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PRESS RELEASE

Rebecca Stewart: 513-479-3335

Email: info@saveservices.org

OCR Guidance Ignores Growing Number of Judicial Decisions, Inviting New Wave of Title IX Lawsuits

WASHINGTON / August 4, 2021 – The Office for Civil Rights recently issued a new guidance that ignores the existence of over 200 judicial decisions that govern the conduct of Title IX proceedings. Titled “Questions and Answers on the Title IX Regulations on Sexual Harassment,” the document discusses a number of flexibilities built into the 2020 amendments to the Title IX regulation (1).

The OCR document makes no mention of relevant case law, even though these judicial decisions carry greater legal weight than non-binding guidance issued by an Executive Branch agency. Schools that unquestioningly follow the OCR guidance will place themselves at risk of more Title IX lawsuits.

Following are five examples how the OCR guidance places institutions at greater litigation risk:

1. Equitable Grievance Procedures

The original Title IX implementing regulation mandates the “equitable” resolution of complaints. See 34 CFR 106.8(b). Decisions by two appellate courts (2) and 12 trial courts (3) expound on the importance and meaning of fair adjudications.

For example, in I.F. v. Administrators of Tulane Educational Fund, Judge Max Tobias wrote:

“I.F. was entitled to know the standards by which his evidence would be received, his burden of proof, and what the hearing panel would be considering when determining whether he was guilty of sexual misconduct. Based on the record before us, which does not contain the evidence that Tulane would have presented if the trial court had not granted the motion for involuntary dismissal, we find that I.F.’s procedural due process rights were ill-defined, ambiguously applied, and, as such, presumptively violated.” (4)

The 2020 amendments to the Title IX regulation echoed these judicial sentiments, citing the terms “fairness” 203 times and “due process” 689 times (5). In contrast, the recent OCR guidance downplays the importance of equitable campus proceedings, mentioning “fairness” three times and “due process” only once. The guidance makes no mention of the overriding purpose of a campus adjudication, which is to reach a decision of responsibility or non-responsibility that is accurate, reliable, and fair.

2. Victim-Centered and Trauma-Informed Investigations

A victim-centered investigation is defined as one that conducts its probe “in a manner that is focused on the experience of the reported victim” (6) – implicitly excluding consideration of the respondent’s perspectives.

One type of victim-centered approach is known as “trauma-informed,” which many say lacks a sound scientific basis (7). Nonetheless, the OCR document categorically states that a school “may use trauma-informed approaches to respond to a formal complaint of sexual harassment.” (Question 28)

Courts have issued numerous decisions that decry the use of biased, guilt-presuming investigative methods. In the recent Doe v. Hobart and William Smith Colleges decision (8), the court ruled against the institution, citing the plaintiff’s allegations that the investigator utilized a trauma-informed approach that:

• Allowed the complainant — but not the accused student — to change her story to accommodate statements made by the accused.
• Did not highlight the inconsistencies and contradictions in the students’ statements in the final investigative report.
• Did not mention the existence of the video taken 20-30 minutes before the alleged assault showing the complainant to be awake, alert, and fully oriented.
• Afterwards, destroyed the audio recordings of the interviews.

To date, decisions affirming the importance of impartial and fair investigations have been issued by five appellate courts (9) and 28 trial courts (10).

3. Virtual Hearings

The OCR guidance advises that a school may “create its own rules for conducting a live hearing” (Question 43), including the use of virtual hearings (Question 45). But courts have not been so permissive in their pronouncements of what constitutes a fair hearing.

In Doe v. University of Southern California, the appellate court ruled, “the Appeals Panel suspended John on a different theory than [the University Student Conduct Office]. John was not provided any information about the factual basis of the charges against him, he was not allowed to access any evidence used to support those accusations unless he actively sought it through a written request, and he was not provided with any opportunity to appear directly before the decision-making panel to rebut the evidence presented against him.” (11)

In Doe v. New York University, the judge ruled that a virtual hearing that was scheduled while the accused student was studying abroad impaired the student’s ability to “participate meaningfully in the hearing.” (12)

To date, decisions mandating the use of live hearings with fair procedures have been issued by two appellate courts (13) and 14 trial courts (14).

