April 30, 2018 Title IX Enforcement In The #MeToo Era
Now with a new administration at the helm of this divisive national issue, OCR has rescinded the DCL and Q&A documents and issued a brand new Q&A diverging from prior recommendations. In this environment, many educational entities may wonder what the future holds both in OCR’s enforcement of Title IX and in private litigation arising from sexual harassment involving students.
This article briefly describes a history of OCR’s enforcement of Title IX in the context of sexual harassment and misconduct, recent changes in OCR’s enforcement practices under the new administration, and what schools can expect in private litigation brought by students in the wake of OCR’s enforcement shift.
The History of OCR’s Interpretation and Enforcement of Title IX
Title IX prohibits federal funding recipients from discriminating against persons on the basis of gender. The statute requires that “[n]o 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.” OCR is an agency within the Department of Education that enforces Title IX.
Although Title IX has been previously associated with equity in college athletics funding, by the late 1970s, sexual harassment was recognized as a form of sexual discrimination under Title IX. In 1997, OCR issued sexual harassment guidance acknowledging that student-on-student sexual assault could create a harassing environment violating Title IX. In 2001 and 2010, OCR released additional sexual harassment guidance under Title IX calling for prompt and effective responses to sexual misconduct, including well-publicized and effective grievance procedures.
The 2011 Dear Colleague letter established specific procedures and recommendations for responding to allegations of sexual misconduct, most notably the requirement that schools use a “preponderance of the evidence” standard in sexual misconduct investigations. In 2014, OCR issued another guidance document referred to as a Q&A, which further detailed expectations set forth in the 2011 DCL. These guidance documents sought to clarify expectations for schools to report, respond to, and prevent sexual harassment and sexual violence. In 2016, the Obama administration extended Title IX’s reach even further when it released another Dear Colleague letter, this time explaining that denying transgender students certain protections, such as access to their preferred restrooms, was a violation of Title IX.
Enforcement of Title IX Under the New Administration
On Sept. 22, 2017, the new head of OCR, Acting Assistant Secretary for Civil Rights Candice Jackson, issued a new Dear Colleague letter officially withdrawing the 2011 DCL and the 2014 Q&A. Jackson announced that OCR will be developing a new approach to student sexual misconduct that better responds to the concerns of stakeholders. OCR intends to post proposed rules in the future that will be subject to a public comment process before implementation.
That same day, OCR simultaneously issued a new Q&A on campus sexual misconduct, aimed at providing interim guidance as to the department’s enforcement positions. Generally, the new Q&A reminds schools of their existing obligations to comply with Title IX and (for institutions of higher education) the Clery Act, while providing schools with more leeway in responding to alleged sexual misconduct. For example, the new Q&A permits schools to abandon the previously mandated “preponderance of the evidence” standard and choose what evidentiary standard to use in sexual misconduct investigations (provided it is the same standard used in other misconduct matters). The new Q&A also eliminates the recommended 60-day timeline for completing investigations and states that any interim measures to address conflicts while an investigation is pending “may not rely on fixed rules or operating assumptions that favor one party over another.” This suggests that OCR would consider the automatic issuance of one-way no-contact orders or interim suspensions as improper.
In an effort to preserve the now defunct 2011 DCL and 2014 Q&A, on Oct. 12, 2017, a group of democratic lawmakers introduced a bill into congress, the “Title IX Protection Act.” It is unclear what success this bill might have in current or future congresses. It is similarly unclear what regulations OCR might propose in the future. In this uncertain, murky environment, many factors indicate an inevitable sea change in OCR’s Title IX enforcement efforts going forward, which will likely increase private litigation against schools. Below, we have outlined some of the key actions OCR has taken that indicate schools will likely see an increase in private litigation of student sexual harassment and misconduct cases.
Rescission of Transgender Guidance
In February 2017, the Department of Education, led by new Secretary of Education Betsy DeVos, announced that it would rescind the 2016 DCL extending Title IX protections to transgender students. Critics challenged the prior administration’s failure to comply with the Administrative Procedure Act in enacting this guidance. By the time it was officially revoked, the transgender guidance had become the subject of a pending U.S. Supreme Court case and a nationwide injunction prohibiting government officials from enforcing it. DeVos cited this litigation as the reason for rescission but insisted that transgender students would still be protected. She explained that OCR “remains committed to investigating all claims of discrimination, bullying and harassment against those who are most vulnerable in our schools.” Jackson echoed DeVos, insisting nothing beyond access to intimate facilities was affected and that rescission of the transgender guidance does not mean that “any complaint by a transgender student is now somehow not legally valid.” Instead, “longstanding legal theories under sex discrimination law still exist and will absolutely be fully pursued to protect gender nonconforming students from harassment and violence.”
