July 11, 2017
Office for Civil Rights Indicates Changes to Investigation Protocols
The Department of Education’s Office for Civil Rights (OCR) has reportedly released an internal memorandum indicating a change to its investigation protocols. The memorandum to OCR’s Regional Directors from its Acting Assistant Secretary for Civil Rights, Candice Jackson, states that OCR is abandoning its existing practice of requiring three years of past complaint files from the institutions that it investigates. The memorandum indicates that the investigative team now has authority to determine what information is necessary to review based on the allegations of the individual complaint. Going forward, OCR investigations will only apply a “systemic” or “class action” review approach in instances where a complaint’s allegations raise systemic or class-wide issues or where the investigative team determines that the complaint warrants such an approach.
Fifth Circuit Reverses $4.5 Million Judgment Against School District in Title IX Case
In a June 15, 2017 Opinion, the United States Court of Appeals for the Fifth Circuit reversed the lower court’s judgment that had awarded $4.5 million dollars to the Plaintiff in relation to his Title IX claim. The Plaintiff was a student at an elementary school within the school district while the perpetrator was a vice principal at the school and molested the Plaintiff over a series of years. The parties stipulated that the perpetrator was the only employee or representative of the district who had actual knowledge of the abuse at the time that it occurred. The parties also stipulated that the abuse violated district policies. Undisputed testimony established that the perpetrator, as a vice principal, and later principal within the district had authority to address gender discrimination and sexual harassment during the period that the molestation occurred. The Plaintiff argued that because the perpetrator was an official of the school district who had authority to institute corrective measures on the district’s behalf, had actual notice of the abuse, and was deliberately indifferent to his abusive conduct, the school district should be liable for damages under Title IX. The Fifth Circuit held that the private right of action under Title IX does not extend liability to a school district where the only employee of the school district with actual knowledge of the discrimination was the perpetrator himself, even where the perpetrator had authority to enact corrective measures on behalf of the school district to end the discrimination. In overturning the lower court’s ruling, the Court reasoned that “requiring a recipient of Title IX funds to respond in damages when its employee sexually abuses a student and the only employee who has actual knowledge of the abuse is the offender does not comport with Title IX’s express provisions or implied remedies.”
Secretary DeVos Hires Deputy Assistant Secretary for Higher Education Programs
U.S. Secretary of Education, Betsy DeVos, has hired Adam Kissel as Deputy Assistant Secretary for Higher Education Programs, Office of Postsecondary Education. As relayed by the Department of Education’s website, the Deputy Assistant Secretary for Higher Education Programs is responsible for providing “overall leadership for overseeing, administering, and coordinating discretionary and formula grants and contracts, and providing other services to foster equal access to and excellence in higher education.” Kissel is a former Program Director for the Koch Foundation and the former Vice President of Programs for the Foundation for Individual Rights in Education (FIRE).
Over the years, Nexsen Pruet attorneys have represented more than 150 public and private colleges, universities, K-12 schools, and foundations in the Carolinas. Sign up to receive legal updates about Title IX from the Nexsen Pruet team.
Nexsen Pruet's Title IX team provides updates as a courtesy to contacts and clients -- for informational purposes only, not legal advice. If you have questions, please contact Devon Riley at 843.720.1737.