Articles Posted in Title IX

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  The defendants moved to dismiss, and ultimately all but four claims were either withdrawn or dismissed.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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