Articles Posted in Title IX

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 The answer also refers schools to various guidance documents that were previously rescinded, indicating they may be helpful to schools handling allegations of sexual harassment occurring before the effective date of the 2020 Final Rule.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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The Department of Justice (“DOJ”) recently filed a statement of interest in a Title IX case, co-signed by attorneys for the Department of Education. The case was filed against a university by several female students and former students who alleged they had been the victims of sexual misconduct by other students. The plaintiffs alleged the misconduct had been reported to the university.  Some alleged they were subject to peer retaliation or harassment after reporting, and some of those plaintiffs alleged the university failed to investigate the reported retaliation. The plaintiffs further claimed that the university’s deliberate indifference in its responses to the reports led to a hostile environment that deprived them of educational benefits.

In its motion to dismiss the plaintiff’s claims, the university cited Davis v. Monroe County Board of Education. According to the DOJ, the university misapplied the law of that case and others by confusing the standards for “post-assault” claims and “pre-assault claims.”

According to the statement of interest, the university argued that the plaintiffs’ claims did not meet the standards set forth in Davis and other Title IX cases. The DOJ argues that case law has distinguished post-assault claims from pre-assault claims and this case involved only post-assault claims.  According to the government’s statement of interest, to pursue a post-assault claim, the plaintiff must allege the university had actual knowledge of sexual harassment that was “severe, pervasive, and objectively offensive” to the extent that it prevents the plaintiff from accessing an educational opportunity. Additionally, the plaintiff must allege the university responded with deliberate indifference.  A response is deliberately indifferent if, as a result of the response, the plaintiff underwent additional harassment or became more vulnerable to additional harassment.

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In Executive Order 14021, President Biden stated a policy of guaranteeing students “an educational environment free from discrimination on the basis of sex. . .”  and instructed the Secretary of Education to review existing regulations and other policy documents within 100 days from the date of the order.  The executive order specifically identified the amendments to the Title IX regulations that took effect in August of 2020.

The Department of Education’s Office for Civil Rights (“OCR”) has recently provided some information on how it plans to proceed with that review. In a letter addressed to students, educators, and other stakeholders, OCR stated that it will be conducting a comprehensive review of the Department of Education’s regulations, orders, guidance, policies and other agency actions.  The letter also specifically identified the 2020 regulations as an item to be reviewed.

As part of the review, OCR will hold a virtual public hearing allowing both live and written comments.  The hearing will be held from June 7, 2021 to June 11, 2021.  In the hearing notice, OCR specifically requested comments related to the regulations related to sexual harassment and discrimination based on sexual orientation and gender identity. Due to the potential sensitive nature of the comments, there will not be a recording of the hearing, but a transcript will be posted on the OCR website.  The hearing notice also states that OCR will not share the personally identifiable information of commenter’s without first obtaining their consent.

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A federal court has dismissed a female plaintiff’s claims against a university in an unusual Title IX case.  According to the court’s opinion, a male student, “John Doe,” first alleged the plaintiff, “Jane Doe,” committed sexual assault against him.  The plaintiff subsequently alleged he had committed sexual assault against her.  Following an investigation and hearing addressing both complaints, the university found the plaintiff sexually assaulted John Doe by having sexual intercourse with him when he was too intoxicated to consent.  The university also found that John Doe committed sexual assault against the plaintiff when he choked her during the encounter and that he committed “Sexual Verbal Abuse.” Both students were suspended for a semester.

Jane Doe filed suit against the university, alleging in relevant part that the university’s disciplinary process violated Title IX and its decision was motivated by gender bias.  She argued procedural flaws and evidentiary weaknesses led to an erroneous result.  She further alleged that these procedural issues were motivated by her gender. The plaintiff also alleged several other claims, including breach of contract and negligence.

The court noted that, as a private university, the defendant did not have the same due process requirements as a public institution.

When a plaintiff alleges discrimination based on erroneous outcome, she must allege facts that raise an “articulable doubt” on the outcome’s accuracy as well “circumstances suggesting that gender bias was a motivating factor” in that outcome.  Articulable doubt can be shown through procedural flaws, “inconsistencies or errors in the findings,” or insufficiency or unreliability of the evidence.  To show gender bias, the plaintiff must show that she was wrongfully found guilty at least partly due to her gender.

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President Biden issued an executive order requiring the review of regulations, guidance and other documents related to Title IX investigations.  The order proclaims a policy of the administration that students be guaranteed freedom from sex-based discrimination, including sexual harassment, in the educational environment.

The executive order requires the Secretary of Education and the Attorney General to review all current regulations and other agency actions within 100 days from order’s date, March 8, 2021.  Upon completion of the review for consistency with the policy stated in the order, the Secretary must report the findings to the Office of Management and Budget Director.  The order specifically requires the Secretary to review the Final Rule published on May 19, 2020, and all agency actions taken under it for consistency with the policy stated in the order, Title IX, and other applicable law.  The order further requires the Secretary to review any current guidance and issue any needed new guidance regarding implementing the Final Rule to be consistent with the law and the policy stated in the order, “[a]s soon as practicable.”  The order also directs the Secretary to consider “suspending, revising, or rescinding” agency actions that are not consistent with the policy as soon as practicable.

