One month has now passed since the new Title IX regulation took effect on August 14, 2020.[1] According to this historic civil rights regulation, schools receiving federal funding must now provide students with, among other procedural protections, live hearings and the opportunity for real-time cross examination through an advisor. The Office for Civil Rights (OCR) has stated that the regulation only will be enforced as to conduct that occurs after the effective date,[2] and that schools are free to handle “non-Title IX” misconduct on their own terms.[3]
Some schools, as discussed by Teresa Manning at National Review, “are devising their own sexual-misconduct policies, presumably with their own definitions, separate from Title IX.”[4] Princeton and Tulane, for example, have created multiple disciplinary tracks where the regulation’s procedural protections are afforded for some types of sexual misconduct but not for others.[5] This is an attempt to defy the regulatory intent to restore due process protections on campus.
Unfortunately for these recalcitrant universities, there is another branch of government that vigorously enforces due process rights: the judiciary. Students often go to court if they believe they have been victims of Title IX discrimination, due process violations, or breach of contract. (Private universities are not subject to the Due Process Clause as they are not arms of the state. In many jurisdictions, however, the student handbook or code of conduct is a contract between the university and the student, and private universities can be sued for violating the procedures in those contracts.)
In these lawsuits, OCR’s limited regulatory definition of what is and what is not “Title IX Conduct” simply does not apply. Rather, schools are held liable if they discriminate “on the basis of sex.”[6] Indeed, whether the court uses the Yusuf framework of “erroneous outcome” and “selective enforcement,”[7] or the Purdue “plausible inference” standard to evaluate the allegation at the motion to dismiss stage, the fundamental question is whether the university discriminated on the basis of sex, not in which artificial “track” the discrimination occurred.
To this end, universities need to consider a string of milestone federal circuit court decisions issued in the last several months that were favorable to accused students.
First, the Third,[8] Eighth,[9] and Ninth[10] Circuits have now adopted the Seventh Circuit’s Purdue plausible inference pleading standard, which means that in four of the 12 regional circuits across the country, accused students now have a much easier time suing for Title IX discrimination. This is a dramatic change in the law; this easier standard did not even exist as of June 2019. Now, roughly a third of the nation’s federal courts have adopted it.
Second, the Sixth Circuit in Oberlin was the first circuit court to hold that the outcome of a disciplinary proceeding itself can be used as evidence of discrimination for purposes of Title IX.[11] This means that for the vast majority of students that do not have direct evidence of discrimination pre-discovery (because the university typically wants to keep its email communications secret), students in the Sixth Circuit can use their adverse outcome as a way to get to the discovery phase, allowing access to internal university communications, provided that the student is able to cast “grave doubt” upon the outcome.[12]
The bottom line is this: While universities may seek to evade the intent of the new Title IX regulation by creating dual-track disciplinary systems, they cannot ignore the courts. As federal circuits change the law to favor accused students in these lawsuits, universities should think twice about attempting to preserve their discriminatory practices. It will be better for universities to employ the procedural protections the regulation requires for all allegations of sexual misconduct, thereby limiting their liability exposure to costly and embarrassing lawsuits.
Citations:
[1] 34 CFR §106 et seq.
[2] https://www2.ed.gov/about/offices/list/ocr/blog/20200805.html
[3] Pennsylvania v. DeVos, No. 1:20-CV-01468 (CJN), 2020 WL 4673413, at *11 (D.D.C. Aug. 12, 2020).
[4] Teresa Manning, Title IX and Targeting the Two-Track Approach, NAT’L. REV., Aug. 24, 2020, https://www.nationalreview.com/2020/08/title-ix-universities-use-two-track-approach-to-avoid-new-rules/?utm_source=Sailthru&utm_medium=email&utm_campaign=NR%20Daily%20Monday%20through%20Friday%202020-08-24&utm_term=NRDaily-Smart.
[5] Id.
[6] See, e.g. Doe v. Purdue Univ., 928 F.3d 652, 667-8 (7th Cir. 2019).
[7] Yusuf v. Vassar Coll., 35 F.3d 709 (2d Cir. 1994).
[8] Doe v. Univ. of Scis., 961 F.3d 203 (3d Cir. 2020)
[9] Doe v. Univ. of Arkansas – Fayetteville, No. 19-1842, 2020 WL 5268514 (8th Cir. Sept. 4, 2020)
[10] Schwake v. Arizona Bd. of Regents, 967 F.3d 940 (9th Cir. 2020)
[11] Doe v. Oberlin Coll., 963 F.3d 580 (6th Cir. 2020)
[12] Id. at 588.