Articles Posted in Title IX

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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In July 2022, the Department of Education (“Department”) proposed Title IX regulations that would undo a number of changes made during the Trump Administration.  The final rule was expected to be released this month. The Department recently provided an update, however, stating that the new anticipated date for the final Title IX rule is October 2023.

According to the Department, more than 240,000 public comments were submitted in response to the proposed regulations.  This is more than twice the number of comments the controversial 2018 proposed regulations received.  Under the proposed rule, sex-based discrimination and harassment would include gender identity, sexual orientation, sex characteristics, sex stereotypes, and pregnancy or related conditions.  Much of the attention around the proposed rule has been focused on the protections based on gender identity and sexual orientation, but there are other significant changes.

Victim advocates and education organizations have raised concerns over the mandatory reporting requirements, which require certain employees to report conduct that may constitute sex discrimination to the Title IX Coordinator.  The American Association of University Professors commented that such requirements negatively affect teaching and advising relationships.  Other commenters noted that the mandatory reporting requirements as written could be confusing to students and would likely discourage victims from seeking help and support.

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In a recent case, a female student of a Louisiana university sued multiple parties as a result of an off-campus rape by another student who had been accused of multiple prior sexual assaults and rapes.  A Louisiana federal court denied the university defendants’ motion to dismiss, finding the university had substantial control over the context of the assault even though it occurred off-campus.

According to the court’s opinion, the plaintiff was raped in 2021 while a student at the university. She did not know the last name of her attacker at the time.  A national newspaper reported on the accused student’s alleged sexual misconduct and the defendants’ failure to act.  The plaintiff filed suit for Title IX violations and negligence against the Board of Supervisors of the university the accused student previously attended, the Board of Supervisors of the university she attended with the accused student, and the local city-parish government.

The accused student had previously been banned from another university’s campus in Baton Rouge (“First University”) after two female students of that university separately reported him for rape. He subsequently transferred repeatedly between the university attended by the plaintiff (the “University”) and another university (“Second University”) under the same Board of Supervisors.

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Lawsuits arising from a Title IX complaint or investigation can involve a number of complex issues.  In a recent case, the Sixth Circuit considered both whether a private college’s Title IX procedures were subject to a § 1983 federal due process claim and when a Title IX claim is ripe for review.

According to the Sixth Circuit’s opinion, a student, identified in the court documents as “Jane Roe,” reported alleged sexual misconduct by the plaintiff in December 2019.  Pursuant to Roe’s request, the Title IX office did not immediately inform the plaintiff of the allegations or investigate.   The plaintiff was notified of the complaint by email on February 4, 2020.  He alleged the college’s failure to timely investigate prevented preservation of security footage.

The plaintiff claimed he had to hire a private investigator due to the lack of information from the college.  He alleged Roe told his private investigator she planned to use the informal Title IX process.

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Title IX allegations can have consequences even if the student is not found responsible of sexual misconduct.  In a recent case, a student sued his college after being excluded from a sports team following an allegation of sexual assault that did not result in a formal Title IX complaint or investigation.

The plaintiff was a senior student and team captain of a sports team at a Pennsylvania college. According to the court’s opinion, co-captains of the team reported a rumor the plaintiff sexually assaulted a female student to the coach.  The coach reported the allegations to the college’s Title IX office.  He also recommended the plaintiff step away from the team during the investigation, and the plaintiff sent an email to the team that day.

The alleged victim informed the Title IX office she did not intend to make a formal complaint.  The Title IX Office decided not move forward with a formal investigation and notified the plaintiff.

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A California school district recently sought to have Title IX and related claims against it dismissed.  The plaintiff was a high school student who filed suit through his guardian ad litem against the school district, several individually named administrators and athletics personnel, and unnamed “Doe” defendants.  The defendants filed a 12(b)(6) motion to dismiss and asked the court to strike the plaintiff’s request for punitive damages.

In reviewing a 12(b)(6) motion, the court considers whether the plaintiff has stated a legally sufficient claim.  The court’s review is therefore limited to the complaint.

According to the court’s order, a student recorded a Snapchat video of the plaintiff and his girlfriend in a classroom.  The school administrators claimed this video showed the pair engaged in a sexual act, but the plaintiff denied that there had been any sexual activity.  A vice principal interviewed other students who said there had been sexual activity and subsequently suspended the plaintiff for three days on December 19.

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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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