Articles Posted in Title IX

In December 2022, identical bills were introduced in the Senate, S. 5158, and House of Representatives, H.R. 9387, to amend Title IX.  The short title for the act is “Students’ Access to Freedom and Educational Rights Act of 2022,” also known as the SAFER Act.  In addition to amending Title IX, the SAFER Act would also amend other federal laws relating to discrimination.  This act would impose additional requirements on schools with regard to protecting individuals from discrimination and Title IX.

The SAFER Act would add a provision making schools liable for sex-based harassment committed by their agents, employees, or other authorized persons if the person’s authority enables or assists in the harassment or the school receives notice of the harassment.  Schools would also be liable for sex-based harassment against a person participating in or receiving benefit, service, or opportunity from a school program or activity or is trying to do so, when the schools have notice of the harassment. A school would not liable for damages if it can show it exercised reasonable care to prevent sex-based harassment and promptly remedy the effects, including through certain specified actions.

It includes definitions for “gender identity,” “on the basis of sex,” “recipient,” “sex-based harassment,” and “sexual orientation.” The definition of “on the basis of sex” includes orientation and gender identity.

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To obtain a temporary restraining order (“TRO”), a party must show likelihood of success on the merits, lack of adequate remedy at law, and irreparable harm if the restraining order is not granted.  Additionally, they must show that immediate and irreparable injury, loss, or damage would occur before the opposing party can be heard.  If these requirements are met, the court must balance the potential harm to the parties and the public interest.  In a recent case, a university student sought a TRO to prohibit the school from removing him from student housing.

According to the district court’s memorandum opinion, a senior student, identified as “John Doe,” sued his university in a federal court in Illinois for Title IX, Fair Housing Act, and state law claims.  He moved for a temporary restraining order to prohibit the university from requiring him to move out of student housing and banning him from other residence and dining halls for the rest of the school year.

Likelihood of Success

In considering a temporary restraining order, the court must determine if, under the totality of the circumstances, the plaintiff has a likelihood of success on the merits for his Title IX claim. The court focused on the plaintiff’s Title IX claim.

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When a student files suit against their school alleging a Title IX violation arising from a Title IX investigation and proceedings, the person who made the allegations is generally not a party to the lawsuit.  That person often has important information related to the allegations and the disciplinary process, however.  A Texas federal court recently ordered the person who made allegations of sexual assault to comply with a subpoena for a deposition in the accused student’s lawsuit against the university.

“John Doe” sued his university for breach of contract and violation of Title IX.  He alleged his ex-girlfriend falsely accused him of two separate incidents of sexual assault.  According to his complaint, the hearing panel suspended him and stated he would be eligible to reenroll in 2023. The hearing panel also directed him to go to therapy and counseling and complete online Title IX training before he reenrolled.  He would also remain on “conduct probation” while he was at the university.  He appealed the hearing panel’s decision, but it was upheld.

He filed suit against the university in April 2022.  As part of that case, he sought to depose “Jane Roe,” the woman who had made the sexual assault allegations against him.  She filed a motion to quash the subpoena.

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The comment period has closed on the Department of Education’s (“Department”) proposed Title IX rule. The Department received more than 200,000 comments. The Department has not indicated an anticipated timeline for finalizing the rule.  The Title IX rule proposed and published under the previous administration reportedly received about half as many comments. That rule was proposed in November of 2018, received comments until February 2019, was published as final in May 2020, and took effect August 2020.  Given the number of comments to the new proposed rule and the number of issues being addressed in the comments, it could be quite a while before a new final rule takes effect.

The proposed rule would make significant changes to Title IX investigations and procedures, but it also includes other divisive changes.  One change that has drawn a lot of attention is the proposed rule’s clarification that Title IX’s protections against sex-based discrimination include discrimination based on sexual orientation and gender identity. The proposed rule would also provide protections for pregnancy and pregnancy-related conditions.

