Articles Posted in Title IX

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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Because Title IX cases may involve allegations of sexual harassment or sexual assault, Title IX plaintiffs often want to maintain anonymity. Courts commonly allow Title IX plaintiffs, both alleged victims and those who have been accused of sexual misconduct, to proceed under a pseudonym. Recently, however, some courts have denied male plaintiff’s requests to do so.

In one recent case in Colorado, the plaintiff asked to be allowed to file a complaint under a pseudonym in February. The court originally granted that motion, finding the plaintiff had alleged a significant privacy interest.  The court noted that the defendants could still object to the use of a pseudonym or the judge could revisit the issue later in the case.

The defendants moved to require the plaintiff to proceed under his true name, arguing the case did not involve highly personal and sensitive matters and that the interests of the defendants and the public interest’s weighed against allowing him to proceed with a pseudonym.

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Students involved in a Washington Title IX case often wish to remain anonymous.  Title IX lawsuits are often brought under pseudonyms such as “John Doe” or “Jane Doe.” In some cases, however, a court may not allow a plaintiff to proceed with the lawsuit anonymously.

A Michigan federal court has reportedly dismissed a student’s Title IX case against his university because it was filed anonymously.  According to the court, the university suspended the plaintiff from its football team after he was accused of sexual assault by another student.  He sued the university, alleging it violated his Title IX rights.

The plaintiff filed the suit as “John Doe” and sought the court’s permission to proceed anonymously.

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A suspension or other sanctions imposed by a university as the result of a Title IX accusation can have severe consequences for the accused student.  In some cases, it may be possible to prevent such sanctions, or at least delay them. An Indiana court recently issued a temporary restraining order against a university restraining it from suspending a male student or imposing other sanctions or restrictions against him following a Title IX complaint and investigation.

In his complaint, the plaintiff alleged a large number of procedural errors in the university’s handling of a Title IX complaint against him, including violations of Title IX regulations and the university’s own policies and procedures.  His complaint included allegations of issues in the investigation, hearing, and the appeal process. He alleged the university did not disclose the details of the complaint against him or produce copies of certain evidence. The plaintiff also alleged the university hired individuals from an outside company with a conflict of interest to act as decision-makers, while the university’s policy defined “Decision-Makers” as “members of the three-person panel of trained faculty, staff, and/or administrative officials . . . .”

The plaintiff also alleged the complainant was allowed to testify at the hearing about alleged sexual assaults by the plaintiff against others, alleged rape by the plaintiff, and alleged nonconsensual sexual interactions between the plaintiff and others. The plaintiff alleged the decision-makers did not stop the irrelevant testimony and in fact the Hearing Officer asked questions related to those topics.  The plaintiff alleged the Hearing Officer asked questions that were prohibited by the university’s policy and applicable regulations. The plaintiff also alleged the hearing Officer relied on the complainant’s and her roommate’s testimony about photos that were not in evidence.  His lawsuit also identified numerous alleged issues with how the university processed his appeal.

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The Department of Education (“Department”) Office of Civil Rights (“OCR”) recently issued a Questions and Answers document providing guidance on Title IX sexual harassment regulations. In addition to a number of questions and answers about the regulations, the 67-page document provides examples of Title IX procedures for elementary schools, high schools, colleges, and universities.  The document makes clear that the 2020 regulations remain in place for now, but provides some insight into how the current administration may interpret those regulations until it implements its own amendments.

Applicability

Answer 13 makes clear that the 2020 amendments are not retroactive and schools should apply the Title IX requirements in place when the alleged incident occurred, regardless of when the school responded. The answer also refers schools to various guidance documents that were previously rescinded, indicating they may be helpful to schools handling allegations of sexual harassment occurring before the effective date of the 2020 Final Rule.

Actions Beyond the Regulations

Question 2 addresses whether a school may take steps beyond those set forth in the 2020 Final Rule. The answer provides that the school may take additional actions that do not conflict with Title IX or the regulations.  Question 7 and its answer also address alleged sexual misconduct that does not meet the regulations’ definition of sexual harassment. The answer clarifies that the school may respond to reported sexual misconduct that occurs outside the United States or outside the education program or activity.  Schools may take action against sexual misconduct that does not fit the definition of sexual harassment. The answer clarifies OCR’s position that Title IX does not prevent a school from addressing misconduct that does not meet the definition of sexual harassment by enforcing its code of conduct.

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On May 19, 2020, the Department of Education (“DOE”) published a Final Rule significantly amending the regulations that implement Title IX. The Final Rule changed the requirements for how schools handle Title IX complaints and investigations.  Four victims’ advocacy groups and three individual plaintiffs filed suit in a federal court in Massachusetts to challenge the Final Rule. The plaintiffs argued in part that portions of the Final Rule were arbitrary and capricious.

