Seattle Attorneys Blog

Department of Education Is Reviewing and Seeking Comments on Title IX Regulations

May 27, 2021 | by Blair & Kim, PLLC

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.

Tenancy in Common Disfavored in Washington Property Distribution

May 24, 2021 | by Blair & Kim, PLLC

A court hearing a Washington divorce case must distribute all of the parties’ property. The parties’ interest in the property must be “definitely and finally determined.” A wife recently challenged the property division in her divorce decree, arguing that the tenancy in common ownership of the property did not result in a timely distribution of the property.

The parties had been married about 14 years when the wife petitioned for divorce. The court awarded full custody of both children to the father. The court did not order child support, but the father received SSDI benefits for the children, both of whom have disabilities.

The wife testified that she was disabled at the time of the trial. She worked part-time as a substitute teacher and also received SSI benefits.

Washington Conviction Overturned Because Court Denied Second Degree Offense Instruction

May 14, 2021 | by Blair & Kim, PLLC

When a Washington criminal defendant is charged with an offense with different degrees, the jury may generally find him or her guilty of any inferior degree rather than the degree charged. RCW 10.61.003. A defendant recently successfully challenged his first degree conviction after the court denied his request for a jury instruction for the second degree offense.

According to the appeals court’s opinion, witnesses heard gunshots and saw the defendant leave a burning trailer. He was arrested that night.

The defendant does not speak English, so a lieutenant served as an interpreter during his interview. The defendant admitted to setting the fire and firing shots in the ground. He said he had gone to the location to kill someone he thought was threatening him. He said he had been to the trailer three times and it had always been empty, so he thought it was abandoned.

Washington Court Finds Anti-Harassment Order Petition Against Neighbor Was Frivolous

May 6, 2021 | by Blair & Kim, PLLC

Washington civil protection orders provide important protections for victims of harassment, stalking, and relationship violence. In some cases, however, a person may abuse the process and seek a protection order for another reason. In a recent case, a woman challenged a court’s finding her petition for an anti-harassment order was frivolous.

The petitioner and her husband built a fence that crossed onto their neighbor’s property in 2018. Following a letter from his attorney, the neighbor sued them. They failed to respond and a default judgment was entered. Even after being served with the judgment, the petitioner and her husband did not take down the fence.

The trial court ordered the sheriff’s office to help remove the fence in November 2019. A few days later, the neighbor died and his property passed to his brother and sister. The brother and his family went to the property to talk about the fence. The petitioner approached them and asked who they were and why they were there. The brother told her they now owned the property and were preparing to remove the fence the next week with the sheriff. He asked her to confine her horses so they would not get out. She offered to buy the property, but was rejected.

Court Dismisses Title IX Case Filed by Female Student Accused of Sexual Assault

April 28, 2021 | by Blair & Kim, PLLC

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.

Washington Child Support Modification

April 19, 2021 | by Blair & Kim, PLLC

A Washington child support order may be modified in certain circumstances. A court may order modification of child support if there has been a substantial change of circumstances since the current order was entered. A court may also order a modification at least one year after the current order was entered without a finding of a substantial change in circumstances if it finds the existing order results in an economic hardship on either parent or on the child. Additionally, after two years from entry of the existing order, adjustment, or modification, the court may adjust the order based on changes in the parents’ income without a finding of a substantial change in circumstances. RCW 26.09.170.

A father recently appealed a denial of his petition for modification of his child support obligation. The parents divorced in 2016. The court ordered the father to pay $1,167 in child support each month based on $10,000 per month in imputed income. The trial court found he had provided insufficient information regarding his income. At the time of the divorce, the father traveled internationally, lived in Dubai, and gave expensive gifts. The appeals court noted the child support order reflected a conclusion by the trial court that the father was hiding assets.

The father petitioned for modification after nearly three years. He claimed his income had decreased significantly and the child support was now a hardship.

Washington Anti-Harassment Protection Order Against a Minor

April 8, 2021 | by Blair & Kim, PLLC

Parents in Washington want to do what they can to protect their children from harassment. A parent may petition on their child’s behalf for an anti-harassment protection order. A parent’s ability to seek a protection order against another child, however, is more limited. In such cases, the other child must have been “adjudicated of” or investigated for an offense against the protected child. RCW 10.14.040(7). A high school student recently challenged a protection order issued against her on the grounds it was not permitted under RCW 10.14.040(7).

Two high school students were involved in some sort of conflict. The appeals court’s opinion identified the two minor students by the initials A.R.S. and K.G.T. According to the court’s opinion, A.R.S. repeatedly threatened to assault K.G.T.

They met in the bathroom to resolve their differences. A.R.S. shoved K.G.T. A teacher intervened and stopped the incident. The assistant principal subsequently addressed it as a disciplinary issue and suspended K.G.T. for one day and A.R.S. for three.

President Issues Executive Order on Title IX

March 26, 2021 | by Blair & Kim, PLLC

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.

Committed Intimate Relationships in Washington Divorce Cases

March 20, 2021 | by Blair & Kim, PLLC

Washington, unlike some states, recognizes “committed intimate relationships.” Courts may consider a number of factors, including the parties’ intent, the length and purpose of the relationship, whether the parties continuously lived together, and whether the parties pooled their resources. When a couple acquires property during a committed intimate relationship, it is presumed to be community property. The date a committed intimate relationship began can therefore be very significant in a property distribution during a Washington divorce. A husband recently challenged a court’s finding he and the wife were in a committed intimate relationship when a house was purchased.

The parties started dating in 2008 and the wife moved in with the husband in April 2009. The husband paid the rent and bills, and the wife helped with food and other things. She also had furniture and two vehicles. They maintained separate finances.

They bought a house together in March 2010. The wife said they saved money because she knew the builder and her husband helped them. She testified they decided to put the title and loan in the husband’s name because they weren’t married yet. She said the husband told her they would refinance after they got married. The husband paid the mortgage, and the wife said he “was adamant that [the mortgage payments] come from his sole, own checking account.”

Washington Teen Convicted Based on Evidence Found by Mother

March 11, 2021 | by Blair & Kim, PLLC

The Fourth Amendment to the U.S. Constitution protects individuals from warrantless searches by the government, but does not generally apply to the actions of a private person. It can apply, however, if the private person is acting as a government agent. Courts consider whether the government knew of and agreed to the person’s conduct and whether the person’s intent was to help law enforcement. In a recent Washington case, a teenage defendant appealed her possession conviction after the juvenile court admitted evidence her mother found in a search conducted in the presence of a deputy.

According to the appeals court’s unpublished opinion, the mother reported her teen daughter had snuck out and came home intoxicated. The girl was asleep in bed when the deputy responded, and he did not think she looked intoxicated. The mother told him the girl had packed her backpack to run away. The deputy told the mother she could take the backpack and cellphone from her daughter. The mother emptied the contents of the backpack, including a small container that appeared to contain marijuana. The mother told the deputy she wanted her daughter charged. The state charged the girl with possession of 40 grams or less of marijuana while under 21 years of age.

The defendant moved to suppress the marijuana, arguing it was found in an unlawful warrantless search.