On February 16, 2021, the U.S. Court of Appeals for the Eighth Circuit rendered a decision in Du Bois v. Bd. of Regents of Univ. of Minn., holding that the retaliation protections under Title IX do not extend to investigation participants who supported the Respondent during a Title IX investigation.
Du Bois was a student athlete at the University of Minnesota in 2018, when her cross-country coach was investigated for allegations of sexual harassment. Du Bois voluntarily participated in the investigation, coming forward on behalf of her coach, and denying any knowledge of sex discrimination. Having a limited number of NCAA eligible athletic seasons, and after sustaining an injury, Du Bois later sought to “redshirt” (defer her next athletic season to a later semester) or to transfer to another school. The University denied Du Bois’ request to redshirt, although it allegedly allowed other student athletes to do so, and eventually removed her from the team.
Du Bois filed suit against the University alleging retaliation as a result of her participation in the Title IX investigation of her coach. The University filed a motion to dismiss Du Bois’ suit for failure to state a claim, and the U.S. District Court for the District of Minnesota granted the University’s motion. Du Bois appealed the decision.
Title IX itself does not expressly provide a right of action for retaliation. In Jackson v. Birmingham Bd., the U.S. Supreme Court held that a right of action for retaliation is implied by the statute. However, the Court declined to establish the actual elements which are necessary to state a claim. As such, various federal circuits established their own approaches to analyzing Title IX retaliation, with most circuits relying on the framework for Title VII retaliation as a guidepost. Notably, according to Jackson, and under the Title VII framework, a Plaintiff alleging retaliation must have engaged in a protected activity in order to trigger retaliation protections.
In this case, the Eighth Circuit Court of Appeals held that Du Bois’ participation in the investigation simply did not constitute a protected activity. The court reasoned that the statute and its implied retaliation provisions are designed to protect those who have complained of or opposed sex discrimination. The court found that Du Bois had done exactly the opposite. She had stated that she was not aware of any sex discrimination. Therefore she did not engage in a protected activity which would avail her of protection from retaliation.
The court’s opinion distinguished Du Bois’ case from a similar Ninth Circuit case where student athletes were found to have been subject to retaliation when their coach was fired after bringing forward sex discrimination complaints on their behalf. The court stated that in that case, the students had suffered a harm as a result of their complaints, whereas Du Bois denied any such complaints.
This is an interesting development, as it is a elucidates an important deviation from the Title VII framework previously used by the Eighth Circuit and other federal circuit courts to analyze Title IX retaliation claims. Under traditional Title VII principles, participation in an investigation, whether as a witness for the Complainant or the Respondent, is a protected activity. So while the Eighth District did not set forth a new test or new elements for establishing a claim for Title IX retaliation, the clarification on what constitutes a protected activity certainly reduces the potential for retaliation claims to be brought forward by witnesses or investigation participants, at least within the Eighth circuit.
This might leave you thinking, “What about the new Title IX regulations? Don’t those regulations include protections from retaliation?” Indeed, the new regulations, which became effective August 14, 2020, state at 34 C.F.R. § 106.71, “No recipient or other person may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by Title IX…or because the individual has made a report or complaint, testified, assisted, or participated or refused to participate in any manner in an investigation, proceeding, or hearing under this part.” So how can the court’s decision be explained?
Well, as noted multiple times within the pre-amble to the new regulations, the key retaliation protections here are aimed at those who are “exercising rights under Title IX.” The Eighth Circuit has put its focus on that language, and its opinion is that a witness not opposing a violation of Title IX is not “exercising rights” under the law, and therefore is not entitled to those protections. On its face, this interpretation appears to be somewhat contradictory to the intent of the new regulations to include additional protections from retaliation, which did not previously exist. It will be curious to see whether other circuits adopt the same analyses in their own jurisdictions.
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