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Winning the Battle but Losing the War: Student Wins on Contractual Grounds but Court Denies Title IX Claim

A nursing student who was mistreated by her school won $1.7 million in damages in a lawsuit against the school. But this win feels like a loss in many ways for Title IX advocates.

Not only did the court reject the student’s efforts to assert her Title IX rights, but they may also have established a dangerous precedent allowing schools to continue with discriminatory behavior that violates both the letter and the spirit of Title IX.

How Not to Treat Students

Based on the reported facts, the school’s conduct in this case should serve as a model of how not to treat students. Nicole Gililland started a nursing program at Southwestern Oregon Community College (SWOCC) in the fall of 2017. All apparently went well with her academic career until instructors learned about some of her previous employment.

Nicole had worked in the “adult film industry.” Various accounts describe her as an “actress,” “model,” “sex worker” and “porn star.”

Once word of this activity came to light, she found herself subject to what she described in her lawsuit as “unduly harsh discipline inconsistent with SWOCC policy.” She alleged that instructors shortened deadlines, gave her added assignments, changed her grades, and singled her out for punishment for conduct that was ignored when committed by other students. 

Even worse, she alleged that instructors harassed her because of her background. According to the initial court’s recitation of the facts, one teacher pointed toward her and said, “[i]t takes a classy woman to be a nurse, and unclassy women shouldn’t be nurses.” She was dismissed from the competitive program because her grades were not high enough, and she filed a lawsuit seeking relief for discrimination and breach of contract.

The Student Scores a Partial Win

The college and other defendants in the case tried to get the court to rule as a matter of law that the student’s claims lacked legal merit. Among other things, they argued that the student’s employment history was not protected from discrimination by Title IX and there was not enough evidence to support a showing that the school discriminated against her or breached any form of their contract.

The judge overruled these assertions and allowed the claims to proceed to trial. A jury later awarded the student $1.7 million on the grounds that the nursing school breached its duties under the contract to provide an education in exchange for tuition. However, the jury found that the school had not discriminated against the student in violation of Title IX.

What the Court Concluded About Title IX Claims

The initial court found that the student offered enough evidence to support a claim of sex discrimination based on gender stereotypes. The judge dismissed the school’s assertions that employment history was not a protected factor in a Title IX case. Instead, the judge looked at the comment about “unclassy women,” noting that the statement “advanced a stereotype about the kind of woman appropriate for the nursing profession.” He explained that a jury could find that the instructor perceived the student as unfit based on a sex-based stereotype and that this constituted illegal discrimination. This conclusion led the judge to deny the school’s motion for summary judgment on the issue.

However, when the case went to full trial later, the jury found that the college had not discriminated against the student by any of the following:

  • Selectively enforcing university standards
  • Being deliberately indifferent to harassment against the student
  • Retaliating against the student

That meant they could not award damages for any claims based on Title IX harassment, retaliation, or other forms of discrimination. However, they found the student had suffered a loss of over $700,000 in economic damages and $1 million in non-economic damages.  

Troubling Results

Gililland said on social media after the verdict that “hundreds” of attorneys had “slammed the door” on her case before she found a lawyer willing to fight for her claim. This is despite having what some would argue to be clear evidence of sex-based discrimination. Her treatment is discouraging to students subjected to harassing statements and disparate conduct because of gender stereotypes.

In fact, one argument the school put forth is that the Title IX protections against gender stereotype discrimination only apply to LGBTQ students. The judge found that this reasoning would prevent heterosexual or cisgender individuals from being able to file claims based on gender-stereotype issues and that nothing in either the statute or caselaw supported this interpretation. Nevertheless, the fact that the school relied on this argument in court shows that it reflects some institutional mentality on the subject.

School Conduct

Throughout the case, the school’s conduct also provides grounds for concern. For example, the instructor’s statement about “unclassy women” came when the student asked the instructor why she was taking action against her. In this case, it was hitting the student with a penalty that it hadn’t imposed on other students in similar situations.

The student met with the school’s Title IX coordinator to ask why she was being “singled out” regarding various penalties, including treatment for an improper source citation that an instructor deemed to be plagiarism. She emailed school officials about treatment by certain instructors, indicating that she had an attorney and was prepared to file a lawsuit but would drop the matter if they would agree to “stop harassing [her] and just treat [her] fairly.”

She filed a formal complaint with administrators at the school. There is no evidence that the school investigated her Title IX complaint. All school investigations appeared to be connected with allegations of plagiarism by students in the program.

Money Will Not Make the Title IX Issue Go Away

The student did not appeal the ruling against Title IX discrimination. She had no immediate need to since she received vindication through the breach of contract claim.

However, she is now enrolled in law school with hopes of being able to advocate on behalf of sex workers. It will be interesting to see whether she will be able to use Title IX protections to address harassment in the future or whether she will again need to resort to other areas of law to find justice.

The Right Title IX Lawyer Can Help Protect Your Interests

It is hard to know how the Title IX issue would have fared in front of a jury if the attorney had posed different arguments or the judge had framed questions differently. One key takeaway from this case is that students who face illegal harassment based on gender stereotypes need to stand up for their rights to protect their interests.

The team at Duffy Law is dedicated to promoting the ideals of Title IX protection and fighting for fair treatment for complainants and respondents in Title IX cases. If you have Title IX concerns for yourself or a member of your family, we invite you to contact us for a confidential consultation.

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.