Title IX: The Year in Review

There have been many significant developments in the Title IX space over the course of the last year. Here are some of the top developments of 2018:

Lawsuits Up, DOE Investigations Down

After years of increases, the number of open Department of Education Office of Civil Rights’ (“OCR”) investigations of post-secondary institutions into the handling of sexual misconduct matters has begun to decline. As of March 2018, the department's website listed 317 active Title IX cases involving sexual violence at postsecondary institutions.[i] As of November 30, 2018, that number has fallen to 269.[ii]

There are multiple reasons why this could be happening. The OCR has taken aggressive action to close long-standing investigations, thus clearing its docket. In addition, while the time it takes to complete an investigation has decreased, the time to resolve an investigation is still lengthy and often extends past the statute of limitations by which an aggrieved party may file a lawsuit. Thus, aggrieved parties may believe it makes more sense to just go straight to court, instead of requesting agency review. Further, in 2017, OCR curtailed the scope of its investigations, only conducting a broad systemic review of sexual misconduct matters if the individual complaint allegations themselves raise systemic or class-wide issues or the OCR’s investigative team determines a systemic approach is warranted through conversations with the complainant. Thus, the primary motive behind some complaints filed with OCR under prior guidance that resulted in a systemic review in nearly every investigation was eliminated.

In contrast, the number of lawsuits alleging violations of Title IX has increased. For instance, in Indiana, nine lawsuits alleging violations of Title IX in the handling of sexual misconduct investigations were filed against colleges and universities in 2018, as compared to five in 2017 and five in 2016. Success by plaintiffs in a few cases nationally, particularly by plaintiffs disciplined for sexual misconduct, may be driving this trend.

Sixth Circuit Mandates Live Cross-Examination

In a recent opinion issued by the United States Court of Appeals for the Sixth Circuit[iii], the Court held that the accused in a sexual misconduct matter must be provided an opportunity to conduct live cross-examination of the accuser, upending the practices of many colleges and universities who adopted the investigator model of resolving complaints. In Doe v. Baum, a student at the University of Michigan was accused of sexual misconduct. 903 F.3d 575 (6^th Cir. 2018). An investigator interviewed the complainant, the respondent, and multiple witnesses. Ultimately, the resolution of the complaint hinged on the credibility of the complainant and respondent. Following the investigator’s recommended ruling in the respondent’s favor, the complainant appealed and the university’s appeals board, despite not meeting with the parties in person, set aside the investigator’s recommendation and proceeded to the sanction phase. Facing the possibility of expulsion, the student withdrew from school and filed suit.

On appeal from the district court’s dismissal of the lawsuit, the Court determined the respondent had stated a viable claim for violations of Title IX, because the university’s procedure did not allow him to cross-examine the complainant. The University argued the respondent was afforded due process, because he was allowed to review the complainant’s statement and submit a response identifying inconsistencies. The Court rejected this argument, stating “if a public university has to choose between competing narratives to resolve a case, the university must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder.” Note that in a prior case the Sixth Circuit implied that allowing a respondent to submit written questions to a hearing board, with the hearing board then determining which questions to ask of the complainant, fulfills due process requirements. See Doe v. Univ. of Cincinnati, 872 F.3d 393, 401–02 (6^th Cir. 2017). The Court nevertheless asserted that the University of Cincinnati opinion was on all fours with its holding in Baum, stating that the case “is consistent with our conclusion today: if credibility is in dispute and material to the outcome, due process requires cross-examination.” 

New Rules Proposed by DOE

In late November, nearly a year after revoking the 2011 Dear Colleague letter, the Department of Education finally issued proposed rules governing sexual misconduct proceedings on campus. The implementation of these rules will result in significant changes to the policies of many colleges and universities. Key changes include:

Definition of Sexual Harassment. The proposed rules narrow the definition of sexual harassment colleges are required to address. Whereas the old guidance defined harassment as “unwelcome conduct of a sexual nature,” the new rules would define sexual harassment as either an employee of the institution conditioning a benefit on the individual’s participation in unwelcome sexual conduct, “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity,” or “sexual assault.”
 
