Articles Posted in Title IX

The Department of Education has finally released the final rule on Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance (“Final Rule”).  The Final Rule makes significant changes to the Title IX regulations that were previously amended under the Trump administration in 2020.

The Final Rule specifically provides that sex-based discrimination includes discrimination based on “sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”  A number of lawsuits have already been filed challenging protections related to sexual orientation and gender identity.

The Final Rule includes a new definition of “sex-based harassment” and removes the current definition of “sexual harassment.”  The definition identifies and defines three types of sex-based harassment: quid pro quo harassment, hostile environment harassment, and specific offenses.  The specific offenses include sexual assault, dating violence, domestic violence, and stalking.

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The Washington Supreme Court has recently decided a case involving school discipline.  A Washington public school student filed suit after being suspended and not allowed to return to in-person school after the suspension was over.

The Court noted that students facing suspension are entitled to due process because they have a property interest in their educational benefits.  Students also have statutory protections in Washington.

RCW 28A.600.015 requires the superintendent of public instruction to adopt rules regarding the substantive and procedural due process rights of students.  The rules may allow a district to use informal due process procedures for short-term suspensions, if the superintendent determines that the students’ interests are adequately protected.  The law prohibits a suspension or expulsion from being indefinite.  Short-term suspension procedures apply for suspensions up to 10 consecutive school days.  Emergency removal must be converted to another form of corrective action within 10 school days if they do not end within that timeframe.  The law also prohibits schools from using long-term suspension or expulsion as discretionary discipline.

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The Department of Education submitted the “Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance” final rule to the Office of Information and Regulatory Affairs (“OIRA”) for review on February 2, 2024, according to a government website.

The final rule is expected to undo many of the changes made in the 2020 final rule.  The new final rule has been delayed multiple times since the publication of the draft rule in July 2022.  The final rule was originally expected to be published in May 2023, but the Department of Education pushed that date back to October 2023 after receiving an exceptionally large number of comments during the public comment period.  It was subsequently delayed again, with a new anticipated publication date of March 2024.

Although the final rule has been submitted to OIRA, it still may not meet the expected March 2024 publication date.  According to Executive Order 12866, OIRA has 90 days to complete its review, but that timeframe may be extended.  Interested parties can request to meet with OIRA during its review.  Given the high number of public comments received during the comment period for the draft rule, there may also be significant interest in meeting with OIRA regarding the final rule.  It is therefore likely that the OIRA will not complete its review in time for the final rule to be published by March 2024.

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A student pursuing a claim against their school based on disciplinary action arising from a Title IX complaint may also seek a temporary restraining order or injunction to stop a suspension or expulsion while their case is pending.  A student recently sought to enjoin a suspension.

The medical student filed suit against his private New York medical school after he was suspended for 20 months following a finding he was responsible for sexual misconduct.  He alleged that the school’s adjudication of the complaint violated Title IX and New York City Human Rights laws.  He also made a breach of contract claim.  He moved for a temporary restraining order and preliminary injunction to enjoin the suspension and reinstate him.

According to the court’s opinion, the plaintiff and the complainant, identified by the court as Jane Roe, were both students at the school.  After the graduation formal, several people went to the plaintiff’s apartment on campus.  Jane Roe asked to spend the night because she was intoxicated.  The plaintiff gave her a blanket and pillow and offered her the couch.

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The Sixth Circuit recently determined a school can be liable in a Title IX case for not responding to social media activity by students.  A Nashville, Tennessee, high school student filed suit against the public school system, alleging it was deliberately indifferent to harassment related to her sexual assault and participation in the subsequent investigation.  She alleged the school system was deliberately indifferent before the assault and after the assault, and also alleged equal protection claims under 42 U.S.C. § 1983.

According to the Sixth Circuit’s opinion, a video was recorded of the plaintiff during a non-consensual sexual encounter and posted on social media and third party websites.  Other students harassed – the plaintiff.

The school’s Executive Principal learned about the video on the evening the incident occurred and the school set up a meeting with the plaintiff’s mother the next day.  The plaintiff and her family received harassment and threats from other students on social media. The mother made a list of students who made the threats.

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Representative Lisa McClain, Chairwoman of the Subcommittee on Health Care and Financial Services, and Representative Virginia Foxx, Chairwoman of the Committee on Education and the Workforce, recently initiated an investigation into the Department of Education’s proposed Title IX regulations. Their November 16, 2023, letter to Department of Education Secretary Miguel Cardona expressed concerns about changes to due process protections as well as inclusion of gender identity discrimination within the definition of “sex discrimination.” They are investigating whether outside groups had improper influence over drafting the proposed rules.

