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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 The answer also refers schools to various guidance documents that were previously rescinded, indicating they may be helpful to schools handling allegations of sexual harassment occurring before the effective date of the 2020 Final Rule.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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To convict a defendant of possession of a stolen motor vehicle, the prosecution must show the defendant knowingly possessed the vehicle and that he acted with knowledge it was stolen. When a person is charged with a crime, the charging documents must include all of the essential elements of that offense. A Washington criminal defendant recently challenged his conviction, arguing the charging document failed to give him the required notice of the knowledge element of the offense.

According to the appeals court’s opinion, the defendant was stopped because he was not wearing a helmet.  The officer suspected the moped the defendant was driving was stolen and confirmed those suspicions with a review of the VIN.

The defendant was charged with and convicted of possession of a stolen motor vehicle. He appealed, arguing the charge violated his constitutional right to notice because it did not include the knowledge element.

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Unless an agreement or the divorce decree provides otherwise,  a Washington spousal maintenance obligation generally ends when the party receiving it remarries or registers a new domestic partnership or when either party dies.  RCW 26.09.170(2).  Generally, the court may only modify a maintenance order if there is a substantial change in circumstances.  RCW 26.09.170(1). Washington law also allow a divorce decree to preclude or limit modification of a maintenance provision if the parties agreed to do so in the separation agreement.  RCW 26.09.070(7).  A court does not have the authority to modify such a provision.

In a recent unpublished case, an ex-husband appealed a court order terminating the spousal maintenance he received.  The parties’ divorce decree in 2007 was based on a separation agreement that required the wife to pay the husband spousal maintenance. The agreement provided that the spousal maintenance would terminate when the husband remarried or died. It stated the spousal maintenance obligation was otherwise “non-modifiable” except in the case of the wife’s disability.

The wife sought to terminate the maintenance in 2019, alleging the husband had remarried.  She claimed she had seen a news article indicating the husband was married to another woman.

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When a court grants a Washington domestic violence protection order for a fixed period of time, the petitioner may seek a renewal up to three months before it expires.  A petition for renewal should be granted unless the respondent shows he or she will not resume domestic violence upon the expiration of the protection order.  The respondent must make this showing by a preponderance of the evidence. RCW 26.50.060.

In a recent case, a mother challenged the denial of renewal of an order of protection.  The court had originally granted her a one-year domestic violence protection order against her children’s father protecting the mother and their two children.  The trial court found the father had harmed one of the kids and the mother was afraid for their safety.  The father was prohibited from abusing the mother and children.  The children were subject of a dependency proceeding, so the father’s contact with them was subject to the custody of the Department of Children, Youth and Families.

The mother petitioned to renew the protection order.  She claimed the father scratched the children during his visitation with them. The trial court held a hearing where the mother, her mother, a polygraph examiner, and a Department of Children, Youth and Families social worker testified. Other evidence included a letter and a report from the Department of Children, Youth and Families.

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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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A defendant in a Washington criminal case is entitled to a fair and impartial jury pursuant to both the state and federal constitutions.  Washington court rules allow parties to strike some prospective jurors without a stated reason through peremptory challenges.  A party may not, however, strike a prospective juror for a discriminatory reason.  U.S. Supreme Court case law has developed a framework for analyzing whether there has been improper “purposeful discrimination” in the use of a peremptory challenge.  This analysis, however, does not protect the defendant from the potential of unconscious bias in the selection of the jury.

Washington adopted a rule to address this issue.  General Rule 37 permits a party or even the court itself to object to a peremptory challenge to raise the issue of improper bias.  The party who made the challenge must then articulate their reasons for using the challenge. The court then must determine if an objective observer could see race or ethnicity as a factor, considering the totality of the circumstances.  If so, the court should deny the peremptory challenge.

A defendant recently appealed his conviction after the trial court allowed the prosecution to strike a juror over the defendant’s objection.  According to the appeals court’s opinion, the defendant was charged with first degree kidnapping and second degree assault of his long-term girlfriend, with four firearm enhancements.

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Washington criminal defendants have a right to confront the witnesses against them pursuant to the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. This means a defendant generally has the right to cross-examine witnesses who provide testimonial evidence against the defendant  at trial.  In cases involving charges related to domestic violence or violation of a no-contact order, victims may not want to testify. In a recent case, a defendant challenged his convictions after body camera footage and a 911 recording were presented at trial.

The mother of defendant’s children called 911 and asked for help, stating “He keeps following me!” There was also a male voice on the recording, saying “Give me the phone.”  When police arrived, the children’s mother told them there was a no-contact order.  She said the defendant had been pushed her, threatened to kill her, and stole her phone.

The police found the defendant a short distance away.  He had a phone in his possession.

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A parent may be held in contempt if they fail to comply with a Washington parenting plan. A parent may move for contempt if the other parent prevents visitation, does not return the child from visitation, or fails to engage in joint decision-making.

In a recent case, a mother appealed a contempt order after a commissioner found she had failed to notify the father of dental and medical appointments. A parenting plan was entered when the parents divorced in 2014.  Pursuant to the parenting plan, the children would live with their mother in another state and come to Washington to visit their father for winter and summer vacations. Each parent was allowed to make day-to-day decisions and emergency healthcare decisions while the children were with them, but nonemergency health care decisions were to be made through joint decision-making.

The father alleged the mother had taken the children to the dentist without notifying him.  The mother said she probably had notified him, but that she could have forgotten to do so.  The father wanted to engage in joint decision-making and participate in the appointments remotely.

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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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A defendant in a Washington criminal case is entitled to a self-defense jury instruction if he shows some evidence of self-defense.  The use of force by a person “about to be injured” is not unlawful if it is not greater than necessary. RCW 9A.16.020(3).  Another statute provides that a homicide is justifiable if the person has “reasonable ground to apprehend” “great personal injury.” RCW 9A.16.050.  Case law has held, however, that the “great personal injury” standard applies when the defendant used deadly force, even if no one was killed.

A defendant recently challenged his convictions for second degree assault with firearm enhancements, arguing court erroneously instructed the jury on the “about to be injured” standard instead of the “great personal injury” standard.

According to the appeals court’s opinion, the defendant lived in a mobile home park with a homeowners association. After the defendant informed the homeowner association’s president’s she could not be at another mobile home removing the previous resident’s belongings, the defendant and the association president had an altercation.

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