Vox.com interviews ZDB Attorney Naomi Shatz on new Title IX guidelines. Shatz praises elements of the new guidelines that provide more clarity and transparency to students, but notes there is still work to be done to ensure that schools adequately address hostile environments while respecting the rights of accused students. Read the full story here.
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
As explained in Jacob Gersen and Jeannie Suk’s forthcoming article, The Sex Bureaucracy, the U.S. Department of Education’s Office for Civil Rights (“OCR”) guidance documents about Title IX have shaped college and university sexual harassment and sexual assault policies by threatening the withdrawal of federal funding if the schools do not adopt OCR’s recommendations. OCR has defined sexual harassment as “unwelcome conduct of a sexual nature,” but made clear that under Title IX schools only have an obligation to address such harassment when it rises to the level of creating a hostile environment, which it defines as harassment that “is sufficiently serious that it interferes with or limits a student’s ability to participate in or benefit from the school’s program.” This definition of sexual harassment provides the floor below which school’s policies may not fall, but nothing in Title IX or OCR guidance prevents schools from adopting even more expansive definitions of sexual harassment or standards under which they will investigate allegations of such harassment.
Recently, OCR has emphasized that it expects colleges and universities to investigate claims of sexual harassment well before they reach the threshold at which Title IX requires the school to address the harassment, i.e. before the harassment creates a hostile environment. Continue reading
Title IX is a federal law that bans gender discrimination in educational programs that receive federal funds (e.g., almost all college and universities). The Department of Education has interpreted Title IX to require schools to take swift and decisive action in response to complaints of sexual harassment or assault by or against students. In theory, Title IX requires schools to provide a “prompt and equitable” (that is, fair) process for deciding these cases, but in practice these processes are often heavily stacked against the accused student. Although students who are accused of sexual harassment or assault have tried to use Title IX to enforce their rights to a fair disciplinary process, courts have generally not been receptive and have often dismissed them at early stages. I will take a look at a recent decision on one such case and explore why that is.
In Doe v. Columbia University, a male Columbia student calling himself John Doe alleged that he had been wrongly suspended for sexual assault, in violation of Title IX and other laws. According to his complaint (which, at the earliest stage of a lawsuit, is essentially accepted as true), he ran into a female friend (Jane Doe) while studying one night. After taking a walk for an hour, they decided to have sex, and because their roommates were home (and Jane had dated John’s roommate previously), they decided to do so in the dorm bathroom. John waited in the bathroom while Jane got a condom from her room, they had sex, and John went back to his room.