In some circumstances, an agency is required to give a detailed explanation when it has a change in policy. An agency must provide a detailed justification for a change in policy that is based on factual findings that contradict the factual findings upon which the previous policy was based.  Additionally, the agency must give a detailed justification if there were “serious reliance interests” on the prior policy. The agency then must weigh those reliance interests against the policy concerns.

The court noted that most of the plaintiffs’ arguments that the Final Rule was arbitrary and capricious were really policy arguments.  The DOE had explained why the provisions supported its goal, why it wrote them the way it did, and why it rejected a number of alternatives.  It also addressed commenters’ concerns.

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The Department of Justice (“DOJ”) recently filed a statement of interest in a Title IX case, co-signed by attorneys for the Department of Education. The case was filed against a university by several female students and former students who alleged they had been the victims of sexual misconduct by other students. The plaintiffs alleged the misconduct had been reported to the university.  Some alleged they were subject to peer retaliation or harassment after reporting, and some of those plaintiffs alleged the university failed to investigate the reported retaliation. The plaintiffs further claimed that the university’s deliberate indifference in its responses to the reports led to a hostile environment that deprived them of educational benefits.

In its motion to dismiss the plaintiff’s claims, the university cited Davis v. Monroe County Board of Education. According to the DOJ, the university misapplied the law of that case and others by confusing the standards for “post-assault” claims and “pre-assault claims.”

According to the statement of interest, the university argued that the plaintiffs’ claims did not meet the standards set forth in Davis and other Title IX cases. The DOJ argues that case law has distinguished post-assault claims from pre-assault claims and this case involved only post-assault claims.  According to the government’s statement of interest, to pursue a post-assault claim, the plaintiff must allege the university had actual knowledge of sexual harassment that was “severe, pervasive, and objectively offensive” to the extent that it prevents the plaintiff from accessing an educational opportunity. Additionally, the plaintiff must allege the university responded with deliberate indifference.  A response is deliberately indifferent if, as a result of the response, the plaintiff underwent additional harassment or became more vulnerable to additional harassment.

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In Executive Order 14021, President Biden stated a policy of guaranteeing students “an educational environment free from discrimination on the basis of sex. . .”  and instructed the Secretary of Education to review existing regulations and other policy documents within 100 days from the date of the order.  The executive order specifically identified the amendments to the Title IX regulations that took effect in August of 2020.

The Department of Education’s Office for Civil Rights (“OCR”) has recently provided some information on how it plans to proceed with that review. In a letter addressed to students, educators, and other stakeholders, OCR stated that it will be conducting a comprehensive review of the Department of Education’s regulations, orders, guidance, policies and other agency actions.  The letter also specifically identified the 2020 regulations as an item to be reviewed.

As part of the review, OCR will hold a virtual public hearing allowing both live and written comments.  The hearing will be held from June 7, 2021 to June 11, 2021.  In the hearing notice, OCR specifically requested comments related to the regulations related to sexual harassment and discrimination based on sexual orientation and gender identity. Due to the potential sensitive nature of the comments, there will not be a recording of the hearing, but a transcript will be posted on the OCR website.  The hearing notice also states that OCR will not share the personally identifiable information of commenter’s without first obtaining their consent.

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A federal court has dismissed a female plaintiff’s claims against a university in an unusual Title IX case.  According to the court’s opinion, a male student, “John Doe,” first alleged the plaintiff, “Jane Doe,” committed sexual assault against him.  The plaintiff subsequently alleged he had committed sexual assault against her.  Following an investigation and hearing addressing both complaints, the university found the plaintiff sexually assaulted John Doe by having sexual intercourse with him when he was too intoxicated to consent.  The university also found that John Doe committed sexual assault against the plaintiff when he choked her during the encounter and that he committed “Sexual Verbal Abuse.” Both students were suspended for a semester.

Jane Doe filed suit against the university, alleging in relevant part that the university’s disciplinary process violated Title IX and its decision was motivated by gender bias.  She argued procedural flaws and evidentiary weaknesses led to an erroneous result.  She further alleged that these procedural issues were motivated by her gender. The plaintiff also alleged several other claims, including breach of contract and negligence.

The court noted that, as a private university, the defendant did not have the same due process requirements as a public institution.

When a plaintiff alleges discrimination based on erroneous outcome, she must allege facts that raise an “articulable doubt” on the outcome’s accuracy as well “circumstances suggesting that gender bias was a motivating factor” in that outcome.  Articulable doubt can be shown through procedural flaws, “inconsistencies or errors in the findings,” or insufficiency or unreliability of the evidence.  To show gender bias, the plaintiff must show that she was wrongfully found guilty at least partly due to her gender.

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