Retaliation Claims for Participants in Title IX Process?

 

March 4, 2021

 

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.

 

Interested in learning about the many Title IX services that Institutional Compliance Services provides? Contact us for more information.

Training Requirements: K-12 Title IX and Athletics – What Does Your School District Need to Know?

February 8, 2021

 

Often incidents of alleged sexual harassment arise in the athletics environment – be it in the locker room, on a bus to or from a game, or before or after practice, to name a few.  To ensure your school district meets its Title IX obligations and the safety of its student-athletes, it is imperative that coaches and staff are trained on the new Title IX regulations.

 

This training should include:

1) Definition of Title IX sexual harassment and when it falls under your program or activity;

2) How and when an employee can become on notice of sexual harassment;

3) Reporting obligations once on notice, including the interplay between reporting obligations under Title IX and mandatory reporting obligations pursuant to state law; and

4) A school district’s Title IX compliance obligations in responding to an allegation of Title IX sexual harassment and how athletics plays a key role in these obligations.

 

Complying with Title IX, however, is more than responding to incidents of sexual harassment. A large component of Title IX compliance also includes gender equity in athletics, pregnancy discrimination, and sex-based or gender-based discrimination.  Athletics staff should have a full understanding of the breadth of Title IX compliance as it relates to unique issues that arise in athletics.

 

Title IX Coordinators and school district athletics coaches and staff should attend ICS’ Title IX for Athletics Virtual Certified Training, where all of this and more will be covered.  This virtual training is live and interactive, and participants will have the opportunity to ask questions of the presenters to seek clarity.  In addition, training will include hypos to help put concepts into practice. Register today, as spaces are limited.

New Title IX Religious Exemption Regulations

November 24, 2020

 

The Department of Education issued a new rule, effective November 23, 2020, that “codifies how an educational institution may demonstrate that it is controlled by a religious organization for purposes of Title IX, 20 U.S.C. § 1681(a)(3).” This new rule will be codified in the Federal Regulations at 34 C.F.R. § 106.12(c), and includes the following non-exhaustive list of factors that an institution may rely upon to demonstrate that it is “controlled by a religious organization” for Title IX purposes:

 

(c) Any of the following shall be sufficient to establish that an educational institution is controlled by a religious organization, as contemplated under subsection (a), and is therefore eligible to assert a religious exemption to the extent application of this part would not be consistent with its religious tenets:

(1)  That the educational institution is a school or department of divinity.

(2)  That the educational institution requires its faculty, students, or employees to be members of, or otherwise engage in religious practices of, or espouse a personal belief in, the religion of the organization by which it claims to be controlled.

(3)  That the educational institution, in its charter or catalog, or other official publication, contains an explicit statement that it is controlled by a religious organization or an organ thereof, or is committed to the doctrines or practices of a particular religion, and the members of its governing body are appointed by the controlling religious organization or an organ thereof, and it receives a significant amount of financial support from the controlling religious organization or an organ thereof.

(4)  That the educational institution has a doctrinal statement or a statement of religious practices, along with a statement that members of the institution community must engage in the religious practices of, or espouse a personal belief in, the religion, its practices, or the doctrinal statement or statement of religious practices.

(5) That the educational institution has a published institutional mission that is approved by the governing body of an educational institution and that includes, refers to, or is predicated upon religious tenets, beliefs, or teachings.

(6)  Other evidence sufficient to establish that an educational institution is controlled by a religious organization, pursuant to 20 U.S.C. 1681(a)(3).

 

Press release

 

Fact sheet

Putting Policy Into Practice Series: Blog Post 6

 

New Title IX Rules: OCR Does Not Require Retroactive Application, But Courts Might

 

October 26, 2020

 

As universities, colleges and schools worked diligently over the summer to put new policies and procedures in place by the August 14 implementation deadline for the new Title IX regulations, OCR released a blog on the retroactivity of the new regulations. Issued on August 5 and titled “The Title IX Rule is Effective on August 14, 2020, and is Not Retroactive”, the OCR blog said the following:

 

As schools plan and prepare for implementation of the new Title IX Rule, which is effective on August 14, 2020, the Office for Civil Rights (OCR) has received a number of questions regarding whether the Title IX Rule applies retroactively. It does not. OCR will enforce the new Title IX Rule only when it becomes effective, and will enforce the new Rule prospectively. 

