Author: Edward Bartlett

Categories
Campus Sexual Assault Sexual Harassment Title IX Title IX Equity Project

Biden is President-Elect. Can We Just Ignore the Title IX Regulations Now?

November 9, 2020

TNG Consulting and Brett Sokolow

It has been a week! We now know that Joe Biden is the President-Elect of the United States of America. There will still be some legal wrangling, and nothing is set in stone until the electors vote in December. But, assuming this outcome is maintained, you’ll likely be able to ignore Executive Order 13950 (“Combating Race and Sex Stereotyping”). But, what about the Title IX Regulations?

You’ve always had the option to ignore them. The question is whether you’re willing to accept the consequences of that decision. If so, compliance is a choice. If not, you need to comply. So, to make an informed decision, you need to know what the consequences are.

In just 70 days (plus or minus) there will be a new administration. The Office for Civil Rights needs to be directed to come after you for failing to comply with the regulations, and their new Biden-appointed supervisors aren’t likely to do that. Even if OCR were to enforce, you could drag it out and appeal. There is no way for OCR to issue a 305 notice of adverse enforcement action within 70 days, and even then that would have to be referred to the courts, so you’re probably pretty safe on that front.

The problem is the courts. Deprive respondents of their regs-based rights, and they will sue. Trump-appointed judges and others who value due process over victim’s rights will use the regulations as the basis of enforcement through litigation, though exactly how that will work remains to be tested. Do you want to be the test case? Maybe you’ll face a TRO. It’s temporary. Could President Biden’s ED act to rescind the regulations before a permanent injunction would be implemented? That would stop judges from enforcing the regs. Litigating to trial could take two years. By that time, Biden’s administration will have acted to at least rescind the regs, if not replace them, right? That would moot the lawsuit. So, you have to decide whether fending off some lawsuits is a reasonable price to pay for liberating your campus or school from the regulations.

Of course, President Biden won’t rescind the regs personally. That will be done by the Secretary of Education. How long will it take the Biden transition team to vet and select a nominee for Secretary of Education? How long might it be until a Secretary of Education is in place (must be confirmed by the Senate), builds a new team, and works through his/her/their priorities until Title IX hits the top of the list? It could be a year. ATIXA expects many colleges and schools will maintain their compliance with the regulations until then, but we also expect some loosening over time, as signals are issued from the Biden administration and the Department of Education about how they’re going to play this. What will change?

An informal poll of the ATIXA Title IX experts came up with these top ten targets:

  • Relief from direct cross examination by an advisor (cross-examination is not going anywhere, but we expect a lessening of the rigid regs requirements)
  • Removal of the nonsensical exclusionary/hearsay rule regarding “statements”
  • Revocation of the confusing rules on relevance v. directly related evidence
  • Two ten-day review periods likely collapsed into one period
  • Formal complaint requirement will be reversed
  • Hearing requirements for at-will employees will be limited
  • Hearings will only be required when some form of separation is on the table, and the definition of hearing will be broader and less formal
  • Mandated dismissal of Title IX complaints removed
  • Broad retaliation protections rolled back, especially as applied to respondents
  • Removal of any necessity for two processes

We do expect there will be some legal counsels who evaluate the risk and advise their schools and districts to move away from the regs to a best practices model (ATIXA’s Process B?) immediately. We can’t and won’t advise you to do so yet (and some circuit courts of appeals won’t allow it), and we don’t advise you to ignore the regs without first consulting your attorneys. Doing the right thing by implementing a best practice model may wind up being a very defensible position going forward. ATIXA will have its eyes on ways to effectively balance the rights of complainants and respondents, and how we can help you to do so as the rules for Title IX likely shift again in the coming years.

If we had to prognosticate, we’d guess that fairly early on, the Biden administration will rescind the 2020 regulations, and implement another new Dear Colleague Letter/Q&A style approach, like what ED did in 2017, to fill the gap. Simultaneously or soon thereafter, ED will announce a process to issue new regulations under the APA (which will then take 1 year to 18 months). The DCL won’t bring back 2011 but will likely use a framework that modifies the current regulations per our above laundry list. This is the mostly likely scenario, but don’t write off a Title IX Restoration Act in Congress, especially if the Senate goes blue after the Georgia runoff elections in January.

Source: https://www.jdsupra.com/legalnews/biden-is-president-elect-can-we-just-63134/

Categories
Campus Due Process Sexual Assault Sexual Harassment Title IX

Barrett Confirmation is a Win for Due Process on Campus

Barrett Confirmation is a Win for Due Process on Campus

By Edward Bartlett

In her swearing-in ceremony, new Supreme Court Associate Justice Amy Coney Barrett pledged “to do my job without any fear or favor, and that I will do so independently of both the political branches and of my own preferences.”  While many speculate on how the tenure of the 115th justice will impact the court, one thing is a near certainty – it is a win for due process and ending sex discrimination on university campuses.

