*The views expressed in this article do not represent the views of Santa Clara University.
Background to Title IX Legislation
Title IX provides in part that:
“[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…”
The implementation of Title IX highlights a modern day example of the Legislative Branch interpreting and applying the Equal Protection Clause of the Fourteenth Amendment. In short, the legislation seeks to provide protections to individuals who may otherwise be discriminated against on the basis of sex within institutional programs, such as athletics. Interpreting the scope of Title IX, the United States Supreme Court could not find a substantive difference between aid received institutionally versus through its students, although at that time the legislation initially only applied to the particular “program or activity” receiving Federal financial assistance. Grove City College v. Bell (1983). This narrow application of Title IX would change in 1988.
The definition of “program or activity” was expanded to encompass
“‘all operations’ of an institution whenever federal financial assistance is extended to ‘any part’ of the institution.”
www.uscourts.gov. This definition came as a result of the Civil Rights Restoration Act of 1988, which extends to not only Title IX, but all other civil rights laws as well. Id. Concerned that it expanded the federal government’s power over private institutions too severely, President Reagan vetoed the act. Id. It was eventually codified when the Senate reached a two-thirds majority vote, overriding the President’s veto. Id. Title IX extends to all aspects of an institution receiving Federal financial assistance, but there are some exempt institutions. Id. Exempt organizations are typically rooted in a specific sense of community, rather than a discrimination of another sex.
Modern instances of Title IX violations often involve the mistreatment and abuse of athletes in women’s sports at institutions across the country. Oftentimes, such as in the case discussed below, the violations carry on for years before ever being uncovered. It is important to understand that enforcement of Title IX is absolutely necessary to encourage victims to come forward with their stories. Victims are often fearful to come forward due to the fact that the perpetrators are in positions of power. While Title IX obligates universities to ensure sexual violence does not push a victim out of school, less than ten percent (10%) of victims report the incident.
In late March of this year, lawyers filed a federal class action lawsuit against San Jose State University alleging sex abuse by the university’s former head athletic trainer and director of sports medicine, Scott Shaw. The allegations stem from early March, when the Department of Justice (DOJ) charged Shaw with civil rights violations after engaging in sexual misconduct with female student-athletes who were under the impression that he was treating their injuries. Id. These charges allege that "between 2017 and 2020, Shaw violated the rights of four students who played on women’s athletics teams by touching their breasts and buttocks without their consent or a legitimate purpose." Id. Being that Shaw was a state employee for the California State University system, "he is further alleged to have acted under color of state law when he assaulted the victims." Id.
Shaw has since pleaded not guilty to six counts of violating the civil rights of female athletes who say they were abused while under his care. Id. If convicted of all counts, Shaw faces a maximum of six years in prison. Id. The late March filing of a class action expands the pool of victims to equal approximately 1000 female students who were all exposed to Shaw from 2009 to the present. Id. The DOJ states that San Jose State University failed to respond to the athletes’ claims of repeated harassment and "ignored clear signs that they were at-risk." Id. The power behind the move of filing a class action is to hold institutions like SJSU accountable. Id.
The whistleblower behind this, women’s swimming and diving coach, Sage Hopkins says that the most important thing is the healing of the affected student athletes, and holding those accountable who enabled his actions is an important step to getting there. Id.
Litigation
In September 2021, the DOJ entered a judgment finding violations of Title IX rules by San Jose State University and ordered them to pay $1.6 million to the ten former athletes who showed proof of harassment by Scott Shaw. However, multiple civil litigation cases against San Jose State University for Title IV violations are still pending. The attorneys for the athletes have now filed a class action pursuant to California Code of Civil Procedure Rule 382 against the University seeking damages for violations under 20 U.S.C §1681(a), 42 U.S.C. §1983, negligence, Education Code §220, C.C. §51.9, intentional infliction of emotional distress, C.C §52.4, sexual battery and sexual assault.
On March 18, 2022, the plaintiffs filed the class action suit pending the initial status conference on October 6, 2022, in the department of Complex Civil Litigation. This case remains in the pleading stages and the defendant has not entered an answer. However, attorneys for the defendant filed a joint case management conference statement where they highlighted their intent to file a demurrer and a motion to strike the first amended complaint due to the statute of limitations. The attorneys for the defendant point out that some of the injuries suffered by the class occurred over a decade ago. Therefore, the plaintiffs would have to show that the claims did not begin to accrue until a time within the limitations period. If the plaintiffs are successful, they would then need to file a motion for class certification in order to proceed with litigation.
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