Title IX

Rape, Defamation, and Title IX: Connecticut Supreme Court Holds Yale’s Lack of Procedural Protections Allows Defamation Claims Against Complainant to Go Forward

Published on: June 24, 2023 | by Naomi Shatz

When can a person accused of sexual misconduct sue the accuser for defamation? Since the #MeToo movement began, more and more people accused of sexual assault have turned to defamation lawsuits as a weapon to combat those allegations. In 2022 Johnny Depp won his defamation claim against his ex, Amber Heard, who had written an op-ed describing herself as a survivor of domestic violence, without naming Depp. (Depp was also found liable for defaming Heard when his lawyer called Heard’s claims a “hoax”). In 2020 a judge found singer Kesha had defamed her former music producer by telling a friend he had raped her; New York’s highest court recently overturned that decision, and the parties settled. A crowdsourced Google spreadsheet of allegations of sexual misconduct against men in media resulted in a lawsuit against the woman who started the spreadsheet, and a six-figure settlement for the plaintiff. Defamation claims in sexual assault cases have gone the other way too; A jury recently found that Donald Trump defamed E. Jean Carroll by calling her sexual assault allegations against him a hoax. In these high-profile instances, defamation suits have become a vehicle to set up a jury to decide whether allegations of sexual misconduct are true. CONTINUE READING ›

In Doe v. Stonehill College the First Circuit Demonstrates a Willingness to Second Guess how Schools Conduct Disciplinary Processes

Published on: December 16, 2022 | by Naomi Shatz

For the second time this year, the First Circuit has reversed a district court’s ruling dismissing a student’s breach of contract claim against his school, reaffirming that courts are willing to second guess school’s interpretations and applications of their own policies.

Background of the Case

In Doe v. Stonehill College the plaintiff alleged that Stonehill had violated his contract with the school, and discriminated against him in violation of Title IX, when it found him responsible for sexual misconduct in 2018 and expelled him. According to his complaint, he and student Jane Roe had had three previous consensual sexual encounters before the incident that gave rise to her Title IX complaint against him. On the night in question, he claimed that the two engaged in sexual conduct that was the same as on other nights, and to which she consented in the same way (through physical manifestations of consent) that she had on previous occasions.

New SAFER Act Seeks to Fix Decades of SCOTUS Narrowing of Students’ Civil Rights

Published on: December 13, 2022 | by Naomi Shatz

Federal legislators have introduced a bill to correct absurdities in anti-discrimination law that ensure institutions are rarely held liable for egregious acts of discrimination on their campuses. As things currently stand, a school district cannot be held liable for an on-campus rape of a student even if the student had previously been harassed by the assailant and told her teacher about the harassment, but the teacher failed to report it to the right administrator at the school. Even where students can bring legal claims against their schools for the school’s failure to properly address sexual harassment, they may well walk away from such a lawsuit empty handed because plaintiffs cannot recover punitive damages and may not be able to recover emotional distress damages in civil rights lawsuits in the education context. Imagine this: a college knows that it employs a professor who has assaulted countless students over many years. The professor sexually assaults another student on campus. Despite suffering extreme mental health consequences from the assault, the student manages to stay in school and graduate on time. If the student sues the school, a court could decide that even though the school has violated the student’s rights under Title IX, the student is not entitled to any damages for the harm the school has caused. CONTINUE READING ›

Back to School Basics: Teachers, Employees, and Title IX

Published on: September 7, 2022 | by Naomi Shatz

What Teachers and Other School Employees Need to Know About Title IX

While many people think of Title IX as a law that applies only to students, in fact the law does not mention students at all. The language of the statute is: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Professors, teachers, and other employees of educational programs are protected by Title IX, and also have obligations under Title IX not to engage in actions that constitute sex-based discrimination or harassment.