For nearly a decade, college administrators have interpreted Title IX in a way that allowed them to discriminate against students based on sex by offering, among other things, sex-specific STEM courses, leadership development programs, and scholarships.  Additionally, universities have used Title IX to railroad students who have been accused—not convicted—of harassment or sexual assault. Thankfully, the U.S. Department of Education released regulations earlier this year that protect students from these types of discriminatory practices.

On this topic, Barrett has shown herself to be a fair jurist—an originalist who interprets the law as it is written not as she wishes it was. And the law is clear when it comes to Title IX—discrimination based on a student’s sex is prohibited.

At her announcement ceremony in the White House Rose Garden, Barrett made it clear that she doesn’t care who a person is when considering a case but what the law says. Barrett stated she would, “administer justice without respect to persons,” which is exactly what’s missing on today’s college campus where an entire sex is shut out of classes and a mere accusation is enough for expulsion.

When one sex discrimination case, Doe v. Perdue University, was put before the U.S. Court of Appeals for the 7th Circuit, Judge Barrett wrote the panel’s opinion after they revived the student’s right to due process.

The student, referred to as John Doe, was accused of sexual misconduct, which he denied. He was suspended, discharged from the school’s ROTC program, and stripped of his ROTC-related scholarship, even though he was not allowed to call witnesses or defend himself in any meaningful way.

Barrett wrote, “Purdue’s process fell short of what even a high school must provide to a student facing a days-long suspension . . . John received notice of Jane’s allegations and denied them, but Purdue did not disclose its evidence to John. And withholding the evidence on which it relied in adjudicating his guilt was itself sufficient to render the process fundamentally unfair.”

This may seem like an isolated incident that’s the result of an overzealous administration with an ax to grind. But I assure you, this type of sex discrimination is happening to male students all over the country despite the recent changes to Title IX.

Judge Barrett isn’t the only well-known judge with experience in sex discrimination. Almost half a century ago, the late Supreme Court Justice Ruth Bader Ginsburg, the judge Barrett is set to replace on the country’s highest court, made waves when she represented Charles Mortiz in Mortiz v. Commissioner of Internal Revenue after he was denied a tax deduction for expenses related to the care of his invalid mother. Only women and previously married men were allowed the deduction, so Mortiz, a lifelong bachelor, was denied it due to his sex. Thanks to Ginsburg, that discriminatory decision was eventually overturned.

While Justice Ginsburg never ruled on a Title IX case related to campus sexual assault, she did comment on the issue in 2018, stating, “there’s been criticism of some college codes of conduct for not giving the accused person a fair opportunity to be heard, and that’s one of the basic tenets of our system, as you know, everyone deserves a fair hearing,” and that, “the person who is accused has a right to defend herself or himself.”

I agree with Justice Ginsburg and believe that clarity on sex discrimination will help set the tone when it comes to Title IX compliance. Which is one very important reason to celebrate Justice Barrett’s confirmation to the Supreme Court.

Categories
Campus Sexual Assault Sexual Harassment Title IX

N.Y. and Ed Dept. Dismiss Title IX Rule Lawsuit

By Greta Anderson

November 5, 2020

The State of New York and the U.S. Department of Education agreed Tuesday to dismiss the state’s lawsuit against the department and Secretary of Education Betsy DeVos. The lawsuit, filed in June by state officials and the Board of Education for the New York City school district, challenged the Trump administration’s new rules for how colleges and universities respond to campus sexual assault and harassment.

The lawsuit is the second to be dismissed of four lawsuits that were brought against the department due to the new rules, which were issued in May under Title IX of the Education Amendments of 1972, the law prohibiting sex discrimination at federally funded institutions. Last month, a judge for the district court in the District of Columbia dismissed a lawsuit filed by the American Civil Liberties Union on behalf of advocacy organizations for survivors of sexual assault.

The State of New York’s lawsuit, however, was voluntarily dismissed, according to court documents filed in U.S. District Court for the Southern District of New York. Both the state and the Department of Education agreed that Tuesday’s dismissal would not prevent the state or its institutions “from asserting the invalidity” of the Title IX regulations if New York schools are sued for sexual assault or harassment-related claims, the agreement said.

As of Nov. 4, there are two remaining lawsuits that challenge the legality of the Title IX regulations. One lawsuit filed by the National Women’s Law Center and other legal advocacy groups is scheduled to go to trial starting Nov. 12 in United States District Court for the District of Massachusetts. Arguments in another lawsuit, which 18 attorneys general are backing, are scheduled to stretch into 2021, according to court documents.

Source: https://www.insidehighered.com/quicktakes/2020/11/05/ny-and-ed-dept-dismiss-title-ix-rule-lawsuit#:~:text=The%20State%20of%20New%20York,Secretary%20of%20Education%20Betsy%20DeVos.&text=Arguments%20in%20another%20lawsuit%2C%20which,2021%2C%20according%20to%20court%20documents