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On November 2, 2017, the Massachusetts Senate unanimously passed a bill that would dictate how colleges and universities in the Commonwealth must handle sexual assault allegations. As a mecca for higher education, with over 100 colleges and universities, Massachusetts could have been a leader in tackling campus sexual assault in a way that both protects the educational rights of victims of assault, and provides fair procedures to both victims and the accused. The bill that just passed, unfortunately, fails to achieve this goal.

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In this series, I look at some of the protections afforded by Title IX that have received less attention in the media and political arena than Title IX’s applications to equity in athletics and campus sexual assault. Part 1 looked at Title IX’s protection against employment discrimination. Part 2 examined how Title IX protects students from harassment based on sex stereotyping.

Title IX prohibits educational programs that receive federal funding from discriminating on the basis of sex. Because discrimination by definition means treating one person differently from another, there are only a few limited areas in which schools can draw explicitly gender-based distinctions and not run afoul of Title IX.

One area where schools have historically had explicitly gendered policies is in their dress codes.  When Title IX was initially enacted, the implementing regulations prohibited sex distinctions in “rules of appearance.” This regulation seemed to squarely prohibit the implementation of gender-specific dress and grooming codes. However, the Reagan administration revoked those regulations in 1982, fewer than ten years after they had been issued, indicating that differentiating on the basis of sex in “rules of appearance” might very well be permissible under Title IX.

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In this series, I look at some of the protections afforded by Title IX that have received less attention in the media and political arena than Title IX’s applications to equity in athletics and campus sexual assault. Part 1 looked at Title IX’s protection against employment discrimination.

To those people who have been following the social movement around campus sexual assault (and this blog), it may be clear by now that Title IX prohibits sexual harassment–that is, harassment that is sexual in nature. But Title IX also prohibits sex and gender-based harassment–that is harassment of someone because of their sex, whether or not the nature of the harassment is sexual. Courts have relied on case law developed under Title VII, which prohibits employment discrimination, to hold that Title IX prohibits harassment against students simply because of their sex. For example, the Eighth Circuit has held that Title IX prohibits harassment where “the underlying motivation for the harassment is hostility toward the person’s gender.” Continue reading

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The last two years have been exceptionally active for defamation cases in matters involving allegations of sexual harassment or assault. Just during the last week, for example, a lawyer for Harvey Weinstein announced that he intends to sue the New York Times following an explosive story alleging he has sexually harassed actresses and workers at his company for years. (That story was quickly followed by an even more damning story in The New Yorker; that story’s author, Ronan Farrow, reports that Weinstein has also threatened him with suit.) In cases involving the same legal principles and similar allegations—but the opposite party alignment—a number of Bill Cosby’s accusers are suing him for statements that they say paint them as liars (and at least one such suit has been allowed to move forward, though two others have been dismissed; the judge overseeing the cases drew a distinction between statements that disputed an accuser’s credibility based on disclosed, non-defamatory facts, and statements that implied the existence of non-disclosed defamatory facts). And a disastrously poorly fact-checked story published in Rolling Stone about an alleged rape at the University of Virginia has spawned a series of lawsuits and, most recently, an interesting opinion by the Second Circuit Court of Appeals concerning the viability of a lawsuit by UVA students who claimed that the article defamed them. Continue reading

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The Sixth Circuit Court of Appeals recently decided Doe v. University of Cincinnati, upholding a preliminary injunction preventing the University of Cincinnati from suspending a student it found responsible for sexual assault. The decision is significant for all students facing suspension or expulsion at public colleges and universities.

In the underlying case, two students met on Tinder, then met up in person and had sex. The complainant, Jane Roe, alleged that the sex was not consensual; the respondent, John Doe, insisted that it was. The university followed a procedure that many colleges, public and private, employ: it first tasked an employee of the Title IX office with conducting an investigation in which she interviewed witnesses and gathered evidence from both sides, and then prepared a report. Following the investigation, the university held a hearing where both students had the opportunity to appear before a panel that would render a decision as to whether John Doe was responsible for sexual misconduct. During that hearing, the accused student was supposed to have the ability to present written questions to the hearing chair and request that they be posed to the complainant. Per the university’s policy, a witness who was unable to appear could submit a notarized statement. Continue reading

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In this series, I look at some of the protections afforded by Title IX that have received less attention in the media and political arena than Title IX’s applications to equity in athletics and campus sexual assault.

