Articles Posted in Title IX

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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The Family Educational Rights and Privacy Act (“FERPA”) protects the privacy of “education records.” FERPA does, however, allow a college or university to disclose to the alleged victim the final results of a disciplinary proceeding related to a crime of violence or a nonforcible sex offense.  FERPA further states that it does not prohibit the disclosure of the final results of such a disciplinary proceeding if the institution finds the student violated its rules or policies with respect to the crime or offense, but the disclosure may generally only include only the student’s name and violation.  20 U.S.C. § 1232g(b)(6).  These provisions of FERPA generally apply to any postsecondary educational institution that receives federal funds, but when the institution is public, it must also comply with state public records laws.

In a recent case, news organizations sued certain officials of a North Carolina University (the “University”) for alleged violations of North Carolina’s Public Records Act. The plaintiffs requested copies of records related to “a person having been found responsible for rape, sexual assault or any related or lesser included sexual misconduct. . .”  The University denied the request on the grounds the records were protected by FERPA.

The plaintiffs changed the request to include only the names of students found responsible, the nature and date of the violations, and the imposed sanctions.  The University again denied the request.

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Colleges and universities have experienced pressure from multiple sources to address sexual assault issues. Unfortunately, in some cases, they have responded in ways that deny a fair process to the accused student.  A recent case shows that a university’s actions in response to such pressure may support a Title IX claim by an accused male student. If you face Title IX charges, the Seattle defense attorneys at our firm can help you fight for your rights.

A male student challenged the dismissal of his Title IX suit arising from the university’s handling of a sexual assault complaint against him.  Because the appeal was from a motion to dismiss, the facts considered by the Eighth Circuit were those alleged in the plaintiff’s complaint.

A female student, referred to as “Jane Roe,” accused the plaintiff of sexual assault during his senior year.  Following a Title IX investigation, the university’s Title IX Coordinator concluded the evidence did not show the plaintiff had violated university policy.  He found sexual contact had occurred, but there was insufficient evidence to show Roe was incapacitated due to intoxication.

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A federal court has denied a preliminary injunction to stop or delay the implementation of the new Title IX regulations.  The court found the plaintiffs had not established that they are likely to succeed on their claims or to suffer substantial irreparable harm.

The plaintiffs argued the K-12 grievance process exceeded the Department’s authority and is arbitrary and capricious.  The court noted that the Final Rule’s requirements may not be the best way to handle Title IX in K-12 schools, but did not find that the plaintiffs would be likely to show it was arbitrary and capricious.  The Final Rule includes different requirements for K-12 than for post-secondary schools.  The court could not substitute its own judgment for the Department’s when the Department had considered the data and there was “a rational connection between the facts found and the choice made.”

The plaintiffs also argued the Department exceeded its authority by penalizing schools for investigating or punishing conduct that did not fit within the Final Rule’s definition of sexual harassment as Title IX violations.  The court found they had “not squarely presented this argument.” The court also noted that the challenged portions of the Final Rule seemed to be rooted in the authority the Department was granted by Title IX.  Finally, the Department indicated that it did not intend to withhold funding from a school for mischaracterizing a disciplinary proceeding as a Title IX proceeding, but would instead seek to clarify the nature of the proceeding for the parties.  The plaintiffs therefore had not shown that they were likely to succeed on their claim the Department exceeded its authority by penalizing schools that took a broader view of sexual harassment generally, or even in the specific case of the mandatory dismissal of complaints alleging harassment that did not meet the Title IX definition.

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The new Title IX regulations will afford students accused of sexual harassment or sexual misconduct some due process protections.  Those regulations are being challenged, and even when they take effect, schools may not fully follow them. Students in Washington State who are not aware of their rights may waive them or even be pressured into waiving them.

In a recent unpublished case, the Sixth Circuit held that an accused student had waived his due process rights.  Following an investigation for alleged sexual misconduct, the school’s policy allowed for two options for resolution, an administrative hearing or a board hearing.  The administrative hearing was a more informal process in which an adjudicator met with each party separately.  The adjudicator would then determine culpability and any punishment based on those meetings and the investigatory materials.  The administrative hearing process did not provide for the parties to present evidence or cross-examine witnesses.  The more formal board hearing involved an actual hearing before a three member panel, where witnesses could testify and a type of cross-examination.  Both parties would be allowed to question witnesses and submit questions that they wanted to ask each other to the panel.  The panel would then determine culpability and punishment, if appropriate.

In this case, both parties indicated in their signed statements that they preferred an administrative hearing.  The University therefore moved forward with an administrative hearing.  The hearing officer found the plaintiff was “responsible for non-consensual sexual intercourse under the university sexual misconduct policy” and ordered a two year suspension.  The hearing officer also barred the plaintiff from campus during his suspension and from living in University housing after the suspension.

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After much anticipation, the Department of Education (the Department) has finally released its final rule addressing how schools receiving federal financial assistance must respond to sexual harassment allegations.  The Department has expressed an intention to provide a fair process to both complainants and respondents.  These regulations put in place requirements that will help ensure the protection of the due process rights of students who are accused of misconduct.

The new regulations define sexual harassment to include sexual assault, dating violence, domestic violence, and stalking.  The regulations apply the Davis definition to unwelcome conduct sexual harassment.  The conduct must be severe, pervasive, and objectively offensive.

The regulations set forth procedural requirements around the grievance and investigation process.  Title IX personnel may not have conflicts of interests or bias against either party generally or personally.  They must also be trained on the investigation and grievance process, including how to serve impartially and avoid bias.  The respondent is entitled to a presumption he or she is not responsible for the alleged conduct until a determination has been made.  Upon receiving a formal complaint, the school must provide all known parties with written notice of its grievance process and the notice of allegations with enough detail to allow them for the initial interview.  The notice must inform the parties of their right to have an advisor of their choice.  The school must provide notice of any additional allegations it decides to investigate.

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