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On July 27, 2020, Naomi Shatz and Katherine Dullea published the following op-ed in Law360, discussing inequities in the bar exam and urging lawyers to consider whether maintaining the exam is useful for the profession. You can view the original article here, or download a PDF here.

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As schools revamp their Title IX policies by August 14 to comply with the recently-enacted federal regulations, information about how those policies might look is starting to come to light. In recent weeks, a number of schools have made clear that—as my colleague predicted when the regulations came out—while they will create policies to address conduct that falls under the federal aubrey-rose-odom-s9wRk6E83nc-unsplash-scaledregulations, they will also have policies that address sexual misconduct issues that fall outside of what the federal government regulates. Boston University recently offered some insight as to how it will approach sexual misconduct cases come fall. According to BU’s Title IX coordinator, Kim Randall, “[c]omplaints that fall under the new Title IX regulations, as noted above, will be investigated using the procedures required by the new regulations, which are very different from our existing procedures. Those complaints that do not fall under Title IX will be investigated using procedures similar to those currently in place.” Having two separate policies that address sexual misconduct is likely to raise a host of issues that schools need to plan for before imposing those policies on students and faculty. Looking at how cases may be handled under BU’s proposed policies illustrates the issues schools will face if they choose to have two different sexual misconduct procedures.

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jonathan-chng-3R4vPrSB1c4-unsplash-scaledLast month, the U.S. Department of Education (DOE) issued a letter to the Connecticut Interscholastic Athletic Conference (CIAC) and a number of Connecticut schools notifying them that their policy allowing transgender student athletes to play sports on the team that corresponds with their gender violates Title IX, and giving them until June 4 to come into compliance with the law. The DOE’s interpretation of how Title IX applies to transgender students is an about-face from previous interpretations it has issued, and from the interpretation many courts have given to Title IX.

As I described last year, an advocacy organization purporting to focus on religious liberty issues (the Alliance Defending Freedom (ADF))  filed a complaint with the DOE arguing that cisgender female athletes in Connecticut were being discriminated against under Title IX—the federal statute that prohibits sex-based discrimination in schools—because transgender female athletes were permitted to play on girls’ sports teams. The ADF has filed numerous such complaints and lawsuits arguing that when schools refuse to discriminate against transgender students, they are discriminating against cisgender students.

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US-DOE-seal-300x300In 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.

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US-DOE-sealOne 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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US-DOE-sealThe new Title IX regulations that were released yesterday impose detailed requirements schools must follow to address complaints of sexual harassment, including sexual assault. Until now, under Title IX schools were left to their own devices to develop grievance procedures, the only regulatory requirement was that those procedures be “prompt and equitable.” In recent years schools’ processes for assessing complaints of sexual harassment have been the source of increasing litigation, as students who feel the disciplinary process was unfair sue their schools for violations of Title IX or state law.

As we have previously discussed on this blog, a number of courts have wrestled with what makes a school disciplinary procedure fair enough (generally addressing this question under state laws that require something like fundamental fairness in these processes.) Some courts have noted that the impairment of a student’s right to present evidence is a factor that could lead a school process to be found fundamentally unfair. In my experience, representing students in Title IX cases across the country, school policies have varied widely in terms of what evidence they will permit. While some schools have allowed students to present expert witness testimony or reports, others exclude such evidence. Some schools allow their investigators to seek out information from their own “expert” witnesses (often members of the school’s health services center), while others restrict investigations to fact evidence. Some schools allow students to submit the results of polygraph tests, others exclude that evidence.

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Partner Naomi Shatz offers her expertise on the new federal regulations issued by the U.S. Department of Education on May 6, 2020. These new regulations dictating how colleges and universities must handle claims of sexual harassment and assault under Title IX will go into effect on August 14, 2020. Click here to read the article and here to read her blog post about the regulations.

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US-DOE-sealToday the U.S. Department of Education released its long-awaited regulations implementing Title IX. The regulations require a complete overhaul of how schools currently handle allegations of sexual harassment and sexual assault, and dramatically limit schools’ responsibilities to address those claims.

By way of background, in 2011 the Obama administration issued a Dear Colleague Letter that provided guidance to schools (K-12 and post-secondary) on how to address sexual harassment. That letter was not binding law, but because the Department of Education could withhold federal funding from any school that did not comply with it, schools revamped their processes for addressing complaints of sexual harassment and sexual assault to meet the standards set out in the letter. After Donald Trump took office, the Department of Education rescinded that guidance, and in 2018 issued proposed regulations that were published for public comment. Today, the final version of those regulations, and commentary addressing the public comments, was released.

What follows is a brief overview of some of the major provisions of the new regulations, which take effect August 14, 2020.

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woman-in-blue-sweater-lying-on-bed-3873179-scaledIf you have been exposed to COVID-19 or have COVID-19, the last thing you want to worry about is your workplace rights and obligations. However, both you and your employer have certain rights and obligations to ensure your health and safety, and the health and safety of people you come into contact with at work.

What do I do if I’ve been exposed, tested positive, or have symptoms of COVID-19?

The Massachusetts Attorney General has made clear that employers can require employees who have been exposed or have a family member who has been exposed to stay out of work, even if quarantine has not been recommended. If you exhibit symptoms of COVID-19, your employer can also require you to stay out of work even if you have not tested for COVID-19. If your employer requires you to stay out of work, you are eligible to apply for unemployment benefits, and may also be eligible for the new paid sick leave benefits the federal government recently enacted.

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cdc-w9KEokhajKw-unsplash-scaledMy colleague recently explained how Massachusetts and federal leave laws may apply to employees who contract COVID-19 or who are medically required to self-quarantine because of concerns about COVID-19. In addition to leave laws, such as the Massachusetts earned sick time law and the Family and Medical Leave Act (FMLA)state and federal disability laws provide protections to employees. Disability laws also allow employers to require medical examinations and exclude employees from the workplace in certain circumstances.

The main state and federal laws that prohibit disability discrimination in the workplace are the Americans with Disabilities Act (ADA), the Rehabilitation Act, and Massachusetts General Laws ch. 151B. These laws provide similar protections and generally prohibit discrimination against an employee because of that employee’s real or perceived disability, or that employee’s history of having a disability. Disability laws also require employers to provide “reasonable accommodations” to disabled employees to allow them to perform their jobs. 

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