athletics: A Primer”, critical study for Independent Women’s Forum [Kasic/Schuld, PDF; my two cents]
• Case of whale-bothering Navy sonar, often covered in this space, argued before high court [FoxNews.com]
• More on Kentucky’s efforts to seize Internet domain names of online gambling providers [WaPo, earlier]
• Exposure to pigeon droppings at Iraq ammo warehouse doesn’t seem to have affected worker’s health, but it was disgusting and she’s filed a False Claims Act lawsuit against private contractor for big bucks [St. Petersburg Times, Patricia Howard, USA Environmental; but see comment taking issue]

• Trips over firefighter’s bag at rescue scene, now wants cash from city [Salem, Mass., News]
• Oh, my: “Bidens owe SimmonsCooper [huge mass tort firm in Madison County, Ill.] $1 million in hedge fund deal” [MC Record, earlier] Update: plenty more in a Wednesday WSJ editorial.
• Florida Supreme Court rejects latest attempt by attorney Montgomery Blair Sibley to resist discipline [North Country Gazette]
• “Women’s advocacy groups have persuaded Congress to begin intensive Title IX equity reviews of science programs.” Bad news for American academic science [Sommers, AEI/Teachers College Record]
• You may have run into everyone’s favorite fashion law blog. But did you know there’s also a furniture law blog? [Womble Carlyle; via Blawg Review #179 at Securing Innovation]
• Eavesdrop on jury deliberations, get wind of defense verdict, move quick to settle case? That would be a very naughty thing for a lawyer to do [American Justice Partnership]
• Myrhvold the last straw: “Up until now I have been criticized in many corners for taking the side of so-called patent trolls. …No tax policy could ever do as much damage to an economy.” [Gene Quinn, PatentFools.com, also via above]
• Okay, towns, build sidewalks or else [four years ago on Overlawyered]

Federal civil rights enforcers wouldn’t be crazy enough to wreak havoc in science programs the way they’ve wrought havoc in men’s college athletic programs, would they? Don’t assume they wouldn’t. (John Tierney, “A New Frontier for Title IX: Science”, New York Times, Jul. 15).

The quota pressures of the federal Title IX law have resulted in the axing of hundreds of men’s college sports teams, and now activists are preparing to intensify their legal campaign at the high school level, reports Jessica Gavora:

At the center of the pro-quota activists’ marching orders for Congress today is something called the “High School Sports Information Collection Act.” It’s modeled after the Equity in Athletics Disclosure Act (EADA), which for a dozen years has forced colleges and universities to annually report their athletic participation and expenses — broken down by sex — to the feds. The EADA was meant to be, and is, a one-stop-shopping list for trial lawyers and activist groups looking for schools to sue for failing to meet the Title IX quota. Now, courtesy of Senators Olympia Snowe and Patty Murray, they are about to have the same litigation hit list of high schools.

In a year in which Rutgers, James Madison, Ohio University, Butler, Clarion, Slippery Rock, and Syracuse have eliminated hundreds of men’s roster spots in full or in part due to Title IX, we have yet to see — thankfully — boys’ high-school teams eliminated under the law. But we are beginning to see boys athletic opportunities be limited due to Title IX quota creep in high schools.

(Jessica Gavora, “Title IX Trickle-Down”, National Review Online/CBSNews.com, Jun. 20)(broken link now fixed).

• More on that Edwardsville, Ill. Pizza Hut door-swing case and its attorney-complainant [Madison County Record; earlier]


• Workers at U.K. health and safety agency told not to move chairs in the office, they might hurt themselves [Daily Mail via Nobody's Business]


• Lawyer who hoped for $25 million will appeal arbitrator’s ruling awarding him only a solitary buck ($1.00) for “redundant and unnecessary” work on San Diego pension crisis [Lattman]


• New at Point of Law: Ted on Sen. Fred Thompson, Oklahoma enacts liability reform, RFK Jr. as mass-tort tout, birthing balls, and much more;


• Title IX from outer space: now it’s Virginia’s James Madison U. axeing teams [USA Today; more]


• Westchester County, N.Y. dominatrix sues police dept., saying media frenzy dashed her hopes of Wall Street career [Journal-News; more on attorney Ravi Batra]


