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Articles Posted in Title IX

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In a recent unpublished case, the Sixth Circuit held that an accused student had waived his due process rights.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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Title IX disciplinary hearings can result in severe consequences for a student accused of sexual misconduct.  In the past few years, accused students have been challenging Title IX procedures.  In a recent case, a student of a private university in Kentucky (the University) sought injunctive relief to delay a disciplinary proceeding.

According to the court’s opinion, John Doe and Jane Doe were involved in an incident in John Doe’s dorm room, the facts of which are disputed.  A Title IX investigation was ultimately opened.

John Doe received notice of the investigation and met with the Title IX Coordinator.  He was placed on interim social probation and interim suspension from some campus locations.  He was not allowed to go back to the residence halls and moved into a university apartment complex. According to the University, John Doe’s involvement as the respondent in two sexual misconduct investigations influenced these sanctions.

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Sex-based discrimination is prohibited in education programs and activities that receive federal financial assistance pursuant to Title IX of the Education Amendments of 1972.  Discrimination based on sex includes sexual harassment, sexual violence, and gender based harassment.  Although the focus of Title IX has generally been on post-secondary education, Title IX also applies to public schools and school districts.

Following regulatory guidance during the Obama administration and increased pressure from the media and the public to address sexual harassment and sexual violence, many colleges and universities changed their investigatory and disciplinary policies and procedures.  Unfortunately, some of these changes came at the expense of the accused students’ rights.  Although the current administration has withdrawn the guidance that lowered the standard of proof and discouraged cross-examination in student sexual misconduct investigations, colleges and universities still fail to ensure accused students receive due process.

Recently, the United States Department of Education announced a new enforcement initiative to address sexual harassment, sexual assault, sexual misconduct, and sexual violence incidents in K-12 public schools.  According to the press release, the new initiative will “strengthen the ability of schools to respond to all incidents of sexual harassment and assault.” The new initiative will include compliance reviews of schools and school districts, which will involve the review of policies, procedures, and practices for addressing complaints.  The initiative will also involve public awareness, data quality reviews to ensure incidents are being accurately recorded and reported through Civil Rights Data Collection, and the collection of additional data.

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Many recent Title IX cases filed by students accused of sexual assault or sexual misconduct have focused on procedural issues, such as denial of an opportunity to cross-examine the accuser.  In some cases, however, the pressures to address allegations and support alleged victims may result in gender bias against accused male students during investigations and in the outcomes of those investigations.

Recently, a federal court in Virginia considered a university’s motion to dismiss part of a former student’s claims against it. In March 2017, the plaintiff engaged in sexual intercourse with a female student, identified in the court’s opinion as Jane Roe. She reported the incident as sexual assault, but the plaintiff alleged the encounter was consensual. He alleged they agreed to meet and walked to his house.  He alleged they had sex and fell asleep, and Jane Roe left in the morning.

According to the opinion, Jane Roe later texted the plaintiff and asked what time they had sex.  He answered that he “honestly had no idea.”  Jane Roe met with the Title IX Coordinator and said she had not consented because she fell asleep and did not remember having intercourse.  She filed a Title IX complaint.

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The public often hears about due process violations in schools and universities after an accused student files a Title IX claim in federal court.  It is important to remember, though, that there may be an internal appeals process as well as an opportunity to appeal to Washington state court when a student faces disciplinary action as the result of a Title IX investigation.  As an example, a state appeals court recently vacated a state superior court’s judgment upholding a student’s expulsion based on a sexual misconduct allegation.

The case arose after a female student reported an alleged sexual assault to the police department.  No criminal charges were brought.  Five months after the incident, the female student filed a report with the university police department.

The Dean of Students Office notified the respondent its investigation found “it was more likely than not [the respondent] engaged in non-consensual sexual activity” with a woman he knew was incapacitated.  The respondent was found responsible for violating the sections of the Code of Conduct relating to furnishing alcohol to an underage person (§ F(15)) and sexual misconduct (§ F(23)). The Dean of Students Office ordered the respondent expelled.  The respondent asked for a hearing.

