Articles Posted in Title IX

The U.S. Department of Education released a new proposed Title IX rule for public comment on the 50^th anniversary of Title IX.  This proposed rule has been highly anticipated, and as expected, reverses some of the changes made in 2020.

The proposed rule broadens the scope and application of the Title IX regulations.  It states the scope of Title IX is “[d]iscrimination on the basis of sex. . .” Sex-based discrimination under the proposed rule expressly includes discrimination based on gender identity, sexual orientation, sex characteristics, sex stereotypes, and pregnancy or related conditions. Likewise, the proposed rule includes discrimination on those bases within the definition of “sex-based harassment.” The proposed rule places unwelcome conduct harassment under a hostile environment framework. The definition of “hostile environment” requires the unwelcome conduct to be “sufficiently severe or pervasive” to either deny or limit the person’s ability to participate in or benefit from the education program or activity.  The proposed rule further expands the application of Title IX by placing an obligation on schools to address a sex-based hostile environment under the school’s education program or activity even if the harassment occurred outside the education program or activity or outside the U.S.

The proposed regulations also expand the school’s ability to use an informal resolution process to include situations where a formal complaint has not been filed.

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A preliminary injunction can prevent a university from implementing Title IX sanctions against a student while a lawsuit is pending.  To obtain a preliminary injunction, the plaintiff must meet certain criteria, including showing a likelihood of success on the merits, a lack of adequate remedy at law, and a likelihood of irreparable harm without an injunction. A student, identified in the court’s order as John Doe, recently sought a preliminary injunction in a Title IX case in an Indiana federal court.

According to the court’s order, on the night of November 13, 2020, John hung out with another student, identified as Jane Roe, and some other friends in the common room of Jane’s suite.  John claimed he went back to his own place, but Jane messaged him asking him to come back at 2:00 a.m.

Jane later alleged John got into her bed and touched her sexually without her consent.  John agreed he had helped her into bed, but said he then went back to the common room with the others and denied getting into her bed or touching her.  He said Jane later got up and came back to the common room.

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Suspension or expulsion after a finding of sexual misconduct in a Title IX investigation can permanently affect a person’s professional opportunities and future.  In some cases, students have been successful in enjoining the school from enforcing such disciplinary action pending a lawsuit, but a New Hampshire federal court recently denied a plaintiff’s motion for a preliminary injunction.

According to the court order, the plaintiff and his roommate were fourth-year medical students when the incident occurred.  On July 11, 2020, they both fell asleep on the sofa watching a movie after eating and drinking together. According to both men, the plaintiff performed oral sex on the roommate, but the events leading up to that act were in dispute.  The roommate alleged that he woke up with his underwear down and the plaintiff caressing him.  The plaintiff alleged that he was “blacked out” and the roommate woke him up with his genitals exposed.  Neither party filed a complaint immediately after the incident.

Soon after the incident, the plaintiff decided to take an unrelated leave of absence from school.

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In 2020, the Department of Education published a Final Rule revising the regulations implementing Title IX of the Education Amendments of 1972 .The 2020 Final Rule prohibits a school from imposing disciplinary actions or other actions other than supportive measures against a respondent to a Title IX complaint before following the grievance process.  34 CFR § 106.45(b)(1)(i).

Supportive measures are non-disciplinary and non-punitive services, designed to preserve or restore equal access to the school’s programs or activities without unreasonably burdening the other party. 34 CFR § 106.30. The preamble to the Final Rule states that determining whether a particular action is unreasonably burdensome is fact specific.  The preamble clarifies that housing and schedule adjustments are not automatically unreasonable burdens on the respondent.  Consideration of whether a burden is unreasonable is not limited to access to academic programs.  Instead, schools must consider whether the respondent’s “access to the array of educational opportunities and benefits” the school offered is unreasonably burdened.  The preamble specifically notes that a schedule adjustment may be considered a reasonable burden more often than a restriction on participating in sports or extracurricular activity.

A school’s grievance process must either list or describe the range of disciplinary actions that may be imposed on a respondent if he or she is found responsible.  The preamble clarifies that in listing a particular action, the school is identifying it as disciplinary and it therefore cannot be a “supportive measure.” According to the preamble, if a school lists sports ineligibility as a potential disciplinary sanction in its grievance process, then it cannot implement sports ineligibility as a supportive measure before following the grievance process. If the school does not list it as a potential sanction, then it may use sports ineligibility as a supportive measure only if it is not used as a disciplinary or punitive action and does not unreasonably burden the respondent.

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In considering a motion for preliminary injunctive relief, the court must take into account the likelihood of success on the merits, the potential for irreparable harm, a balance of the hardships, and the public interest.  Injunctions can therefore be difficult to obtain because the court is heavily focused on how likely the moving party is to win their case.

A student recently obtained a preliminary injunction enjoining his university from implementing a preliminary suspension.  The plaintiff was a senior and student athlete at a Rhode Island university when a Title IX complaint was filed against him alleging sexual assault.  A “Threat Assessment Team” (the “team”) recommended interim suspension because of “the egregious nature of the alleged behavior.”