• Parodists, retire now: ex-N.J. governor McGreevey, disgraced after hiring unqualified paramour for key safety post, appointed to teach course on ethics [Orac]


• “School choice, but only for the most irritating parents” [Coyote on Supreme Court's pending special-ed case; more]


• Will tainted-pet-food episode give lawyers their long-sought breakthrough on loss-of-companionship, other intangible damages for animal injury? [NLJ; earlier]


• Disgruntled former partner withdraws charge of impropriety over Oz breast implant fees [The Australian; Aust. Prof. Liab. Blog; earlier]


• Dr. who delivered Illinois Gov. Blagojevich’s daughter throws in the towel [three years ago on Overlawyered]

Once again Title IX spoils the fun for kids of both sexes, this time in the realm of cheerleading, where school officials, reports the New York Times, are “redefining the role of cheerleaders in response to parental and legal pressures” — in particular, they’re requiring that cheerleaders be forced to devote half their time to cheering girls’ sports, “regardless of whether the girls’ basketball teams wanted and/or asked for” them, to quote the New York rule. It would be too much to expect actual criticism of the sacrosanct sex-equality-in-sports law, but the report does make clear that most of the kids involved, including a large share of the girls as well as the boys, don’t find the new way of doing things an improvement. “Rosie Pudish, the parent who filed the original complaint, said she did so even though her own daughter, Keri, a varsity basketball player at Johnson City High School, did not particularly want cheerleaders at her games.” (Winnie Hu, “Equal Cheers for Boys and Girls Draw Some Boos”, Jan. 14) [broken link fixed now]. More: Nov. 2, 2006, May 7, 2005, etc., as well as here and here.

They’ve set up a group called the College Sports Council, and are rallying today in Washington, D.C. (Jessica Gavora, National Review “Phi Beta Cons”, Nov. 1; Steve Nearman, “Title IX enforcement hits James Madison hard”, Washington Times, Oct. 29)(more).

Back in 1999, in Davis v. Monroe County Board of Education, the Supreme Court laid down a test for when sexual harassment rises to the level of “discrimination” for purposes of Title IX, the federal law banning sex discrimination in schools. Recognizing the fact that students frequently insult and tease one another in ways that would be intolerable in the workplace, the court set the bar higher for plaintiffs suing schools rather than employers. Instead of having to show just that harassment was “severe or pervasive” enough to create a “hostile or offensive environment,” as employees do, students have to show that harassment was severe and pervasive enough to interfere with access to an education.

Oddly, this protection against lawsuits has been overlooked not just by some lower court judges, but also by the very schools that benefit from it. In Jennings v. University of North Carolina, the Fourth Circuit Court of Appeals is rehearing en banc a recent panel decision which ruled 2-to-1 against a harassment claim based on inappropriate sexual discussions between a male coach and female athletes, which the plaintiff witnessed.

The panel majority argued that the conduct was not “severe or pervasive” enough to create a “hostile environment,” since the discussions were seldom aimed at the plaintiff. (Courts have typically given little weight to such “second-hand harassment”). The dissent argued that the conduct was severe or pervasive enough to create a hostile environment. The University seems not to have disputed that the “severe or pervasive” standard applied, or that the plaintiff could prevail merely by showing the existence of a “hostile environment,” even though other courts have recognized that harassment of students by school employees must be both severe and pervasive enough to interfere with access to an education.

But the standard for harassment claims against schools is more exacting, by design. In the higher education context, there are additional reasons for a more demanding standard. As Justice Kennedy observed in his dissent in the Davis case, the lower courts have repeatedly invalidated college harassment codes on First Amendment grounds. Most of the cases Justice Kennedy cited involved codes that banned speech that creates a hostile environment, much like workplace harassment law.

While a single offensive utterance doesn’t create a hostile work environment all by itself, a complainant can allege a hostile environment based on the offensive utterances of many different speakers, even if none of them individually make many offensive statements or intend to create a hostile environment. That effectively forces many employers to adopt “zero tolerance” policies banning racist or sexist speech.

By contrast, the Fourth Circuit’s own ruling in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993), prevented a university from prohibiting racist and sexist student speech that allegedly created a “hostile and distracting learning environment.”