Obligation to Respond. The proposed rules seek to change the old guidance, which had imposed an obligation on schools to respond to a complaint not just when the school knew about alleged harassment, but also when it should have known about it. Per the proposed rules, the duty to investigate will arise only after a formal report is made or if the school receives multiple informal reports about the same person’s conduct. (Note this change is only applicable to post-secondary schools). The proposed rules also seek to clarify that only incidents occurring on campus or within off-campus programs controlled by the school will require a response from the school.

Investigator Model. Over the past few years, a number of institutions have adopted an investigator model like that utilized by the University of Michigan and referred to in Doe v. Baum where a single person both investigates the complaint and issues the finding. The proposed rules bar this model as they explicitly state the decision-maker cannot be the same person as the Title IX Coordinator or the investigator. In addition, the proposed rules mandate that a live hearing be conducted.

Cross-Examination. The proposed rules provide that each party be allowed to cross-examine the other party at a live hearing. The institution may deem that the cross-examination be done through the party’s advisor, and “[i]f a party does not have an advisor present at the hearing, the recipient must provide that party an advisor aligned with that party to conduct cross-examination.” In some instances, it may be difficult to find a campus advisor “aligned with that party,” so this could lead to a requirement that the college or university retain an outside attorney for the parties. The proposed rules allow for the cross-examination to be conducted with the parties in different rooms through the use of technology, but the decision-maker and parties must be able to see and hear the party answering the questions.

Standard of Proof. Under the proposed rules colleges and universities may apply a “preponderance of the evidence” or a “clear and convincing evidence” standard. However, there are two significant caveats to this. First, the institution may “employ the preponderance of the evidence standard only if the recipient uses that standard for conduct code violations that do not involve sexual harassment but carry the same maximum disciplinary sanction.” Second, the institution “must also apply the same standard of evidence for complaints against students as it does for complaints against employees, including faculty.” So if, for instance, the institution’s contract with its tenured faculty states a clear and convincing standard is applied in proceedings involving harassment complaints against them, then a clear and convincing standard must be applied in student misconduct proceedings as well.

Grievance Procedures. The proposed rules seek changes to schools’ grievance/complaint procedures with an eye toward ensuring “equitable treatment” for both the complainant and the respondent. DOE explained in its proposal that equitable treatment for a complainant is the provision of remedies restoring educational access, while a school treats a respondent equitably by affording due process protections to the individual. In addition, if promulgated, the proposed rules will require schools to include an express statement in their procedures that the respondent is not responsible until a determination is made at the conclusion of the grievance process. 

Comments to the proposed rules are due by January 28, 2019 and may be submitted on-line here. Once this deadline passes, the DOE will review the comments and finalize the rules. They will go into effect upon publication. It is hard to predict when this will occur. Sometimes rules are finalized a month or two after the public comment period closes, but in other instances, it takes a year or more for the final rule to be published. In other words, there is no guarantee the final rules will be published prior to when colleges and universities finalize their student handbooks, which typically set forth their sexual misconduct procedures applicable to students, prior to the fall semester. Regardless, given the recent court rulings and the draft rules, colleges and universities should start moving away from the investigator model and make sure they permit some form of cross-examination during the proceedings.

Nate Uhl and Germaine Winnick Willett are attorneys with Ice Miller LLP. Ice Miller has a robust Title IX practice, assisting clients with the development of policies and procedures, counseling clients during sexual misconduct investigations and hearings, and representing clients during reviews undertaken by the Department of Education’s Office of Civil Rights. Uhl and Willett work in Ice Miller’s Indianapolis, Indiana office and can be reached at germaine.willett@icemiller.com, nate.uhl@icemiller.com or (317) 236-2100.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.