Articles Posted in Title IX

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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The Department of Education (“Department”) Office of Civil Rights (“OCR”) recently issued a Questions and Answers document providing guidance on Title IX sexual harassment regulations. In addition to a number of questions and answers about the regulations, the 67-page document provides examples of Title IX procedures for elementary schools, high schools, colleges, and universities.  The document makes clear that the 2020 regulations remain in place for now, but provides some insight into how the current administration may interpret those regulations until it implements its own amendments.

Applicability

Answer 13 makes clear that the 2020 amendments are not retroactive and schools should apply the Title IX requirements in place when the alleged incident occurred, regardless of when the school responded. The answer also refers schools to various guidance documents that were previously rescinded, indicating they may be helpful to schools handling allegations of sexual harassment occurring before the effective date of the 2020 Final Rule.

Actions Beyond the Regulations

Question 2 addresses whether a school may take steps beyond those set forth in the 2020 Final Rule. The answer provides that the school may take additional actions that do not conflict with Title IX or the regulations.  Question 7 and its answer also address alleged sexual misconduct that does not meet the regulations’ definition of sexual harassment. The answer clarifies that the school may respond to reported sexual misconduct that occurs outside the United States or outside the education program or activity.  Schools may take action against sexual misconduct that does not fit the definition of sexual harassment. The answer clarifies OCR’s position that Title IX does not prevent a school from addressing misconduct that does not meet the definition of sexual harassment by enforcing its code of conduct.

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On May 19, 2020, the Department of Education (“DOE”) published a Final Rule significantly amending the regulations that implement Title IX. The Final Rule changed the requirements for how schools handle Title IX complaints and investigations.  Four victims’ advocacy groups and three individual plaintiffs filed suit in a federal court in Massachusetts to challenge the Final Rule. The plaintiffs argued in part that portions of the Final Rule were arbitrary and capricious.

In some circumstances, an agency is required to give a detailed explanation when it has a change in policy. An agency must provide a detailed justification for a change in policy that is based on factual findings that contradict the factual findings upon which the previous policy was based.  Additionally, the agency must give a detailed justification if there were “serious reliance interests” on the prior policy. The agency then must weigh those reliance interests against the policy concerns.

The court noted that most of the plaintiffs’ arguments that the Final Rule was arbitrary and capricious were really policy arguments.  The DOE had explained why the provisions supported its goal, why it wrote them the way it did, and why it rejected a number of alternatives.  It also addressed commenters’ concerns.

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