Moreover, students routinely have R-rated discussions in college dorm rooms that might give rise to a sexual harassment claim under the PG-rated standards of the workplace. As the Eleventh Circuit observed in Sparks v. Pilot Freight Carriers, 830 F.2d 1554, 1561 n.13 (11th Cir. 1987), “most complaints of sexual harassment are based on actions which, although they may be permissible in some settings, are inappropriate in the workplace.”

By relying on workplace standards, the university may well lose a case it would otherwise win. As a result, colleges in the Fourth Circuit may end up having to police private sexual conversations among students in ways that are difficult to enforce, especially if the full Fourth Circuit rejects the panel’s reasoning and treats comments overheard by a plaintiff, but not aimed at her, as harassment.

On Monday, in Arlington Central School District v. Murphy, the Supreme Court limited the court costs recoverable under the Individuals with Disabilities Education Act (IDEA), holding such costs did not include the cost of expert witnesses hired by the plaintiffs. This is an important ruling because IDEA suits are the most common variety of student lawsuit in federal court. Suits under the IDEA dwarf the number of lawsuits brought by students under the Constitution. They also have far more effect on school discipline, since the IDEA makes it very difficult to suspend students with behavioral, emotional, or other disabilities from school for misconduct, even when their misconduct is severe and unrelated to their disability.

The Supreme Court reasoned that the IDEA is a spending clause statute, which only binds school districts that accept federal funds, and that lawsuits against recipients of federal funds should not be allowed unless they have “clear notice” in the statute of their potential liability when they accept federal funds.

This “clear notice” principle, if applied to other laws, could help stem a flood of unanticipated lawsuits and administrative charges against school districts and hospitals. For example, Title VI of the Civil Rights Act forbids racial discrimination by recipients of federal funds. In practice, the Education Department has turned this simple ban on discrimination into an affirmative mandate imposed on schools to provide “oral and written translation services” to non-English speakers in a host of foreign languages free of charge. It interprets the statute as requiring that any parents who do not speak English be given written or oral translations of school information, even if the parents’ language is obscure and spoken by few students at their child’s school.

This duty is not clearly expressed in the Title VI statute, which Alexander v. Sandoval, 532 U.S. 275 (2001) ruled only reaches intentional racial discrimination. Nor is the duty even clear from the Education Department’s codified Title VI regulations, which prohibit not only intentional discrimination but also unintentional, “disparate impact” discrimination. A “disparate impact” discrimination claim requires a lot of affected students or employees, with big gaps between different races, not just language groups, much less a failure to accommodate rarely spoken Third World languages. (Moreover, even banning “disparate impact” may be beyond the Department’s authority under the Supreme Court’s Alexander v. Sandoval decision.)

(Federal agencies’ bilingual education mandates are not easy to satisfy. While working in the Education Department’s Office for Civil Rights, I learned that school districts investigated over their accommodation of non-English speakers are uniformly and invariably found by OCR to be in violation of Title VI).

The Supreme Court’s decision should prompt federal civil rights agencies to revisit their expansive interpretations of federal spending clause statutes like Title VI, Title IX, and the Rehabilitation Act.

The U.S. Supreme Court, sending a case back to the Sixth Circuit, has kept alive Michigan school athletic directors’ hopes of proving that they have a rational basis for scheduling some girls’ sports in different seasons than the equivalent boys’ sports (see Dec. 24-27, 2001; Jul. 10, 2004). (”Supreme Court ruling delays decision”, Saginaw News, May 3; Hope Yen, “High Court Asks 6th Circuit to Reconsider Girls Sports Seasons Ruling”, AP/Law.com, May 3). Mick McCabe of the Detroit Free Press says that based on actual results, the schools deserve to prevail; Michigan has one of the nation’s highest rates of participation by girls in sports and disproportionately graduates girls who win athletic scholarships in the relevant sports of volleyball and basketball. (”Gender equity no-brainer as Title IX case”, May 6).