Title IX Protects Employees from Discrimination and Harassment

As I have previously discussed, Title IX protects school employees from gender-based harassment or discrimination. The current federal regulations implementing Title IX make explicit that Title IX prohibits employment discrimination on the basis of sex, stating “A recipient shall make all employment decisions in any education program or activity operated by such recipient in a nondiscriminatory manner.” While there has been some disagreement among different federal courts about whether employees can bring Title IX claims if they also have claims under Title VII (the federal law prohibiting discrimination in employment more generally), the majority of appeals courts have found that employees can bring claims under both laws. The Department of Justice’s Title IX Legal Manual makes clear that that Department agrees with the circuits that have found that employees can pursue both Title IX and Title VII claims: “The Department takes the position that Title IX and Title VII are separate enforcement mechanisms. Individuals can use both statutes to attack the same violations.” Here in Massachusetts, both the First Circuit, in a case from 1988, and a judge in the District of Massachusetts in a case last year, have held that Title IX claims are not preempted by Title VII claims, and school employees can pursue both claims simultaneously. CONTINUE READING ›

Racial Discrimination and Harassment in School

Published on: September 1, 2022 | by Naomi Shatz

pexels-cdc-3992949-scaled In the last year or so, I have gotten many calls from families whose children have been harassed and discriminated against in school because of their race. Repeatedly, I am hearing that students of color, often in predominately white schools, are being called the n-word by their classmates and targeted for bullying and harassment. I am hearing that these schools are disproportionately disciplining those students of color, often for vague and subjective offenses. Even more concerning, some of these families have told me that when they have reported their children’s harassment to school officials, those officials have recognized that they have a problem with white students harassing and bullying students of color but have claimed not to know how to address or prevent the harassment. Harassment and discrimination against students of color violates both federal and state laws, and schools have an obligation to take steps to address it.

Federal Anti-Discrimination Laws

Title VI is a federal law that prohibits discrimination on the basis of race, color, or national origin in any education program that receives federal funding. This includes all public K-12 schools, private K-12 schools that participate in federal programs like the National School Lunch Program, and almost all colleges and universities. Under Title VI, schools have an obligation to address racial harassment that interferes with students’ ability to access their education.

Back to School Basics: What To Do When the (Campus) Police Come Calling

Published on: August 31, 2022 | by David Duncan

Colleges and universities are starting their fall semesters, and orientation for incoming freshmen is well underway at many schools. One area that is not likely to be covered in orientation is students’ rights in encounters with police. While most students go through their entire college career without interacting with police, if you do, you should know what rights you have. This blog will discuss those rights in the context that is the most likely one where students might interact with police (sexual misconduct matters), but the rights you have apply to any interactions, on or off campus. You should know those rights. Just as important, you should know the limits of those rights. CONTINUE READING ›

Can Decision-Makers Rely on Harassing Statements by the Respondent as Evidence in a Title IX Proceeding?

Published on: May 27, 2020 | by Naomi Shatz

In a previous post, I discussed a confusing provision of the new Title IX regulations that prohibits decision-makers from considering statements by parties or witnesses who do not undergo cross-examination at the live hearing. One question that this provision has raised is what happens when the respondent’s statements are the harassment at issue? For example, in a quid pro quo harassment case if a professor e-mails a student saying “if you sleep with me I will give you an A,” and then refuses to undergo cross-examination, do the regulations prohibit the decision-maker from considering the e-mail as evidence? In a hostile environment case, if a student sends sexually harassing text messages to another student, will those messages be excluded if the respondent does not submit to cross-examination?

The preamble to the new regulations says the word “statements” has its ordinary meaning (whatever that may be), but does not include evidence that “do [sic] not constitute a person’s intent to make factual assertions.” The regulations themselves provide no explanation of what statements count as “statements” under the regulation, and the preamble does not explain how to determine what evidence constitutes an intent to make factual assertions. This portion of the preamble seems to be a botched attempt to create something analogous to the evidentiary rules on hearsay, which define hearsay at out of court statements admitted “for the truth of the matter asserted.” Under the federal and state rules of evidence, if a party introduces an out of court statement for a reason other than to prove the truth of what is asserted in the statement, it is not hearsay, and is therefore admissible. The rule of evidence focuses on how the party trying to admit the statement wants to use it; the Title IX regulation focuses on the intent of the speaker of the statement when the statement was made.