 

Consistent with the Department’s statements in the preamble to the Title IX Rule regarding non-retroactivity, the Rule does not apply to schools’ responses to sexual harassment that allegedly occurred prior to August 14, 2020.  The Department will only enforce the Rule as to sexual harassment that allegedly occurred on or after August 14, 2020.  With respect to sexual harassment that allegedly occurred prior to August 14, 2020, OCR will judge the school’s Title IX compliance against the Title IX statute and the Title IX regulations in place at the time that the alleged sexual harassment occurred.  In other words, the Rule governs how schools must respond to sexual harassment that allegedly occurs on or after August 14, 2020.

 

And yet, Title IX practitioners are now faced with a contradictory court ruling issued October 16th by the Northern District of New York in Doe v. RPI.  This case concerns an event of alleged sexual assault that took place in January of 2020. Doe disagreed with RPI’s findings, which concluded August 11, 2020. His request for an appeal and challenges to the procedures to be used for his disciplinary hearing took place after August 14. As described by the Court in its October 16 decision, “Doe and his counsel, naturally interested in the new rules’ additional protections for students accused of sexual assault, spoke to defendant’s Title IX coordinator to request that the remainder of his investigation and his impending disciplinary hearing be conducted under the 2020 policy. Citing the OCR post, defendant’s Title IX coordinator responded that his hearing would follow the 2018 policy because the new rules were not retroactive.”

 

Doe objected to RPI’s continued use of its previously existing 2018 procedures for the disposition of his case and filed suit in N.D.N.Y, requesting a preliminary injunction preventing RPI from using is 2018 procedures. The Court ruled in Doe’s favor, saying that defendant RPI should use its new procedures for the remainder of Doe’s case.

 

In reaching its decision, the Court seemed troubled that RPI was choosing the administrative headache of maintaining two separate procedures – one for pre-August 14, 2020 cases and one for post-August 14, 2020 cases – particularly when the new procedures provide for more due process safeguards:

 

[RPI] decided that it would be best to maintain two parallel procedures solely to ensure that at least some respondents would not have access to new rules designed to provide due process protections such as the right to cross-examination that have long been considered essential in other contexts.

 

The Court also continued,

 

Such disregard for the inevitable administrative headaches of a multi-procedure approach certainly qualifies as evidence of an irregular adjudicative process. Similarly, the Court finds that a school’s conscious and voluntary choice to afford a plaintiff, over his objection, a lesser standard of due process protections when that school has in place a process which affords greater protections, qualifies as an adverse action. That is precisely what RPI did in this case.

 

Takeaway: We have been following OCR guidance in our own guidance to clients and Community Partners. Nonetheless, courts are not bound to follow OCR guidance. While OCR won’t penalize a school for using previous Title IX procedures to investigate alleged misconduct pre-dating August 14, a court might. And while other courts may reach a different conclusion, institutions subject to Title IX should carefully consider whether to maintain two separate policies for conduct that occurred before and after August 14, 2020. As a team we will be re-evaluating our advice going forward in light of this court ruling.  Bottom line, the Title IX landscape continues to shift and we will continue to be responsive to these shifts.

 

Need assistance implementing your new Title IX policies and procedures? Contact us for more information.

 

Putting Policy Into Practice Series: Blog Post 5

 

Perfection is NOT the Standard

 

October 1, 2020

 

Here we are, in the uncertainty of the year 2020, in the middle of a pandemic, and a month and a half into the work under new Title IX policies. This is different. This is hard. This is exhausting. But you, as Title IX professionals, continue to make a difference. Don’t forget it.

 

There is a lot of pressure in the Title IX world. Pressure to do it quickly. Pressure to do it right. Pressure to please everyone. Now, more than ever, it is important to remember that perfection is NOT the standard. You will make mistakes. Period. Those mistakes will not define you. However, the ways in which you respond to those mistakes are significant.

 

Take the time and effort to correct the mistakes.  Often we try to find the easy fix, or at least one that doesn’t highlight our mistakes. Conversely, the answer is in transparency.  Explaining a mistake and correcting it equitably is the key.  Send a new notice, update the parties, allow for equitable extensions, or do whatever needs to be done to make it right. Then, clearly articulate the next steps to the parties. This may delay the process, but it is better to correct the error in real time than to have to explain it on appeal or in litigation later.

 

We are all human, and the pressure is real. We need good, solid, humans doing this work. The kind who own their missteps but give themselves and each other some grace. The kind who believe in doing the right thing. The kind who build each other up and have each other’s back.

 

As you navigate these uncharted waters, remember that you are not alone. There are other professionals out there directing these processes alongside you while making similar mistakes. Pivot and correct in the moment, be a good teammate, and don’t be too hard on yourself. The Title IX world needs you.