Seattle Attorneys Blog

Coaches and School Officials Reportedly Criticize Title IX Due Process Rule

March 30, 2022 | by Blair & Kim, PLLC

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.

Washington Court Must Enter Written Findings with Contempt Order

March 23, 2022 | by Blair & Kim, PLLC

When a court enters certain types of Washington protection orders, it must also require the surrender of firearms and other weapons upon a proper showing that the respond used, displayed, or threatened to use a firearm or other dangerous weapon in a felony or that the respondent is not eligible to possess a firearm pursuant to RCW 9.41.040. RCW 9.41.800. An ex-husband recently challenged a court’s order of contempt for failure to surrender his weapons.

His ex-wife petitioned for a domestic violence protection order (“DVPO”) against him, alleging multiple instances of abuse. She stated he put a laser on his gun and pointed the laser at her forehead, telling her that was “where the bullet is going to land.” In another incident, she stated he told her he would kill her if she left while holding a gun to her head. She attached a photo of a firearm and another of the ex-husband with a firearm.

The court issued a temporary DVPO and an order to surrender weapons on November 20, 2020.

Washington Arson Convictions Reversed Due to Admission of Hearsay Evidence

March 16, 2022 | by Blair & Kim, PLLC

Generally, hearsay is excluded from evidence, though there are some exceptions. Hearsay is a statement made outside court and offered into evidence to prove the truth of the matter asserted. ER 801. If, however, the prosecution in a Washington criminal case wants to present an out-of-court statement for a purpose other than its truth, the court must consider whether that purpose is relevant. If the purpose is not relevant, the statement should be excluded.

A defendant recently challenged his convictions after the trial court admitted a statement from dispatch over his objection. According to the appeals court’s opinion, officers responded to a call from a father who reported being involved in an argument with his son, the defendant. The caller said his son had put gasoline into two paper cups. When the officers arrived at the gas station, they could not find either the father or the defendant. One officer drove toward the father’s house. He saw the defendant walking along the road with a grocery bag.

The officer called out to the defendant by name over the car’s speaker and the defendant lay on the ground. When the other officer arrived, the defendant was sitting on the ground. The bag in his hand was leaking something that smelled like gas. He asked if he was free to go. When the officers told him he was, he started walking toward his father’s home.

Community Expenses Paid with Separate Assets in Washington Divorce

March 8, 2022 | by Blair & Kim, PLLC

In a Washington divorce, inheritance will generally be considered separate property. What happens, though, when a spouse uses separate property to pay off the debt on a community asset? A Washington appeals court recently considered this issue.

According to the unpublished opinion, the wife bought a home in California while the parties were dating. The husband moved in with her a couple of months later. After they married in 2002, they formed a trust with the two of them as co-trustees. The trust stated that all property held in joint tenancy was their community property. The wife signed a quitclaim deed conveying the house to the two of them as trustees as community property. In 2013, they executed another quitclaim deed as trustees, this time transferring the property to the two of them as spouses “as joint tenants with rights of survivorship.”

They lived in the house together for 14 years and refinanced it at least three times. They both paid on the mortgage, but the wife ultimately paid it off in 2015 using funds she received from an inheritance. They sold the house in 2016. They then moved to Washington.

Court Grants Injunction Prohibiting Preliminary Suspension Pending Title IX Investigation

February 28, 2022 | by Blair & Kim, PLLC

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.

Court Should Apply Market Value in Washington Theft Cases

February 25, 2022 | by Blair & Kim, PLLC

The value of property can affect the degree and seriousness of a Washington theft crime. In a recent unpublished case, a juvenile challenged his second degree theft conviction, arguing the trial court had used the wrong methodology for determining the value of the property.

A deputy testified he met with the juvenile and his mother after responding to a call reporting a possible theft. The deputy testified the juvenile admitted he had taken a ring out of his mother’s jewelry box.

A jeweler testified that the replacement cost of the ring was $1,200, based on making a new ring. The jeweler also testified that used jewelry did not get the same price as new and that the ring might be sold to a jeweler for $340. A dealer might be able to sell it then for $600 or $700.

Animal Cruelty May Be Designated Crime of Domestic Violence in Washington

February 20, 2022 | by Blair & Kim, PLLC

When a Washington crime is designated a crime of domestic violence, the alleged victim is afforded certain additional protections. Such cases get priority scheduling. Courts may issue pre-trial no-contact orders and specialized no-contact orders at sentencing. A defendant recently challenged the domestic violence designation and aggravators applied to his animal cruelty conviction.

According to the Washington Supreme Court’s opinion, the defendant had been abusive to both his girlfriend and her dog. After taking the dog for a walk over his girlfriend’s objection, he called her and told her the dog had escaped the harness. His girlfriend could hear the dog yelping and did not think she had escaped.

Two witnesses heard noises and saw the defendant beating the dog. One witness called the police while the other yelled for the defendant to stop. After exchanging some words with the witness, the defendant ultimately walked away.

Washington Court Denies Mother’s Motion to Relocate

February 9, 2022 | by Blair & Kim, PLLC

A parent may think there is nothing they can do if the parent who has the child most of the time wants to relocate. Washington family law, however, has a process for a parent to object to the relocation of a child in some circumstances.

In a recent unpublished opinion, a Washington appeals court considered whether the trial court had properly denied a mother’s request to relocate with her child. The child, E.S., was born in August 2012. The parents, who were not married, separated in 2015. They initially had an informal arrangement, under which E.S. primarily lived with his mother but was with his father two or three nights a week.

A parenting plan signed in 2018 established that the father would have E.S. Wednesday to Sunday every other week. The plan could be modified by agreement of the parties and E.S. subsequently began staying with the father 5 nights of every 14.

Washington Appeals Court Rejects First Amendment Challenge to Stalking Conviction

January 31, 2022 | by Blair & Kim, PLLC

The First Amendment protects the right to free speech. A defendant recently challenged a felony stalking conviction, arguing it was based solely on protected speech.

The defendant was retried after his conviction was reversed on appeal.

According to the appeals court’s opinion, an employee of the county corrections center testified at the trial. The witness testified she had known the defendant since high school. She testified he had engaged in inappropriate behavior, including saying “raunchy” things to her. She said he behaved inappropriately toward all women. She testified he made crude comments to her on social media. When she blocked him, he would contact her through a new profile.

Ninth Circuit Reverses Dismissal of Male Student’s Title IX Claim

January 31, 2022 | by Blair & Kim, PLLC

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.