New Title IX Regulations Create Confusing “Hearsay” Rules for Colleges

Published on: May 27, 2020 | by Naomi Shatz

One of the most confusing and controversial provisions of the new Title IX regulations is a provision that bars the decision-maker from considering any statement by a party or witness who does not submit to cross-examination at the hearing:

“If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.”

This provision imposes a blanket ban on considering statements made outside the hearing if the party or witness does not submit to cross-examination. In real court proceedings, there is an entire body of evidence law that addresses when and how out of court statements can be relied on at trial. For example, in a criminal case the prosecution can often rely on “fresh complaint” evidence (statements a victim of sexual assault made shortly after the assault), whether or not the victim testifies at trial. If parties refuse to testify at trial, statements they previously made that are counter to their own interests can be admitted—which would allow a court to consider an alleged sexual assailant’s admissions or inculpatory statements, and also allow a court to consider any statements a complainant or victim made that suggest any part of his/her account was fabricated or inaccurate. In real court hearings, out-of-court statements are also frequently used not to prove the truth of the statements themselves, but to call into question the credibility of a party or witness. The Title IX regulation indicates that statements made by a party cannot be used even for this purpose if the party does not submit to cross-examination.
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What is the impact of the narrowed definition of “sexual harassment” under the new Title IX regulations?

Published on: May 12, 2020 | by Monica Shah

One of several controversial revisions to the new Title IX regulations issued by the Department of Education (DOE) is the change to the definition of “sexual harassment.” The regulations significantly narrow the scope of Title IX’s definition of sexual harassment, making it less expansive than the workplace standard for sexual harassment under Title VII and related state anti-discrimination laws. The DOE has justified this dramatic redefinition of sexual harassment based on concerns that Title IX enforcement has been overbroad and, as a result, has applied to conduct that may implicate free speech and academic freedom concerns. The DOE also supports the revisions by claiming that they clarify and provide more explicit guidance to schools about what conduct constitutes sexual harassment for Title IX purposes. The new regulations may provide more clarity in the most egregious circumstances involving quid pro quo sexual harassment and conduct that constitutes sexual assault, dating violence, domestic violence, or stalking under the Clery Act (the federal law requiring United States colleges and universities to disclose information about crime on and around their campuses). However, the revised definition raises serious questions for complainants about whether other conduct—such as some forms of physical contact, verbal sexual harassment, or gender-based (non-sexual) or LGBTQ-based harassment—will be prohibited under Title IX.

Definition of Sexual Harassment Under Prior Law

Under prior guidance, the DOE defined sexual harassment as “[c]onduct of a sexual nature [that] is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program, or to create a hostile or abusive educational environment.” This definition broadly included a variety of conduct that could interfere in a student’s ability to participate in school, ranging from physical conduct such as rape, groping, and other nonconsensual sexual contact to verbal harassment.

New Title IX Regulations Require Live Hearing and Cross Examination, Upending Current School Adjudication Models

Published on: May 7, 2020 | by Ruth O'Meara-Costello

Cross examination rights in Title IX campus cases have long been hotly contested—both in litigation challenging the adequacy of school sexual misconduct proceedings and in the public debate about how colleges and universities should handle allegations of sexual misconduct. This week’s newly issued Title IX regulations have attempted to find a middle path: they require schools to hold live hearings and permit cross-examination, but only if it is conducted by advisors rather than by the parties themselves.

Until now, the rights of the parties in campus sexual misconduct cases to question each other and witnesses have been highly variable. (Generally respondents accused of sexual misconduct and their advocates have pushed for these rights, while groups advocating for complainants have opposed them, but it’s worth noting that the regulations grant the same rights to both parties.) State and federal courts in different parts of the country have taken sometimes very different positions on whether some form of cross-examination is required under the Constitution, Title IX, or state law, and, if so, what that cross-examination has to look like. In general, the decisions granting such a right have been limited to students of public institutions, who have constitutional due process rights that students at private schools do not have.