The plaintiff appealed the interim suspension. He was allowed to finish the semester remotely and the issue of suspension was remanded to the team to reconsider based on his response to the complaint.  The result was that the plaintiff was to be suspended on January 7, 2022, pending completion of the Title IX process.

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A plaintiff alleging a Title IX claim against a school must sufficiently state a claim to avoid the case being dismissed.  However, in the early stages of a lawsuit, a plaintiff alleging his school discriminated against him in its Title IX investigation and disciplinary proceedings may not be aware of many of the facts that could help him prove his case.  The Ninth Circuit has recently held that, to survive a motion to dismiss, such a plaintiff need only allege facts that would give rise to a plausible inference that the school discriminated against him based on sex.

Because the Ninth Circuit was reviewing a motion to dismiss, it took the well-pleaded facts as true and viewed them in the light most favorable to the plaintiff.  According to the opinion, the plaintiff was  pursuing a doctorate.  In 2014, he began dating a student, referred to as “Jane Roe.”

In February 2017, the plaintiff ended the relationship after learning Roe had not been faithful. Although Roe was no longer a student, the two planned to meet on February 13 after the plaintiff’s class to return each other’s property.  Instead, she appeared at the plaintiff’s office before his class, pounding on the door.  The plaintiff did not let her in.  He told Roe he had to go, but she tried to block the door.  He ultimately got past her, but she followed and tried to keep him from going into the classroom.

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A Washington Title IX investigation can have lasting and serious effects on an accused student.  A Washington appeals court recently concluded that the names of students found responsible for a crime of violence or a nonforcible sexual offense in disciplinary proceedings at a public university are subject to disclosure under the Washington Public Records Act (“PRA”).

According to the appeals court’s opinion, journalists submitted a public records request to a university  seeking results of disciplinary proceedings with findings that “a student was responsible for a crime of violence or nonforcible sexual offense in the last five years.” The university provided tables of the offenses, each including the disciplinary action taken, but with the students’ names redacted.  The university also provided an exemption log which identified the student’s names as exempt from disclosure under RCW 42.56.230(1).

The journalists sued the university to get the students’ names.  The university subsequently concluded the names were not exempt and notified the involved students it intended to disclose their names.  Seven students sought injunctive relief.  The trial court denied the injunctions, finding the students failed to show their names were exempt.

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Because Title IX cases may involve allegations of sexual harassment or sexual assault, Title IX plaintiffs often want to maintain anonymity. Courts commonly allow Title IX plaintiffs, both alleged victims and those who have been accused of sexual misconduct, to proceed under a pseudonym. Recently, however, some courts have denied male plaintiff’s requests to do so.

In one recent case in Colorado, the plaintiff asked to be allowed to file a complaint under a pseudonym in February. The court originally granted that motion, finding the plaintiff had alleged a significant privacy interest.  The court noted that the defendants could still object to the use of a pseudonym or the judge could revisit the issue later in the case.

The defendants moved to require the plaintiff to proceed under his true name, arguing the case did not involve highly personal and sensitive matters and that the interests of the defendants and the public interest’s weighed against allowing him to proceed with a pseudonym.

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Students involved in a Washington Title IX case often wish to remain anonymous.  Title IX lawsuits are often brought under pseudonyms such as “John Doe” or “Jane Doe.” In some cases, however, a court may not allow a plaintiff to proceed with the lawsuit anonymously.

A Michigan federal court has reportedly dismissed a student’s Title IX case against his university because it was filed anonymously.  According to the court, the university suspended the plaintiff from its football team after he was accused of sexual assault by another student.  He sued the university, alleging it violated his Title IX rights.

The plaintiff filed the suit as “John Doe” and sought the court’s permission to proceed anonymously.

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A suspension or other sanctions imposed by a university as the result of a Title IX accusation can have severe consequences for the accused student.  In some cases, it may be possible to prevent such sanctions, or at least delay them. An Indiana court recently issued a temporary restraining order against a university restraining it from suspending a male student or imposing other sanctions or restrictions against him following a Title IX complaint and investigation.

In his complaint, the plaintiff alleged a large number of procedural errors in the university’s handling of a Title IX complaint against him, including violations of Title IX regulations and the university’s own policies and procedures.  His complaint included allegations of issues in the investigation, hearing, and the appeal process. He alleged the university did not disclose the details of the complaint against him or produce copies of certain evidence. The plaintiff also alleged the university hired individuals from an outside company with a conflict of interest to act as decision-makers, while the university’s policy defined “Decision-Makers” as “members of the three-person panel of trained faculty, staff, and/or administrative officials . . . .”

The plaintiff also alleged the complainant was allowed to testify at the hearing about alleged sexual assaults by the plaintiff against others, alleged rape by the plaintiff, and alleged nonconsensual sexual interactions between the plaintiff and others. The plaintiff alleged the decision-makers did not stop the irrelevant testimony and in fact the Hearing Officer asked questions related to those topics.  The plaintiff alleged the Hearing Officer asked questions that were prohibited by the university’s policy and applicable regulations. The plaintiff also alleged the hearing Officer relied on the complainant’s and her roommate’s testimony about photos that were not in evidence.  His lawsuit also identified numerous alleged issues with how the university processed his appeal.

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