Title IX

What is the impact of the narrowed definition of “sexual harassment” under the new Title IX regulations?

Published on: May 12, 2020 | by Monica Shah

One of several controversial revisions to the new Title IX regulations issued by the Department of Education (DOE) is the change to the definition of “sexual harassment.” The regulations significantly narrow the scope of Title IX’s definition of sexual harassment, making it less expansive than the workplace standard for sexual harassment under Title VII and related state anti-discrimination laws. The DOE has justified this dramatic redefinition of sexual harassment based on concerns that Title IX enforcement has been overbroad and, as a result, has applied to conduct that may implicate free speech and academic freedom concerns. The DOE also supports the revisions by claiming that they clarify and provide more explicit guidance to schools about what conduct constitutes sexual harassment for Title IX purposes. The new regulations may provide more clarity in the most egregious circumstances involving quid pro quo sexual harassment and conduct that constitutes sexual assault, dating violence, domestic violence, or stalking under the Clery Act (the federal law requiring United States colleges and universities to disclose information about crime on and around their campuses). However, the revised definition raises serious questions for complainants about whether other conduct—such as some forms of physical contact, verbal sexual harassment, or gender-based (non-sexual) or LGBTQ-based harassment—will be prohibited under Title IX.

Definition of Sexual Harassment Under Prior Law

Under prior guidance, the DOE defined sexual harassment as “[c]onduct of a sexual nature [that] is sufficiently severe, persistent, or pervasive to limit a student’s ability to participate in or benefit from the education program, or to create a hostile or abusive educational environment.” This definition broadly included a variety of conduct that could interfere in a student’s ability to participate in school, ranging from physical conduct such as rape, groping, and other nonconsensual sexual contact to verbal harassment.

New Title IX Regulations Require Live Hearing and Cross Examination, Upending Current School Adjudication Models

Published on: May 7, 2020 | by Ruth O'Meara-Costello

Cross examination rights in Title IX campus cases have long been hotly contested—both in litigation challenging the adequacy of school sexual misconduct proceedings and in the public debate about how colleges and universities should handle allegations of sexual misconduct. This week’s newly issued Title IX regulations have attempted to find a middle path: they require schools to hold live hearings and permit cross-examination, but only if it is conducted by advisors rather than by the parties themselves.

Until now, the rights of the parties in campus sexual misconduct cases to question each other and witnesses have been highly variable. (Generally respondents accused of sexual misconduct and their advocates have pushed for these rights, while groups advocating for complainants have opposed them, but it’s worth noting that the regulations grant the same rights to both parties.) State and federal courts in different parts of the country have taken sometimes very different positions on whether some form of cross-examination is required under the Constitution, Title IX, or state law, and, if so, what that cross-examination has to look like. In general, the decisions granting such a right have been limited to students of public institutions, who have constitutional due process rights that students at private schools do not have.

New Title IX Regulations Allow Schools to Choose Standard of Proof

Published on: May 7, 2020 | by Ruth O'Meara-Costello

Yesterday, the Department of Education released final new Title IX regulations. Our office is addressing the regulations, which mandate significant changes to the way that most colleges and universities have been handling accusations of sexual assault and harassment, in a series of blog posts. This post addresses just one important issue as to which the regulations clarify schools’ options: the standard of proof that they can use to adjudicate complaints falling under Title IX.

While overall the regulations prescribe how allegations must be resolved with a fair amount of specificity, one area in which they have given the schools increased discretion compared to prior guidance is the standard of proof for resolving allegations. In a 2011 “Dear Colleague” letter, issued in a different presidential administration, the Department’s Office for Civil Rights (“OCR”) required schools to use the “preponderance of the evidence” standard to determine whether or not a respondent was responsible for sexual harassment or assault. A preponderance of evidence means, essentially, that the evidence establishes that something is more likely than not to have occurred.

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.

Doe v. University of Cincinnati: The Sixth Circuit Weighs in on Title IX and Due Process

Published on: October 13, 2017 | by Ruth O'Meara-Costello

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 ›

Are Universities’ Views of Sexual Harassment on a Collision Course with the First Amendment?

Published on: April 8, 2016 | by Naomi Shatz

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 ›

What Does It Take to Challenge a University’s Wrongful Disciplinary Decision Under Title IX?

Published on: April 24, 2015 | by David Russcol

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.