Title IX: OCR Is Not the Only Game in Town, the Game Will Also Be Played in Courtrooms

We expect the Department in the Biden administration to take administrative actions in higher education, and two of the most closely-watched areas of regulatory action in higher education will be Title IV, HEA and Title IX of the Education Amendments of 1972. This blog post focuses on Title IX. Click here for our blog post on Title IV, HEA.

In the wake of the issuance by the U.S. Department of Education of the Title IX regulation on sexual harassment, many college and university leaders looked for a way to minimize the applicability of the regulation. The Title IX regulation, which became effective on August 14, 2020, requires prompt access to supportive measures for complainants and enhanced due process protections for the accused.

While critics of the Title IX regulation are eager to provide supportive measures to individuals (generally, females) who report complaints of sexual harassment, they are reluctant to provide enhanced due process protections for the accused (generally, males). Beyond being a constitutional protection for individuals against the federal and state government, “due process” is a longstanding principle of fairness in our country that places the burden of proof upon the accusing entity and facilitates the discovery of the truth. Many administrators nonetheless opposed the newly required due process enhancements, including where the accused faces the possibility of suspension or expulsion.

Critics of the Title IX regulation have asserted that providing enhanced due process, such as the right to cross examination, will intimidate complainants from coming forward and, therefore, traumatize complainants and set back efforts to promote a safe community. They have also asserted that providing the accused with more due process will turn the disciplinary proceedings into quasi-criminal adjudications and, thus, diminish their educational objective.

While many institutions are now focused on the potential for a recission of the Title IX regulation and counting down the days until it is announced, they are missing the larger point: With the issuance of the Title IX regulation, Title IX litigation in the courts will never be the same.

To begin, we agree with predictions of the Title IX regulation’s demise, though we do not anticipate a wholesale recission of the regulation. Rather, we think the Department will surgically remove some provisions and leave others. 

Even before the Department takes its scalpel to the regulation, though, we expect the Department’s Office for Civil Rights (OCR), which enforces the regulation, to announce a policy statement of non-enforcement and to re-issue Obama-era guidance documents while the regulation is under agency review. Such an action will eliminate the regulation’s teeth and will lead institutions to believe that they can safely return their sexual harassment policies to pre-regulation form. 

However, institutions will do so at their peril. 

OCR regulatory enforcement is enormously consequential, but it is not the only game in town. Institutions are also subject to the jurisdiction of the courts when it comes to Title IX. It is well-established that Title IX provides a “private right of action,” which is legal-speak for lawsuits against institutions where it is alleged the institution committed discrimination on the basis of sex.

In adjudicating lawsuits, the courts are not bound by OCR’s regulatory enforcement discretion. Courts may examine, and at least one court has already examined, whether an institution’s failure to provide the regulation’s enhanced due process protections constitutes a legal claim against the institution, even under circumstances in which OCR would not consider it a regulatory violation. 

On October 16, 2020, in John Doe v. Rensselaer Polytechnic Institute, U.S. District Judge David N. Hurd of the Northern District of New York issued a preliminary injunction halting an institution’s sexual harassment disciplinary proceeding until the conclusion of the lawsuit. The court held that the student had demonstrated a likelihood of success on a Title IX claim against his institution. 

The institution, which had two sets of procedures for sexual harassment matters – one set of procedures for alleged conduct that occurred prior to the August 14, 2020 effective date of the Title IX sexual harassment regulation, and a new set of procedures with enhanced due process protections for alleged conduct that occurred on or after that effective date – insisted on using the former set of procedures to adjudicate the student’s pre-August 14, 2020 alleged conduct.

The fact that the institution maintained two sets of procedures for the same types of alleged misconduct, based solely on whether the conduct occurred before or on/after August 14, 2020, did not sit well with the court. As the court stated, the institution did so “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 characterized the denial of enhanced due process rights under these circumstances as a “disregard for the inevitable administrative headaches of a multi-procedure approach.” It concluded that the institution had, thus, taken an “adverse action” against the accused and had engaged in an “irregular adjudicative process,” two important elements of a Title IX claim. Ultimately, the court determined that, despite the institution’s assurance that it uses its two sets of procedures without regard to the sex of the accused, the student’s sex was indeed the motivating factor in the institution’s “multi-procedure approach.”

It remains to be seen whether other courts will follow Judge Hurd’s lead in looking disdainfully upon an institution’s maintenance of two sets of sexual-harassment procedures. Many institutions, like Princeton University, proudly announced the creation of two sets of procedures in response to the Title IX regulation – one set of procedures for sexual misconduct covered by the Title IX regulation, and a separate set of procedures with less due process protections for sexual misconduct that the institution purports to be sexual misconduct that falls outside of the regulation’s reach. 

Regardless, the court’s holding and its reasoning should give an institution pause before it ever returns to its pre-regulation ways. After all, if a court can hold that maintaining two sets of procedures constitutes evidence of sex discrimination, then it can certainly find that the sudden elimination of new procedures beneficial to an accused constitutes sex discrimination, especially considering that institutions have been trained on the new procedures and have used them for a period of time.

Therefore, an institution that hastily responds to a potentially forthcoming non-enforcement policy statement and/or an eventual full or partial rescission of the Title IX regulation may find itself in a precarious legal position. In the meantime, if an institution currently has two sets of disciplinary procedures, it should reconsider the wisdom of that approach.

Jonathan A. Vogel, a former deputy general counsel with the U.S. Department of Education and a former federal prosecutor, is the managing attorney of Vogel Law Firm PLLC, an education law firm focused on legal issues that arise in K-12, higher education, and student loans.

Categories: Higher Education.