“A nonprofit group that objects to a 2001 [GAO] report on Title IX, the 1972 law that bars gender discrimination at schools receiving federal funds, has decided to sue the messenger. The report, ‘Intercollegiate Athletics: Four-Year Colleges’ Experiences Adding and Discontinuing Teams,’ found that the number of men’s and women’s sports teams both increased from 1981 to 1999, although the rise in men’s teams was smaller. The report was a blow to critics who argued that enforcement of Title IX had encouraged colleges and universities to cut men’s programs to comply with the law.” So, one group hurt by the study, the College Sports Council, decided to sue, claiming that the methodology was flawed and that the results have “misled” Congress. Comptroller General David M. Walker said that this is the first time the GAO has been sued over the contents of a report. But, as Walker said, “In America, anybody can sue anybody about anything.” (Christopher Lee, “Nonprofit Sues GAO Over Title IX Report,” Wash. Post, Jan. 10).

“Separate soccer seasons for girls’ teams in two Westchester, N.Y., school districts violate civil rights laws banning gender discrimination in athletics, the 2nd U.S. Circuit Court of Appeals ruled [last month].” The Mamaroneck and Pelham school districts had unsuccessfully argued that logistical concerns — notably a shortage of soccer fields to play on — justified the practice of having boys play soccer in the fall and girls in the spring. (Mark Hamblett, “Separate Soccer Found to Violate Civil Rights”, New York Law Journal, Jun. 8). For a similar ruling in Michigan, see Dec. 24-27, 2001; letter to the editor, Feb. 28, 2002. More: May 7, 2005.

“‘Prosecutor had ordeal as defendant’“, May 14, 2003. 

Sex abuse charges, 2003: “‘Sex, God and Greed’“, May 28; “‘No Crueler Tyrannies’” (Dorothy Rabinowitz), May 8 (& Apr. 17, 2001). 2002: “‘Reno owes the public answers’“, May 7; “Updates” (rape shield laws), Jan. 9-10 (& more on Jovanovic case: Dec. 23-26, 1999).  2001: “Sued if you do dept.: co-worker’s claim of rape“, Nov. 7-8; “‘Teen sex offenders face years of stigma’“, Nov. 5; “‘Crying wolf’“, Oct. 30;  “‘Proposed Law Would Consider Alcohol as Date-Rape Drug’” (Wisc.), Oct. 3-4. 2000: “Federal commerce power genuinely limited, Supreme Court rules” (strikes down VAWA’s lawsuit provision), May 16 (and see Wendy Kaminer, Feb. 24); “Updating Jane Austen“, Apr. 28-30; “Court rejects ‘telephone sex slave’ charge“, Apr. 24; “Philadelphia: feminist groups to be consulted on whether to classify incidents as rape“, Mar. 27 (and see Cathy Young, April 6); 1999: “Okay, we admit it: we admire these lawyers” (Wenatchee defenders), Sept. 4-6; “Personal hell“, Jul. 31-Aug. 1. 

“Employers liable for not filtering raunchy spam?“, Apr. 10-13, 2003.

Watch those emails: “Employers liable for not filtering raunchy spam?“, Apr. 10-13, 2003; “Why we lose workplace privacy“, Aug. 9, 2001; “Watch those fwds” (Dow Chemical fires employees for email use), Aug. 21-22, 2000; “Oops: D.A.’s and judge’s fwding of sex pics deemed ‘unfortunate event’“, April 11; “Harassment-law roundup” (email-shredding software), Feb. 19-21; “Emails that ended 20 Times careers“, Feb. 8-9, 2000; “Please — there are terminals present” (Bloomberg censors its terminals), July 30, 1999. 

“After failed workplace romance, a $1.3 million bill“, Feb. 6-9, 2003.

“Incoherence of sexual harassment law“, Oct. 15, 2002.

Sued either way: “Investigate, but gently“, Sept. 25-26, 2002; “‘Ex-Teach’s Suit: Kids Abused Me’“, Jun. 26-27, 2002; “Sued if you do dept.: co-worker’s claim of rape“, Nov. 7-8, 2001; “EEOC: unfiltered computers ‘harass’ librarians“, Jun. 4, 2001; “Customer offense” (supermarket bagger with Tourette’s), Jun. 9-11, 2000; “Columnist-fest” (Mona Charen on Mar. 10-12 story, below), Apr. 6; “Accused of harassment; wins $2 million from employer“, Mar. 10-12 (& update Jun. 2, 2003: award reversed); “‘Judgment reversed in Seinfeld case’“, Feb. 26-27, 2000; “Employment-law retaliation: real frogs from ‘totally bogus’ gardens“, Sept. 29, 1999. 