Based on the lack of written guidance committing OCR to protecting transgender and gender nonconforming students going forward, and the rise of prominent transgender celebrities and social media movements encouraging students to be comfortable in their own skin (e.g., the “it gets better” movement), schools can expect more private litigation with students in the transgender and gender nonconforming population.
Scaling Back Investigations
Next, Jackson has already taken steps to ensure that OCR scales back the scope of Title IX investigations. During the Obama administration, OCR notoriously took a comprehensive approach to investigating complaints by asking schools for extensive data and documentation concerning their handling of sexual harassment and misconduct complaints. In a memorandum leaked to the public in mid-June 2017, Jackson announced that when a Title IX complaint is made against an institution, investigators will no longer be required to obtain three years of past data in order to determine whether a school is compliant with Title IX and OCR’s recommendations. Jackson indicated that more far-reaching data will only be sought from a school if the “allegations themselves raise systemic or class-wide issues or the investigative team determines a systematic approach is warranted through conversations with the complainant,” in which case the department will “apply a ‘systemic’ or ‘class action’ approach.”
This new approach greatly narrows the scope of OCR investigations, evoking both criticism and praise. Perhaps most notably, former Assistant Secretary for Civil Rights Catherine Lhamon condemned OCR’s new approach as a “stick your head in the sand approach.” On the other hand, the new policy has been lauded by those who believe OCR had overstepped its bounds in its prior sexual violence investigations. Jackson stated, “For those ... who have been expressing fear that ... OCR is scaling back or retreating from civil rights, that’s just not the case.” She went on to explain that this change in policy was meant to expedite the complaint resolution process, adding “justice delayed is justice denied.”
Because OCR has publicly committed to scaling back the scope of its agency enforcement efforts, we expect to see more complainants and accused students to opt for private litigation to enforce Title IX against schools.
Public Statements By OCR
A comment that Jackson made in mid-July 2017 caused many to think she may not be taking campus sexual assault seriously. Jackson told The New York Times that “90 percent” of rape accusations “fall into the category of ‘we were both drunk,’ ‘we broke up, and six months later I found myself under a Title IX investigation because she just decided that our last sleeping together was not quite right.’” Jackson later apologized for the comment, calling it “flippant.” Sen. Patty Murray, D-Wash., claimed that Jackson’s comment “crossed a serious line and highlighted her clear biases,” and called for her termination. The fact that Jackson’s remark came in the wake of OCR rethinking its position on Title IX enforcement has been a source of concern for some.
Jackson is not the only one whose statements and actions suggest the way Title IX is enforced will change. In a highly publicized speech on Sept. 7, 2017, just weeks before the new Q&A was issued, DeVos referred to university adjudicative proceedings as “kangaroo courts” and emphasized the importance of due process for those accused of harassment and assault. DeVos stated, “There are men and women, boys and girls, who are survivors, and there are men and women, boys and girls who are wrongfully accused. I’ve met them personally. I’ve heard their stories. And the rights of one person can never be paramount to the rights of another.”
These public statements by DeVos and Jackson may discourage complainants from pursuing OCR complaint procedures and remedies and, instead, may propel students to litigate their cases under Title IX.
Proposed Budget Cuts at OCR
The last major factor suggesting OCR will not vigorously enforce Title IX is that the proposed budget for OCR suggests OCR may be in for some big changes. New budget proposals call for a 7 percent reduction in staff within OCR, which would result in about 46 fewer full-time staff positions. It is estimated that these budget cuts would result in each staff member handling as many as 42 cases at a time, a sharp increase from the 26 cases handled by staff members just a few years prior. This number is even more significant when considered in light of the fact that OCR is already facing a backlog of over 300 open sexual assault cases. If these budget cuts were to go into effect, OCR may be unable to enforce even the scaled-back guidance, making private litigation against schools more prevalent.
Proliferation of Private Litigation
Regardless of exactly how Title IX will be enforced by OCR going forward, we expect that more students will pursue private litigation against schools given the national dialogue surrounding sexual assault and harassment, as exemplified by the #MeToo movement and OCR’s scaled-back approach and reduced budget.
Schools may take comfort in the fact that while OCR’s approach may have shifted over time, Title IX case doctrine has not shifted significantly — Title IX claims are not easy for plaintiffs to prove in court. In Title IX cases brought by students against teachers, the plaintiff must prove that “an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond.” In cases of student-on-student sexual misconduct, the plaintiff must establish that “the funding recipient act[ed] with deliberate indifference to known acts of harassment in its programs or activities.” Negligence is not enough to prove a Title IX claim. Moreover, the harassment must be “so severe, pervasive and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”
Litigation is not only being initiated by complainants of sexual misconduct. Claims brought by students who allege they were wrongly found guilty of sexual harassment by their schools have increased. These students have an equally high standard to meet — they must show that the institution’s actions were motivated by sex in order to prevail on a civil claim for violating Title IX. Such cases generally fall into one of two categories: erroneous outcome or selective enforcement.
