Articles Posted in Title IX

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 50^th 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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In considering a motion for preliminary injunctive relief, the court must take into account the likelihood of success on the merits, the potential for irreparable harm, a balance of the hardships, and the public interest.  Injunctions can therefore be difficult to obtain because the court is heavily focused on how likely the moving party is to win their case.

A student recently obtained a preliminary injunction enjoining his university from implementing a preliminary suspension.  The plaintiff was a senior and student athlete at a Rhode Island university when a Title IX complaint was filed against him alleging sexual assault.  A “Threat Assessment Team” (the “team”) recommended interim suspension because of “the egregious nature of the alleged behavior.”

The plaintiff appealed the interim suspension. He was allowed to finish the semester remotely and the issue of suspension was remanded to the team to reconsider based on his response to the complaint.  The result was that the plaintiff was to be suspended on January 7, 2022, pending completion of the Title IX process.

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A plaintiff alleging a Title IX claim against a school must sufficiently state a claim to avoid the case being dismissed.  However, in the early stages of a lawsuit, a plaintiff alleging his school discriminated against him in its Title IX investigation and disciplinary proceedings may not be aware of many of the facts that could help him prove his case.  The Ninth Circuit has recently held that, to survive a motion to dismiss, such a plaintiff need only allege facts that would give rise to a plausible inference that the school discriminated against him based on sex.

Because the Ninth Circuit was reviewing a motion to dismiss, it took the well-pleaded facts as true and viewed them in the light most favorable to the plaintiff.  According to the opinion, the plaintiff was  pursuing a doctorate.  In 2014, he began dating a student, referred to as “Jane Roe.”

In February 2017, the plaintiff ended the relationship after learning Roe had not been faithful. Although Roe was no longer a student, the two planned to meet on February 13 after the plaintiff’s class to return each other’s property.  Instead, she appeared at the plaintiff’s office before his class, pounding on the door.  The plaintiff did not let her in.  He told Roe he had to go, but she tried to block the door.  He ultimately got past her, but she followed and tried to keep him from going into the classroom.

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A Washington Title IX investigation can have lasting and serious effects on an accused student.  A Washington appeals court recently concluded that the names of students found responsible for a crime of violence or a nonforcible sexual offense in disciplinary proceedings at a public university are subject to disclosure under the Washington Public Records Act (“PRA”).

According to the appeals court’s opinion, journalists submitted a public records request to a university  seeking results of disciplinary proceedings with findings that “a student was responsible for a crime of violence or nonforcible sexual offense in the last five years.” The university provided tables of the offenses, each including the disciplinary action taken, but with the students’ names redacted.  The university also provided an exemption log which identified the student’s names as exempt from disclosure under RCW 42.56.230(1).

The journalists sued the university to get the students’ names.  The university subsequently concluded the names were not exempt and notified the involved students it intended to disclose their names.  Seven students sought injunctive relief.  The trial court denied the injunctions, finding the students failed to show their names were exempt.

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