“Banish those desk photos of spouse at beach“, Aug. 29-Sept. 2, 2002. 

“Clipboard-throwing manager = $30 million clipping for grocery chain“, Apr. 19-21, 2002 (& update Jul. 26-28: damages cut to $8 million); “‘$3 million awarded in harassment’” (Illinois police department), Dec. 19, 2001; “Fieger’s firecrackers frequently fizzle” ($20 million harassment verdict against Chrysler), May 31, 2001; “The stuffed-grape-leaf standard” (feminist litigator asserts that $300K isn’t that much money), August 14-15, 1999. 

“‘Surgeon halts operation over foreign nurses’ poor English’” (U.K.: he’s then threatened with disciplinary action for racism), Jul. 25, 2002. 

“Catharine MacKinnon, call your office“, May 16, 2002. 

“An eggshell psyche at U.Va. Law“, Apr. 8-9, 2002. 

“Jail for schoolyard taunts?“, Feb. 27-28, 2002; “‘Boy faces jail for slapping girl’s bottom’“, Jan. 5-7, 2001; “Annals of zero tolerance” (six-year-old’s “sexual harassment”), May 22, 2000. 

“European workplace notes” (UK: harassment of dyslexic), Feb. 25-26, 2002. 

“Firehouse blues” (girly mags, Alaska), Feb. 20-21, 2002. 

“‘Woman Wins Verdict, but no Money, Against Seagal’“, Jan. 4-6, 2002. 

Office dating, “love contracts”: “Love contracts“, Dec. 10, 2001; “Ask the experts (if that’ll help)“, Oct. 19, 2000; “Ministry of love-discouragement“, May 3; “‘Love contracts’ spreading to U.K.“, Dec. 31, 1999-Jan. 2, 2000; “Weekend reading: evergreens” (”love contract” for office romances), Dec. 3-5, 1999. 

“Employee’s right to jubilate over Sept. 11 attack“, Oct. 9, 2001. 

“‘Lawsuit demands AOL stop anti-Islamic chat’“, Sept. 3, 2001. 

“‘We often turn irresponsibility into legal actions against others’” (Robyn Blumner on U. of South Fla. art student harassment case), Aug. 13-14, 2001. 

“Chandra, Monica, and sex-harass law“, July 27-29, 2001. 

“Spoof memo draws EEOC probe“, June 26, 2001. 

“‘Hearsay harassment’ not actionable“, June 12, 2001. 

“EEOC: unfiltered computers ‘harass’ librarians“, June 4, 2001 (& see “Columnist-fest” (Wendy McElroy), June 22-24. 

“Mistletoe dangerous even when absent“, April 18, 2001. 

“‘2000’s Ten Wackiest Employment Lawsuits’” (too much sex talk in sex shop), April 13-15, 2001. 

“Appeals panel: schools’ harassment rule unconstitutional“, Feb. 27, 2001; “Weekend reading” (Supreme Court’s invention of Title IX harassment law), August 21-22, 1999. 

Business climate: “Why we lose workplace privacy“, Aug. 9, 2001; “Ask the experts (if that’ll help)“, Oct. 19, 2000; “The scarlet %+#?*^)&!” (companies cut clients loose for profane language), March 7, 2000; “‘Personally agree with’ harassment policy — or you’re out the door“, Sept. 22, 1999; “EEOC encourages anonymous harassment complaints“, Sept. 3, 1999.

Hate speech, hate crime laws: see free speech and media law page. 

“Columnist-fest” (Sarah McCarthy on Paula Jones case), Nov. 14, 2000. 

“Don’t meet with her alone“, Nov. 1, 2000. 

“Ask the experts (if that’ll help)“, Oct. 19, 2000. 

“White House pastry chef harassment suit“, Sept. 18, 2000. 