The common conception of Title IX is that it is a law aimed at protecting students. That conception is too limited. Title IX’s reach is broader than the student body—it is directed at the educational program that receives federal funds, and broadly prohibits discrimination in such programs. The language of the statute states: “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.” Federal Regulations promulgated by the Department of Education make clear that Title IX prohibits employment discrimination in educational programs. 34 C.F.R. § 106.51 et seq. Continue reading

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One fall evening in 2009, four men met up at one Timothy Brown’s apartment.  They had earlier been driving around together when two of them, Hernandez and Hill, decided to rob two women at gunpoint.  Hernandez, who had brandished a gun during the robbery, hid it in Brown’s kitchen when they arrived at the apartment.  In the early hours of the next morning, three more men arrived with a proposal to rob two drug dealers.  These three and Hernandez agreed to the second robbery and left in a car.  Before they left, Hernandez retrieved his gun and they asked Brown for hooded sweatshirts to cover their faces and for the loan of his handgun.  Brown provided them with the clothing and gun.  Continue reading

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Whether you are heading off to your first year of college, or are returning for your fourth (or sixth, or ninth) year of higher education, you are likely aware that sexual assault prevention is a big issue on college and university campuses today. We represent complainants and respondents in sexual misconduct proceedings in colleges and universities around the country. As attorneys who specialize in the field of campus sexual assault law we have information that all students should know before heading back to campus.

What is Title IX, and What Does It Mean for my School?

Title IX is the federal law that prohibits discrimination on the basis of sex in education. In addition to ensuring that there are equal athletic and educational opportunities for all students, it also requires schools to address and take steps to prevent sex-based discrimination on campus, including sexual harassment and sexual assault. If a school knows of sex-based discrimination on campus and does not adequately respond to it, a court may find the school has violated Title IX. Continue reading

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Yesterday, Boston Police Commissioner William B. Evans sent a message of warning to Boston-area college students ahead of a planned “Free Speech” rally and numerous counter-protests. He told college students “please act in a way that would make your school, your family, and your city proud and please respect our neighborhoods. Student behavior off campus will be regarded the same as if it were on campus.”

College students are subject to the laws of Massachusetts just like any other person in the state. If college students engage in illegal behavior at Saturday’s rallies, they can be arrested and prosecuted. But college students are also subject to the student conduct rules of their respective universities. Under Massachusetts law, those handbooks form the basis of a contractual relationship between the student and the college. Both students and colleges must abide by the rules set forth in the handbook; schools cannot punish students for behavior that is not prohibited by their policies. While Commissioner Evans can encourage students to act responsibly, he cannot dictate that schools expand those rules to cover off-campus actions if they do not already do so. Continue reading

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In Barbuto v. Advantage Sales and Marketing, the Supreme Judicial Court recently blazed a trail as the first state high court to extend state employment protections to medical marijuana users where those protections were not explicitly spelled out in the medical marijuana statute. The SJC unanimously gave the green light to discrimination claims by those who use medical marijuana under state law but then are punished by employers. There are limits to the court’s holding; for instance, the medical marijuana statute specifies that employers do not need to accommodate on-site use of marijuana, and an employer can still take adverse actions by meeting the high burden of showing an “undue hardship” for tolerating off-site marijuana use. But many patients who consume marijuana to treat debilitating medical conditions like cancer or, like the plaintiff Barbuto, Crohn’s disease, will get some relief by not having to choose between effective treatment and keeping their jobs.

In Barbuto, the plaintiff was hired subject to a drug test and started working. She informed her employer that she would test positive for marijuana because she used it for medical purposes according to state law because she suffered from Crohn’s disease. The hiring manager told her that would not be a problem, but after the test came back positive, she was fired by a manager who told her “we follow federal law, not state law.” (Any use or possession of marijuana remains illegal under federal law, although for several years Congress has prohibited federal authorities from spending money to interfere with state medical marijuana laws.) The plaintiff brought suit claiming, among other things, disability discrimination, and the lower court dismissed her case.

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