TITLE IX – Shield or Sword?
By: James G. Ryan, Partner-In-Charge of the Commercial Litigation and Education Litigation Department at Cullen and Dykman LLP, and Cynthia A. Augello and Hayley B. Dryer, Associates at Cullen and Dykman LLP, current members of the NCBA Education Law Committee.
Colleges and universities have an obligation to make their campuses a safe place for all students. It is getting more difficult to meet this obligation, however, under Title IX.
Title IX of the Civil Rights Act of 1964 mandates “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”1
While most notably known for its role in attaining gender equality in college and university athletic programs, Title IX actually covers far more than sports. Specifically, sexual harassment and sexual violence, both of which have gained recent focus in the national spotlight, fall under the Title IX umbrella.
Sexual harassment and sexual violence are considered forms of sex discrimination under Title IX if said conduct is “so severe, pervasive and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”2 Institutions that receive federal funds are required, upon notice of a claim of sexual harassment or sexual violence, to take prompt and effective action reasonably calculated to end the misconduct, prevent its recurrence and remedy its effects.3 Institutions who fail to appropriately respond to a claim of sexual misconduct can suffer serious consequences under Title IX, such as the loss of federal funding,4 an investigation by the U.S. Department of Education’s Office of Civil Rights,5 and/or a federal lawsuit.6
In recent months, the federal government has spent significant time monitoring claims of sexual assaults of women on campuses throughout the country. As a result of this scrutiny, institutions throughout the country have been inundated with an overwhelming amount of federal guidance.
For example, in April 2014 the White House Task Force to Protect Students from Sexual Assault released Not Alone: The First Report of the White House Task Force to Protect Students from Sexual Assault.7 Shortly thereafter, the U.S. Department of Education’s Office of Civil Rights also released Questions and Answers on Title IX and Sexual Violence.8 Congress is also taking action, and in July 2014, a bipartisan group of eight U.S. Senators unveiled legislation, titled the Campus Accountability and Safety Act, aimed at decreasing the number of campus sexual assaults.9
For educational institutions, the obligations they have toward students are growing rapidly. To date, nearly 85 higher education institutions have been named by the Department of Education as colleges and universities that are currently under investigation for allegedly mishandling sexual misconduct complaints in violation of Title IX.10 Their names have also been splashed across all types of media and not in a favorable light. For example, in July 2014 a story was featured on the front page of the New York Times that provided a detailed portrait of how one institution allegedly mishandled a sexual assault complaint.11
Many of these cases involve victims alleging that their institutions displayed deliberate indifference to claims of sexual violence and failed to comply with Title IX by not taking immediate or proper action in response a claim of sexual assault. However, “reverse Title IX” claims, where the accused files suit for failing to conduct a fair and equitable investigation, have also become commonplace.12
Consider the following scenario: a student arrives late one night at the campus security office and claims that she has just been date raped. University security personnel mobilize and early the next morning surround the accused student’s dorm. The student is cuffed and walked out before hundreds of student onlookers.
The university investigates the claim by discussing the matter with the complainant and permanently expels the accused student before affording him an opportunity to present his side of the story or refute the complainant’s allegations. A year later, the accused student is tried in criminal court and convicted of raping the complainant.
Now consider a slight variation of the facts: after a rather mundane cross-examination at the criminal trial of the accused student, the jury determines that the complainant made up the entire accusation after her boyfriend found out she was cheating on him with the accused. The accused student is fully vindicated in criminal court.
Has the institution fulfilled its Title IX obligations in either scenario? The foundation of Title IX is built on equity, objectivity, and justice for both the alleged victim and the accused.
On one hand, institutions are required, pursuant to Title IX, to maintain grievance procedures that provide for the prompt and equitable resolution of sexual misconduct complaints.13 Both the complainant and the accused must be afforded equal opportunities to present evidence and have witnesses speak on their behalf. This could lead one to believe that the approach taken by the university in the above referenced scenario was improper insofar as the accused student did not have the opportunity to present his side of the story. On the other hand, upon notice of a claim of sexual misconduct, institutions are required to take prompt and effective action to eliminate a hostile environment and remedy the effects of any alleged sexual misconduct.14
These competing principles raise a question: how is an institution supposed to balance its obligations under Title IX to timely respond to a claim of sexual misconduct and provide well- established protections for the complainant, while at the same time, afford proper due process rights to the accused student?
The stakes are high all around as both the courts and the Department of Education struggle to find an answer to this question. In the meantime, and at an increasing rate, students who have been accused of sexual misconduct are suing their institutions under Title IX, while complainants use the same statute to sue their institutions for allegedly failing to properly investigate claims of sexual assault.
Accused students have already filed claims against Vassar College, the University of Michigan, the University of Massachusetts Amherst, Duke University and a host of other campuses.17 Many of these complaints allege that the accused students were not afforded fair hearings and that their institutions grossly violated their respective due process rights.18 A number of these complaints also state that the “presumed guilty” mindset that many colleges and universities maintain has resulted in serious miscarriages of justice for accused students. 19
When properly implemented, Title IX shields students and guides institutions on how to maintain a safe campus environment. At the same time, Title IX can be, and currently is, being used as a sword (by both victims and accused students) in an effort to punish institutions for improperly responding to claims of sexual misconduct. Especially during this new era of Title IX enforcement and attention by the federal government, institutions must keep a close eye on the course of this federal law, as the ever-changing climate has the ability to have practical as well as legal implications for all colleges and universities.
- 20 U.S.C. §1681 et seq.
- https://aclu-wa.org/sites/default/files/attachments/WA- specific%20Sexual%20 Assault%20KYR.pdf (citing Davis v. Monroe County Bd. of Educ., 526 U.S. 633 (1999)).
- www.whitehouse.gov/sites/default/files/dear_ colleague_sexual_violence.pdf
- See Cannon v. University of Chicago, 441 U.S. 677 (1979) (holding that an individual has a private right of action under Title IX).
- www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title- ix.pdf
- www.insidehighered.com/sites/default/server_files/files/ Bill%20text(1).pdf
- www.huffingtonpost.com/2014/10/15/colleges-federal- investigation-sexual-assault_n_5990286.html
- www.nytimes.com/2014/07/13/us/how-one-college- handled-a-sexual-assault-complaint.html
- See, e.g., http://washington.cbslocal.com/2013/12/17/ report-male-students-use-title-ix-discrimination-laws-to- fight-campus-sexual-assault-claims/
- www2.ed.gov/about/offices/list/ocr/letters/ colleague-201104.pdf
- www.whitehouse.gov/sites/default/files/dear_colleague_ sexual_violence.pdf
- www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title- ix.pdf
- www.latimes.com/local/la-me-sexual-assault-legal- 20140608-story.html#page=1
Reprinted with permission from Cullen and Dykman LLP. Cullen and Dykman LLP has been assisting educational institutions in all facets of education law for decades. For more information, visit www.cullenanddykman.com.
For more information on Title IX coverage, contact a Trusted Advisor at Waldorf Risk Solutions at 631-423-9500