4. Cross Examination

The OCR guidance unequivocally states that a college may “limit the questions that may be asked by each party of the other party or witnesses.” (Question 46)

But in the milestone Doe v. Baum decision, the Sixth Circuit held that “Cross-examination is essential in cases like Doe’s because it does more than uncover inconsistencies—it takes aim at credibility like no other procedural device. Without the back-and-forth of adversarial questioning, the accused cannot probe the witness’s story to test her memory, intelligence, or potential ulterior motives. Nor can the fact-finder observe the witness’s demeanor under that questioning.” (15)

To date, decisions affirming and explicating the use of cross examination have been issued by nine appellate courts (16) and 22 trial courts (17).

5. Parallel Track Adjudications

The document states, “OCR encourages schools to develop and enforce their [student conduct] codes as an additional tool for ensuring safe and supportive education environments for all students.” (Question 7) But courts have become wary of schools that establish parallel track adjudications as an end-run on due process.

In the Doe v. Rensselaer Polytechnic Institute decision, the court ruled, “Instead, defendant decided that it would be best to maintain two parallel procedures solely to ensure that at least some respondents would not have access to new rules designed to provide due process protections such as the right to cross-examination that have long been considered essential in other contexts… Such disregard for the inevitable administrative headaches of a multi-procedure approach certainly qualifies as evidence of an irregular adjudicative process. Similarly, the Court finds that a school’s conscious and voluntary choice to afford a plaintiff, over his objection, a lesser standard of due process protections when that school has in place a process which affords greater protections, qualifies as an adverse action.” (18)

Burgeoning Lawsuits, Costly Settlements

To date, 735 Title IX lawsuits have been filed against schools by accused students (19). A recent analysis of Title IX settlement agreements reveals that the average settlement hoovers in the mid-to-high six figures, with some settlements running as high as $1.7 million (20).

University attorneys need to assure that their Title IX policies, procedures, and training materials fulfill both the spirit and the letter of the 2020 amendments, and comply with applicable judicial decisions and state law (21).

Citations:

1. https://www2.ed.gov/about/offices/list/ocr/docs/202107-qa-titleix.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=
2. Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, page 6. https://www.saveservices.org/title-ix-regulation/analysis-of-judicial-decisions/
3. Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 7-10.
4. F. v. Administrators of Tulane Educ. Fund, 2013-0696 (La. App. 4 Cir. 12/23/13), 131 So. 3d 491, 499–500
5. https://www2.ed.gov/about/offices/list/ocr/docs/titleix-regs-unofficial.pdf
6. https://www.congress.gov/bill/117th-congress/house-bill/1620/text?q=%7B%22search%22%3A%5B%22hr+1620%22%5D%7D&r=1&s=1
7. https://www.saveservices.org/sexual-assault/investigations/
8. https://storage.courtlistener.com/recap/gov.uscourts.nywd.129690/gov.uscourts.nywd.129690.37.0.pdf
9. Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 26-27.
10. Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 27-33.
11. Doe v. Univ. of S. California 200 Cal. Rptr. 3d 851, 873 (Ct. App. 2016).
12. Doe v. New York University, 1:20-CV-01343-GHW, 2021 WL 1226384.
13. Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 76-77.
14. Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 77-80.
15. Doe v. Baum, 903 F.3d 575, 582-83 (6th Cir. 2018).
16. Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 81-83.
17. Analysis of Judicial Decisions Affirming the 2020 Title IX Regulation, pp. 83-87.
18. Doe v. Rensselaer Polytechnic Inst., 1:20-CV-1185, 2020 WL 6118492, at *6-7 (N.D.N.Y. Oct. 16, 2020).
19. https://titleixforall.com/
20. https://www.saveservices.org/2021/07/universities-pay-for-costly-title-ix-settlement-agreements/
21. https://www.saveservices.org/title-ix-regulation/state-laws/