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The Sixth Circuit recently weighed in on a circuit split involving a school’s liability for its response to sexual harassment. While this does not directly affect Washington Title IX cases, it shows the contrasting interpretations of Title IX throughout the country.  Four female students filed suit against a University, alleging that its response to their reports of sexual assault was inadequate and caused physical and emotional injuries, resulting in a denial of educational opportunities.  The defendants moved to dismiss, and ultimately all but four claims were either withdrawn or dismissed.  The remaining claims were Title IX claims and an equal protection claim under § 1983.

The Sixth Circuit granted the defendants’ motion for an interlocutory appeal to address the question of whether there must be additional acts of discrimination to support deliberate indifference to peer-on-peer harassment under Title IX. In evaluating a Title IX private cause of action against a school, courts use the test set forth in Davis v. Monroe County Board of Education. The Sixth Circuit noted that Davis requires the school’s actual knowledge of actionable sexual harassment and a deliberate indifference to that harassment that results in additional actionable harassment.  Under Davis, harassment must be severe, persuasive, and objectively offensive to be actionable.

The plaintiff must then prove the elements of deliberate indifference. The plaintiff must show that the school had actual knowledge of actionable sexual harassment.  The plaintiff must show that there was an act, meaning an unreasonable response in light of the circumstances. There must be an injury, meaning that the plaintiff was deprived of access to educational opportunities or school benefits.  The plaintiff must also show that the defendant’s act caused the injury.  The Sixth Circuit noted that the Davis case requires the plaintiff to show that the defendant’s deliberate indifference subjected students to further actionable harassment.  The plaintiff must show both that the response was unreasonable and that it led to further harassment.

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In the past few years, students have been challenging the procedures used by colleges and universities in disciplinary proceedings related to Title IX.  As schools have become more proactive in addressing sexual harassment and sexual assault, ongoing issues regarding the required due process for related disciplinary proceedings have arisen.  Schools sometimes suspend or expel students without giving students fair notice and an opportunity to be heard.

A case in the First Circuit recently held due process does not require an accused student be allowed to cross-examine his accuser.  The student had been accused of assault by another student, who was his girlfriend at the time.  The university suspended him for five months and ultimately expelled him.  He filed suit against the university.   The district court entered summary judgment in favor of the defendants, and the plaintiff appealed to the Ninth Circuit.

A student in a state educational institution has a property interest in their “legitimate entitlement to a public education. . .” That interest is protected by the Due Process Clause and therefore cannot be taken away for misconduct unless procedures required by the Due Process Clause are followed.  The essential requirements of due process are “notice and an opportunity to be heard.” For school disciplinary action, this generally requires a hearing.

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Washington Title IX defense attorneys know that the procedures used by schools and colleges to investigate allegations of sexual harassment are not always fair.  The Secretary of Education has proposed amendments to the regulations that implement Title IX of the Education Amendments of 1972. Title IX prohibits sex-based discrimination in education programs and activities receiving federal financial assistance.  The proposed regulations would define sexual harassment, specify when a school must respond to a sexual harassment allegation, impose a standard for a school’s response to sexual harassment allegations, set forth when a school must initiate its grievance procedures, and require procedures to ensure a fair and reliable factual determination during the investigation and adjudication of a sexual harassment complaint.

The Secretary found problems with how Title IX has been applied.  These problems included definitions of sexual harassment that were too broad, lack of notice, not providing both parties with the evidence reviewed by the investigator, not allowing cross-examination of the parties and witnesses, and adjudications that applied the lowest standard of evidence.

The proposed regulations are intended to ensure that allegations are properly investigated and procedures are fair to both parties.  Unfortunately, sometimes schools and universities engage in procedures that deny due process to those accused of sexual harassment, regardless of whether the accused person is a student or a faculty member.

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