“Harassment law roundup” (Confederate flags on employee cars, Jeffrey Rosen book, Avis v. Aguilar, do-as-we-say case), Sept. 11, 2000. 

“Embarrassing Lawsuit Hall of Fame” (Mass. agency finds flatulence not harassing), Aug. 14, 2000. 

“From the U.K.: watch your language” (college, job bureau restrict use of “lady”, “hardworking”), June 13, 2000. 

“Victim of the century?” (principal collects disability benefits for sexual compulsion), June 2-4, 2000; “Doctor sues insurer, claims sex addiction“, Oct. 13, 1999. 

“What the French think of American harassment law“, May 25, 2000. 

“The four rules of sexual harassment controversies” (Claudia Kennedy case; female-on-male touching case; spanking initiation), May 15, 2000. 

“Comment of the day“, May 5-7, 2000; “Recommended reading” (Roland White in London Times on chill to office banter), Jan. 25, 2000. 

“Harassment-law roundup” (bathroom graffiti; Boston bar owner’s insensitive decorations; pin-ups and porn in police station), May 4, 2000. 

“Book feature: ‘The Kinder, Gentler Military’“, April 3, 2000. 

“The shame of the ACLU” (Aguilar v. Avis: ACLU intervenes on anti- free-speech side), Sept. 7, 1999; “Speech police go after opinion articles, editorial cartoons“, August 28-29, 1999. 

“Harassment-law roundup” (Internet startups vulnerable), May 4, 2000; “Dot-coms as perfect defendants“, Jan. 17; “Harassment-law roundup” (Juno case), Feb. 19-21, 2000. 

“Oops! Didn’t mean nothing by that, ma’am” (”Hello, good looking” directed at harassment trainer), Dec. 21, 1999. 

“Suppression of conversation vs. improvement of conversation“, Nov. 12, 1999 (excerpts from Joan Kennedy Taylor book); “Risks of harm“, Nov. 13-14, 1999; “Harassment-law roundup” (Taylor book discussed), Feb. 19-21, 2000. 

“Courts actually begin to define ‘harassment’; activists in shock“, August 6, 1999. 

“Please — there are terminals present” (South Park on sexual harassment), July 30, 1999.
——————————————————————————–

Articles by Overlawyered.com editor Walter Olson:

“Title IX’s Invisible Ink” (Supreme Court invents right to sue schools over student-on-student harassment), Reason, August/September 1999. 

“A Legacy of Dirty Laundry” (brief contribution to symposium on harassment law), The Women’s Quarterly, Winter 1999. 

“Have the Harassment Rules Changed?“, Wall Street Journal, April 6, 1998 (judge’s dismissal of Paula Jones lawsuit). 

“Punch the Clock, Sue the Boss“, New York Times, March 20, 1998. 

“Shut Up, They Explained” (”zero-tolerance”), Reason, June 1997. 

“The Long Arm of Harassment Law“, New York Times, July 7, 1996. 

?When Sensitivity Training Is the Law? (Connecticut law requires training of managers), Wall Street Journal, January 20, 1993. 

In addition, The Excuse Factory (1997) includes two chapters on harassment law, namely chapter 4 (”Fear of Flirting”) and chapter 14 (”Workplace Cleansing”).  Neither is online. 

Other resources: Websites “Freedom of Speech vs. Workplace Harassment Law” (highly informative site maintained by Prof. Eugene Volokh, UCLA Law School)  Organizations Independent Women’s Forum Women’s Freedom Network iFeminists.com (individualist feminists, Wendy McElroy) Books The shelf of books critical of the overreach of harassment law got at least three important additions in 1999.  Daphne Patai of the University of Massachusetts, known already as a co-author of Professing Feminism: Cautionary Tales From the Strange World of Women’s Studies, published Heterophobia: Sexual Harassment and the Future of Feminism.  Cathy Young, columnist for the Detroit News, published Ceasefire: Why Women and Men Must Join Forces to Achieve True Equality.  And Joan Kennedy Taylor, associated with the Cato Institute, published What to Do When You Don’t Want to Call the Cops: Or a Non-Adversarial Approach to Sexual Harassment.  (Also see our editor’s 1997 contribution, The Excuse Factory.) 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