Allegations of sexual assault on campus involving students of different colleges are very common. My experience representing students involved in such proceedings has typically been that if a college is presented with an allegation that one of its students has sexually assaulted, harassed, or abused another person, the college will investigate that allegation, regardless of whether the complainant is a student at that college, an alumnus of the college, or an individual with no connection to the institution. (This can vary depending on the terms of the college’s Title IX policy, but most policies at least allow for such investigation.) The college’s ability to provide complainants who are not its students with some types of help may be limited—it probably cannot meaningfully offer academic accommodations, for example—but it can and (again, in my experience) usually does proceed to investigate the allegations and mete out any discipline that it concludes is warranted. A ruling by the First Circuit Court of Appeals in one recent lawsuit suggests that there are limits on colleges’ obligations to complainants in such situations, but in my view it is unlikely to result in dramatic changes in most colleges’ practices.
In this series, I look at some of the protections afforded by Title IX that have not gotten as much attention in the media or political arena as have 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 non-sexual sex-based harassment. Part 3 looked at Title IX and dress codes. Part 4 covered when Title IX applies to religious schools.
Teen pregnancy has long been a subject of public health concern, political debates, and more recently, popular reality TV programming, but the legal issues surrounding it have not garnered much attention. Title IX prohibits sex-based discrimination in schools. In 1975, three years before pregnancy discrimination in employment would be prohibited by the Pregnancy Discrimination Act, the Department of Health, Education, and Welfare (now the Departments of Education and Health and Human Services) issued regulations implementing Title IX that included a prohibition on discrimination against students based on marital or parental status. One provision specifically states: “A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy or recovery therefrom.”
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.
The Senate’s final version of the bill more or less tracks the Obama-era guidance on sexual misconduct; guidance that was revoked by the U.S. Department of Education in September. Despite various individuals and groups (myself included) testifying to the Massachusetts legislature in April about the need for procedural protections for both the complainant and accused in these cases, the Senate bill focuses exclusively on the needs of complaining students, without providing procedural protections to both students that would enhance transparency and ensure that each student can adequately advocate for him/herself.
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
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
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
In the world of disciplinary hearings under Title IX, the process for students accused of sexual harassment or sexual assault on campus often begins this way: an accused student (the “respondent” in campus disciplinary parlance) is called into a meeting with a school administrator and informed of a disciplinary charge that could result in expulsion. At most schools, the information that the school provides about the actual charge consists of the date of the alleged event (or a range of dates); the identity of the complainant (the student who is making the accusation) and the provision of the student code that the respondent allegedly violated, or another summary description such as “non-consensual sexual conduct.” In practice, this information is often not sufficient to allow the respondent to identify the actions that the school is investigating, particularly where the allegations stem from a long-term romantic relationship with the complainant, much less to prepare a defense. It also may not give respondents adequate notice to allow them to evaluate whether they may face criminal charges, and make informed decisions about whether to waive their 5th Amendment right to remain silent by making statements during the school’s investigation.
Earlier this month, my colleague blogged about concerns that a weaker federal Department of Education (DOE) in the Trump Administration would mean less protection against discrimination and harassment for minority students. Under Obama the DOE took strong, sometimes controversial, positions in the name of anti-discrimination, for example, issuing numerous guidance documents instructing schools on how to address sexual harassment and sexual assault, and interpreting Title IX to protect transgender students. In the views of its critics, DOE often went too far in issuing these rules, both because it circumvented the normal rule-making procedures for administrative agencies, and because in many instances its guidance letters seemed to directly conflict with the free speech and due process rights of students.
It seems safe to assume that sexual harassment prevention is not high on Trump’s priority list. During the presidential campaign videos surfaced of him discussing sexually assaulting women and more than a dozen women came forward to accuse him of having done just that, and his sons — who played key roles in his campaign — have both indicated that women who do not like being sexually harassed either should not work, or should find a different job. Given that fact, and his stated antipathy to the DOE, it seems quite likely that his administration will do an about-face on both the scope of the DOE’s work, and its positions on key title IX issues. But will the administration’s positions change anything on campus?
I previously wrote about a Massachusetts federal district court decision that was groundbreaking because it tackled the question of whether a private university’s sexual misconduct investigation and disciplinary procedure was fundamentally fair, and concluded that it was not. Last week another local federal court weighed in on the college sexual misconduct issue and found in favor of the accused student, but went in a distinctly different legal direction.
John Doe v. Brown University is one of the few cases on this issue to proceed all the way to trial. The case arose out of a November 2014 sexual encounter between John Doe and Ann Roe. Roe complained about the incident in November 2015, and the case was heard by Brown in 2016. Notably, in fall 2015 Brown adopted a new Title IX policy that contained Brown’s first definition of consent, and a new process for handling sexual misconduct cases. While Brown informed its investigator and panel that the case against Doe would proceed under the 2014-2015 policy that was in effect at the time of the incident, Brown also provided the panel with the 2015-2016 policy and specifically told the panel that that policy codified the community’s understanding of consent, so they could look to it if it assisted them. Continue reading
Six months ago a judge in the federal district court in Massachusetts issued what many people who litigate cases surrounding college sexual assault adjudications consider the most comprehensive decision on the topic. In Doe v. Brandeis University, Judge Dennis Saylor denied Brandeis University’s motion to dismiss the complaint by its former student as to claims that Brandeis breached its contractual duties towards him, handled his case with negligence, and used a fundamentally unfair process to evaluate the accusation against him.
The case arose out of a January 2014 sexual assault complaint against John Doe by his former boyfriend. Under Brandeis’ policy, the complaint was investigated by a Special Examiner who also decided whether John Doe was responsible for sexual assault. (This “single investigator” model, promoted by the White House, has gained significant traction with schools nationwide in the last three years, despite significant concerns about its fairness).
Despite noting that “the Handbook is no model of clarity,” the judge nonetheless found for Brandeis on most of the contract claims based on Doe’s allegations that Brandeis failed to follow its Handbook. The judge similarly rejected most of Doe’s tort claims, with the exception of a claim for negligent supervision based on Brandeis assigning an administrator with no familiarity with the process as the final decision maker in the case. The judge was skeptical that Doe could prevail on the claim, but allowed it to survive the motion to dismiss. Continue reading