In erroneous outcome cases, the accused student must allege facts that show not only that the outcome of the school’s investigation was wrong but also that the erroneous outcome was motivated by gender bias. In selective enforcement cases, the plaintiff must show that the severity of the response to the allegations of sexual harassment or the decision to initiate an investigation was motivated by gender bias. An example of this might be if claims of sexual harassment brought by female students were investigated, but claims of sexual harassment brought by male students were not.
Creative attorneys motivated to join in the politically charged fray of school sexual assault cases are not likely to be deterred by the high standards under Title IX, as they are likely to find other state law claims to pursue. Accused students and staff may bring defamation, due process, wrongful arrest, equal protection or other civil rights claims. Both complainants and accused students may seek redress through breach of contract, infliction of emotional distress or negligence claims.
Sexual harassment lawsuits brought by students, whether under Title IX or state law, have real costs to schools. First and foremost is the cost to a school’s reputation for ensuring the safety of its student population and its fairness to all students. Duke University, the University of Virginia and the University of Montana come to mind. In addition to reputational costs, schools must also consider the cost of litigating a student sexual harassment case. For example, United Educators, an entity that insures hundreds of colleges and universities, reports that the approximately 100 lawsuits related to sexual assaults at its member institutions between 2011 and 2015 cost an average of $350,000 in legal fees and settlements or awards.
The issue of Title IX sexual harassment enforcement is complicated, politically charged and promises to be in constant upheaval for the foreseeable future. Key players struggle to balance the rights of complainants and the rights of the accused. This turmoil will only be exacerbated by increased national attention paid to sexual assault and harassment allegations in the media. The impossible balance beam schools walk in processing such allegations will only continue to narrow while the risks continue to escalate and the spotlight brightens.
Joanne Alnajjar Buser and Corrie Klekowski are partners at Paul Plevin Sullivan & Connaughton LLP in San Diego.
The authors thank Paul Plevin associate Jacqueline Seiter and summer law clerk Isabella Neal for their contributions to this article.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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 Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties, 66 Fed. Reg. 5512 (Jan. 19, 2001); Russlynn Ali, Dear Colleague Letter: Harassment and Bullying, U.S. Dep’t of Educ., Office for Civil Rights (Oct. 26, 2010), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.pdf.
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 The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C. § 1092(f) (1990).
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 Erica L. Green, Education Dept. Says It Will Scale Back Civil Rights Investigations, N.Y. Times (June 16, 2017), https://www.nytimes.com/2017/06/16/us/politics/education-department-civil-rights-betsy-devos.html?smid=tw-nytimes&smtyp=cur.
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 Katie Mettler, Trump Official Apologizes for Saying Most Campus Sexual Assault Accusations Come After Drunken Sex, Breakups, Wash. Post (July 13, 2017), https://www.washingtonpost.com/news/morning-mix/wp/2017/07/13/trump-official-apologizes-for-saying-most-campus-sexual-assault-accusations-come-after-drunken-sex-breakups/?utm_term=.ec40cd4007f6.
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 Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).
 Davis ex rel. LaShonda D. v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 633 (1999).
 United Educators, Student Sexual Assault Claims: When Alleged Perpetrators Become Plaintiffs (July 2017).
 See Nungesser v. Columbia Univ., 169 F. Supp. 3d 353, 364–66 (S.D.N.Y. 2016).
 Yusuf v. Vassar College, 35 F.3d 709, 715 (2d Cir. 1994).
 Ritter v. Oklahoma, No. CIV-16-0438-HE, 2016 WL 2659620, at *2 (W.D. Okla. May 6, 2016).
 See United Educators, supra note 35.
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 Michael E. Miller, Montana Quarterback Receives $245K Settlement for University’s “Unfair and Biased” Rape Investigation, Wash. Post (Feb. 17, 2016), https://www.washingtonpost.com/news/morning-mix/wp/2016/02/17/montana-quarterback-receives-245k-settlement-for-universitys-unfair-and-biased-rape-investigation/?utm_term=.510a317eb46b.
 Emily Tate, The High (Dollar) Cost of Sexual Assault, Inside Higher Ed (April 6, 2017), https://www.insidehighered.com/news/2017/04/06/sexual-assault-claims-can-be-costly.