Individual schools, including the University of Washington submitted comments.  Education associations such as the American Association of University Professors  and the American Council on Education (“ACE”), whose comment was also on behalf of a number of other organizations, submitted comments.  The American Civil Liberties Union (“ACLU”) and The Leadership Conference on Civil and Human Rights, joined by a number of other organizations, also provided comments.

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The use of pseudonyms has been a significant issue in Title IX litigation recently, with some courts denying accused students the ability to proceed in litigation against their school under a pseudonym.  The First Circuit, however, has recently vacated an order denying an accused student the use of a pseudonym and provided a new standard for evaluating this issue.

According to the First Circuit’s opinion, the plaintiff was found responsible for nonconsensual sexual contact and intercourse and sexual harassment by a three-member panel following a Title IX investigation and hearing.  He was notified he would be expelled. The university denied his appeal and expelled him shortly before he was to graduate.

The plaintiff sued the university, alleging breach of contract, promissory estoppel, and denial of basic fairness.  He alleged the investigation’s “[r]adical feminist anti-male bias” led to a presumption the complainant’s allegations were true.  He also moved to proceed by pseudonym because he would be significantly harmed by being required to reveal his identity.  The district court denied the motion and the plaintiff ultimately appealed.

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Title IX prohibits sex-based discrimination in education programs or activities that receive federal financial assistance. Public schools are clearly subject to Title IX requirements, but applicability to private schools is less clear.  If a private school receives federal financial assistance, it is subject to Title IX, thought there are certain exemptions for educational institutions controlled by religious organizations.  Federal financial assistance can include grants and loans, but can also include programs such as the National School Lunch Program and Head Start. A federal court in Maryland recently considered whether tax-exempt status constitutes federal financial assistance.

Former students and parents on behalf of minor former students sued a private high school, alleging the school had failed to adequately address their complaints of sexual assault and sexual harassment by male students.  The school moved to dismiss the Title IX complaints, alleging it was not subject to Title IX because it was not a direct recipient of federal financial assistance at the time in question.

The court stated the school’s argument was “without merit” because its “tax-exempt status . . . constitutes federal financial assistance for the purposes of Title IX.”

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The U.S. Department of Education released a new proposed Title IX rule for public comment on the 50th anniversary of Title IX.  This proposed rule has been highly anticipated, and as expected, reverses some of the changes made in 2020.

The proposed rule broadens the scope and application of the Title IX regulations.  It states the scope of Title IX is “[d]iscrimination on the basis of sex. . .” Sex-based discrimination under the proposed rule expressly includes discrimination based on gender identity, sexual orientation, sex characteristics, sex stereotypes, and pregnancy or related conditions. Likewise, the proposed rule includes discrimination on those bases within the definition of “sex-based harassment.” The proposed rule places unwelcome conduct harassment under a hostile environment framework. The definition of “hostile environment” requires the unwelcome conduct to be “sufficiently severe or pervasive” to either deny or limit the person’s ability to participate in or benefit from the education program or activity.  The proposed rule further expands the application of Title IX by placing an obligation on schools to address a sex-based hostile environment under the school’s education program or activity even if the harassment occurred outside the education program or activity or outside the U.S.

The proposed regulations also expand the school’s ability to use an informal resolution process to include situations where a formal complaint has not been filed.

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A preliminary injunction can prevent a university from implementing Title IX sanctions against a student while a lawsuit is pending.  To obtain a preliminary injunction, the plaintiff must meet certain criteria, including showing a likelihood of success on the merits, a lack of adequate remedy at law, and a likelihood of irreparable harm without an injunction. A student, identified in the court’s order as John Doe, recently sought a preliminary injunction in a Title IX case in an Indiana federal court.

According to the court’s order, on the night of November 13, 2020, John hung out with another student, identified as Jane Roe, and some other friends in the common room of Jane’s suite.  John claimed he went back to his own place, but Jane messaged him asking him to come back at 2:00 a.m.

Jane later alleged John got into her bed and touched her sexually without her consent.  John agreed he had helped her into bed, but said he then went back to the common room with the others and denied getting into her bed or touching her.  He said Jane later got up and came back to the common room.

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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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