Student Rights & Title IX

In Haidak v. University of Massachusetts the First Circuit Fails to Grapple with the Messy Factual Realities of Campus Title IX Cases

Published on: August 15, 2019 | by Naomi Shatz

Last week the U.S. Court of Appeals for the First Circuit released its second decision in the last few years addressing campus sexual misconduct disciplinary proceedings. In Haidak v. University of Massachusetts-Amherst, the First Circuit largely found for the University, concluding, as my colleague recently discussed, that the procedures it applied in Mr. Haidak’s case were sufficient to pass constitutional muster.

In writing about these campus disciplinary proceedings, the court glossed over the factual realities of these cases and made some concerning statements that—if schools were to adopt them as policy—would undermine students’ rights.

First Circuit Decision in Haidak v. University of Massachusetts Includes Limited Progress for Due Process at Public Universities

Published on: August 7, 2019 | by David Russcol

On August 6, 2019, the U.S. Court of Appeals for the First Circuit released a decision that strengthens the due process requirements applicable to discipline at state universities, but does not go as far as other courts such as the Sixth Circuit, which has forcefully affirmed a due process right to cross-examination on issues of credibility. In Haidak v. University of Massachusetts-Amherst, the First Circuit largely found the University of Massachusetts-Amherst (UMass) procedures adequate as they were applied in the specific case before it, but adopted a requirement for some form of real-time cross-examination sufficient to address the key facts and issues in a student’s case. The court also emphasized the need for a state college to provide a student with due process for even an interim suspension – and only in the case of a real emergency can that process occur after the suspension.

Massachusetts Legislature Considers New Campus Sexual Misconduct Laws (Part 2)

Published on: April 3, 2019 | by David Russcol

In our last post, we assessed the provisions and potential impacts of two of the campus sexual misconduct bills that will be considered by the Massachusetts Legislature in an upcoming hearing on April 9. In this post we are focusing on several of the other bills that will be up for debate, including one that would require a school to label a student’s transcript as soon as he or she is accused of certain criminal acts and another that would mandate sexual harassment training for all Massachusetts college and university students, faculty, and staff.

Massachusetts Legislature Considers New Campus Sexual Misconduct Laws (Part 1)

Published on: April 2, 2019 | by Naomi Shatz

There are six bills addressing campus sexual assault that will be discussed at a public hearing of the Massachusetts Joint Committee on Education next week. Two years ago, the Massachusetts legislature held hearings on a collection of bills that addressed different aspects of the issue of campus sexual assault. Although the Senate later passed a bill dictating how schools should handle sexual assault allegations, that bill never made it to the Governor.

The various bills have been edited and re-filed and will be heard at a public hearing on April 9. Both in testimony to the Joint Committee on Higher Education and on this blog we laid out concerns with the previous versions of these bills, having to do with lack of transparency, notice, and ensuring that complaining and responding students had access to the same resources.

How Would Cross-Examination Under the Department of Education’s Draft Title IX Regulations Work?

Published on: November 16, 2018 | by David Russcol

On November 16, 2018, the U.S. Department of Education released draft regulations that would significantly reform Title IX requirements for schools in dealing with sexual harassment and sexual assault on campus. Naomi Shatz has tweetstormed initial summaries and analysis of key features of the draft regulations. There is a lot to unpack in the regulations, and we will undoubtedly have more to write about them in the coming weeks. They also may change before they become final; this publication is the start of a 60-day public comment period, after which the Department of Education must reconsider and respond to input from the public before the regulations become effective. However, once the regulations are finalized, they will have the force of law and will be difficult to change, so it is very important to focus on what is in the draft now.

What is the Future of a Right to Confrontation in Campus Title IX Proceedings? New Draft Federal Regulations and Holdings in the Sixth Circuit Point in Different Directions.

Published on: September 21, 2018 | by Ruth O'Meara-Costello

In recent weeks, potential new draft regulations from the Department of Education’s Office for Civil Rights (OCR) have garnered considerable media attention, despite not being yet released. Last week the full text of those draft regulations was leaked to the public. Among several other notable changes to current practice at most colleges and universities (detailed in my colleague Naomi Shatz’s tweets after we first got our hands on the draft regulations), the draft would require a significant increase in respondents’ rights to cross-examine their accusers and other witnesses. Meanwhile, in the past months, the Sixth Circuit Court of Appeals has focused in a string of decisions on whether respondents in Title IX cases at public schools have a due process right to confront and cross-examine their accusers, and recently issued a new decision, in Doe v. University of Michigan making the strongest statement we have seen yet from any court of appeals in favor of cross-examination. The regulations and the Sixth Circuit’s decision are both plainly intended to increase the rights of accused students, yet they offer schools very conflicting guidance about how to do so. In addition, the regulations could have significantly unintended consequences in practice.

Advice for Parents of Incoming College Students: What You and Your Child Need to Know About Sexual Assault and Harassment

Published on: August 30, 2018 | by Monica Shah

Labor Day Weekend is upon us and millions of college students across the country will be beginning their fall terms, including many first-year students who have just become adults and have spent little time away from their families or communities. If you are a parent of an incoming student, you may be helping your child pack, stock up on ramen, move into their dorm, and get oriented to a sprawling and likely overwhelming college campus. While you are preparing your child for a new stage of their life and hopefully independence and responsibility, this is the time to familiarize yourself with the college’s policies on sexual assault, harassment, and other misconduct. While the U.S. Department of Education (DOE) is working on passing new regulations related to sexual misconduct on campus (for a summary see one of our lawyer’s comments here), no formal changes have taken effect to date and therefore it is important to ensure that your child is aware of their school’s specific rules and knows their rights and responsibilities, as well as the risks of any criminal exposure that may arise from sexual behavior. CONTINUE READING ›

Doe v. Boston College: The First Circuit Allows an Accused Student’s Claims to Proceed to Trial, But Dodges the Big Questions

Published on: August 6, 2018 | by Ana Muñoz

Until this spring, the First Circuit had not decided many major student discipline cases in over thirty years. In June, the Court handed down its long-awaited decision in Doe. v. Trustees of Boston College.

The case concerns an alleged sexual assault that took place on a dance floor in 2012. A female student – “A.B” – was assaulted at a party on a boat sponsored by a Boston College student organization; she felt someone put fingers up her skirt and touch her without her consent. She identified Doe as the assailant. But Doe denied the charges – and eventually presented video evidence that suggested another student – J.K. – had committed the act. Indeed, the video was so convincing that the Middlesex County District Attorney dropped the criminal charges against Doe. Yet, after a series of procedural irregularities, a Boston College disciplinary panel found Doe responsible for the assault and he was suspended from the college. Two years later, the school agreed to review the case after his parents asked the President to look into it, but ultimately declined to change its conclusion. Doe and his parents sued.

Do Colleges Have to Investigate Sexual Assault Claims By Students from Other Schools?

Published on: July 27, 2018 | by Ruth O'Meara-Costello

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.

Beyond Sports and Sex Part 5: Title IX and Pregnant and Parenting Students

Published on: May 31, 2018 | by Naomi Shatz

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.”