The letter stated that the proposed changes would “eviscerate the safeguards that ensured due process for all students.” The letter points to the proposed reinstatement of the “single-investigator model” as an example and states that federal and state courts had ruled against universities more than half the time in lawsuits filed under the 2011 policy when this model was previously in effect.

The letter also alleges that the proposed inclusion of “discrimination on the basis of gender identity” in the definition of “sex discrimination” would “harm women and girls across the country.”

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The Family Educational Rights and Privacy Act (“FERPA”) is a federal law that protects education records.  FERPA generally prohibits a school or university from disclosing a student’s personally identifiable information in their education record without prior consent.  Recently, a university refused to disclose records related to its prior sexual misconduct investigations, arguing that doing so would violate the involved students’ right to privacy under FERPA. A federal district court has granted the plaintiff’s motion to compel, subject to a stipulated agreement by the parties addressing notice to third parties.

The plaintiff filed a Title IX suit against his private university in Rhode Island, alleging he had been improperly disciplined based on his gender after being falsely accused of sexual assault.  The plaintiff requested “comparator discovery” of other sexual misconduct cases during discovery.  The university objected based on FERPA.  The university provided the plaintiff with a summary chart of comparators that included gender, charges, sanctions, and appeal outcomes.  The plaintiff requested the investigation report and adjudication and appeal decisions of four of the matters included in the chart and any other “related” matters.  He requested that the names be redacted, but that the genders be included

The university determined six of thirty total cases were responsive, but it again objected.  The university argued that there was a significant risk the parties could be identified even with redaction.  It pointed out there would be details regarding those individuals and their “private, sexual encounters” in the reports and decisions.  The university stated FERPA required it to make a reasonable effort to notify the student parties and potentially witnesses before disclosure.

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Much of the Title IX litigation brought by students accused of sexual misconduct occurs at the post-secondary level, but a male student recently sued his former high school after being expelled.

The plaintiff was a student at an all-boys private high school in Nebraska.  According to the Eighth Circuit’s opinion, school staff overhead the plaintiff in a conversation with his friend.  The plaintiff claimed he told his friend “that he would not have sex” with a particular teacher, but the staff believed he said he would have sex with the teacher.

The school initiated an investigation.  The plaintiff alleged the Dean of Students said he considered the plaintiff “guilty” and “repeatedly demanded” the plaintiff admit he said he would have sex with the teacher.  The plaintiff claimed he ultimately gave “a false confession” in response to the “pressure” and was expelled.

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A student at a private university in New York recently filed suit against the university due to its alleged failure to accommodate his disability during a Title IX investigation.  According to the complaint, the plaintiff enrolled in the university through a program for intellectually and developmentally disabled students (“Program”).  The plaintiff alleged that he was notified of several complaints filed against him on October 6 and 7, 2022.  He was also notified that the university had determined he was “an immediate physical threat. . .” and was suspended on an interim basis.

According to the complaint, the plaintiff’s parents obtained counsel on his behalf and his advisor requested accommodations during the Title IX investigation process.  When the investigator contacted the plaintiff and his advisor regarding an interview, the advisor responded the plaintiff was “unable to adequately participate in an interview. . .” and would “require extraordinary accommodations.”  The plaintiff alleged that in subsequent communications, the advisor indicated that the plaintiff wanted to participate in an interview if he received proper accommodations.  The complaint alleged the advisor and investigator discussed the matter on the phone, but the plaintiff was still not offered or provided accommodations.

The complaint further alleged that, instead of granting accommodations or engaging in the interactive process, the university served the plaintiff with additional Notices of Investigation regarding more complaints and allegations against him.  According to the complaint, the investigator again contacted the plaintiff and his advisor about scheduling an interview although he acknowledged he had not been contacted by the university’s Center for Disability Resources regarding accommodations.  The complaint states the investigator subsequently advised the plaintiff he intended to proceed to the next step of the investigation.

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A Title IX complaint can result in severe consequences, including loss of scholarships and dismissal from school.  A former student recently sued his military college after he was expelled for alleged sexual misconduct.

The plaintiff, identified in the unpublished Fourth Circuit opinion as John Doe, was a student at a state-incorporated military college in South Carolina.  A female student filed a complaint accusing him of sexual misconduct.  The school’s Commandant’s Board heard the complaint and ultimately found the plaintiff committed a violation in one of the three alleged incidents of sexual misconduct.  As a result, Doe lost his Marine scholarship and was dismissed from the school with leave to apply for readmission after a year.  He appealed, but the appeal was denied.

He filed suit against the college and several officials, alleging violation of his right to procedural due process and sex-based discrimination.  The district court granted the defendants’ motion to dismiss.

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