The order directs the Secretary to consider actions to enforce the policy and legal prohibitions against sexual harassment to the extent allowed by law.   The order further instructs the Secretary to consider enforcement actions accounting for intersectionality.  Finally, the order instructs the Secretary to consider actions to ensure “fair and equitable” procedures in schools.

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Allegations of Title IX violations against a student in Washington can have complicated investigations. According to an article from the Associated Press, a professional football player recently filed a Title IX suit against the university he previously attended arising from an investigation and disciplinary action.

According to the plaintiff’s complaint in a previous lawsuit against the university, he was subject to simultaneous university and criminal investigations. In his complaint, he argued that the simultaneous investigations required him to choose between his right against self-incrimination and participating in the Title IX process. The complaint also alleged the plaintiff’s attorney notified the university’s Title IX Coordinator that the police department had exculpatory information that was critical to the Title IX investigation.  The plaintiff alleged that, after the criminal charges were filed, his attorney asked to postpone his interview with the Title IX Coordinator until after the criminal matter was resolved. The complaint stated the university responded that it had not been able to obtain information from the district attorney’s office prior to resolution of the criminal proceedings and would not delay the conclusion of the Title IX process.  The university’s Title IX Coordinator ultimately issued a final report. In his first lawsuit, the plaintiff sought damages and a stay on the disciplinary proceedings until the criminal matter was resolved. The plaintiff voluntarily dismissed that lawsuit in March 2019, but according to news reports, his attorneys expressed an intention to refile after the criminal case concluded.

According to news reports, the plaintiff was suspended from the football team in August of 2018 and subsequently expelled from the university. A jury acquitted him of the criminal charges in August 2019. He was reinstated to the university in August and was subsequently allowed to play football. In a statement about the reinstatement posted on its website, the university stated that it “obtained information following the criminal proceeding that was not provided to the university during the student conduct process.”

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Allegations of Title IX violations against a student in Washington can have far-reaching consequences.  As an example, in a recent case, a male student sought to enjoin his medical school from enforcing an expulsion for allegedly misrepresenting the results of a Title IX allegation in an application to the university’s business school.

Following a breakup, “Jane Roe” reported two occurrences of physical violence by her former boyfriend and fellow medical student “John Doe” to the medical school. The school began an investigation soon afterward. The investigator met with the plaintiff four times, and Roe twice.  The plaintiff and Roe were given access to review the Preliminary report in March.  The plaintiff provided a timely response.

In May, the plaintiff attended a hearing with his attorney.  He was allowed to give opening and closing statements, answer questions, and have questions asked of all witnesses, either directly or through the panel chair.

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Title IX law is currently in a state of flux.  New regulations went into effect in 2020 significantly increasing due process protections for students accused of Title IX violations. The president-elect, however, has reportedly expressed an intention to change those regulations. Courts have also played a part in the changes occurring with Title IX.  One issue that has recently been the focus of several cases is the pleading standard of Title IX discipline cases. Some courts have required allegations of Title IX violation in a disciplinary process to meet specific doctrinal tests.  Several circuit courts have recently broken from this requirement and applied a broader pleading standard, resulting in a circuit split.

In a recent case, a plaintiff sought reconsideration of the dismissal of his Title IX claims following a Third Circuit opinion that he argued changed the law. A male student, identified as “John Doe,” filed suit against the university in the District of New Jersey, making both an “erroneous outcome” claim and a “selective enforcement” claim under Title IX, as well as several state law claims.

The District Court had previously dismissed his Title IX claims.  The plaintiff moved for reconsideration based on a recent Third Circuit decision in similar case, Doe v. University of the Sciences.  The plaintiff argued the Third Circuit decision constituted an “intervening change in the controlling law” that justified reconsideration.

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Although the preamble to the new Title IX regulations states the regulations do not apply retroactively, a Temporary Restraining Order issued by a New York federal court recently raised questions about retroactive application. The court has recently rendered a much more detailed opinion on the issue of a preliminary injunction in the Title IX discrimination case.

According to the court’s opinion, the plaintiff had a consensual sexual relationship with a female student, identified as “Jane Roe.” She invited him to her dorm room to discuss an incident where she allegedly caught him recording her getting dressed.  The plaintiff alleged he had to walk to her room because he was too drunk to drive.  He continued to drink after he arrived.  The two had consensual sex, and then each filed Title IX complaints against the other for the events that followed.

Roe alleged that they argued and the plaintiff put his hand around her neck and squeezed.  She also alleged he engaged in sexual activity without her consent.

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