Recent Title IX Developments
January 17, 2017
Nexsen Pruet’s Title IX team assists educational institutions in Title IX compliance. The team’s primary focus includes assisting with Title IX complaint investigations and serving as adjudicators. The team also provides assistance with policy writing and training of staff, investigators, and hearing panels. The team provides Title IX related services to educational institutions nationally.
Hunter College of the City University of New York
In October 2016, OCR released a Resolution Letter and Resolution Agreement regarding its investigation of Hunter College of the City University of New York. OCR’s investigation largely focused on whether Hunter College responded promptly and equitably to sexual harassment and sexual violence complaints and whether the complainant was subject to retaliation as a result of filing a sexual harassment complaint against a professor. Specifically, in relation to her claim of retaliation, the complainant alleged that the College retaliated by prohibiting the complainant from registering for classes and rescinding an offer to modify the payment terms of the complainant’s outstanding tuition balance.
In concluding that Hunter College’s response to the complainant’s sexual harassment report was not prompt and equitable, OCR noted that Hunter College took approximately four months to conduct its investigation. OCR further noted that while Hunter College did not provide the complainant with the outcome of the investigation until approximately seven months after she made the report, the College provided preliminary investigation results to the accused professor immediately. OCR further concluded that the College did not take measures to assess and address effects of a possible hostile environment stemming from harassment by the accused professor.
OCR found no evidence of retaliation against the complainant, and specifically noted that to determine whether retaliation occurred, OCR must review whether the prima facie elements of retaliation are present:
- whether the complainant engaged in a protected activity;
- whether the complainant experienced materially adverse action by the College; and
- whether a causal relationship exists between the protected activity and the materially adverse action.
OCR concluded that the third element was not satisfied in this case, as the alleged adverse action occurred before the complainant filed her sexual harassment report against the professor.
Also in October of this past year, OCR released a Resolution Letter and Resolution Agreement in relation to its investigation of Wesley College. The investigation was initiated with OCR by the mother of a male student accused of live streaming a female student engaging in a sexual act with another male student, without the female student’s knowledge of the live streaming. Upon conclusion of its investigation and Judicial Board Hearing, Wesley expelled the accused. The accused’s mother, in her complaint to OCR, alleged that Wesley discriminated against the accused on the basis of his sex by subjecting him to an inequitable grievance and appeal process. OCR concluded that Wesley College violated Title IX by its failure to provide the accused with procedural protections and failure to adhere to the safeguards provided in Wesley’s disciplinary policies and procedures. Specifically, OCR found that the accused was not provided a full opportunity to respond to the charges against him, to rebut the allegations, or to defend himself at the hearing. OCR expressly noted the following concerns:
- the accused’s interim suspension was imposed on the same day that Wesley received the report against the accused, and before Wesley interviewed the accused;
- the accused was not interviewed during the investigation;
- Wesley provided the accused with the wrong policies and procedures, resulting in the accused not being afforded his resolution options;
- the accused did not receive a copy of the incident report, or the information contained therein, prior to the hearing;
- the accused was not provided a full opportunity to provide witnesses and other evidence at the hearing; and
- the accused may not have received sufficient time to participate in the process, as the accused was expelled seven days after being notified of the charges.
OCR identified multiple, additional concerns as a result of the investigation—deficiencies with Wesley’s Notice of Non-Discrimination; deficiencies in the training of Wesley’s Title IX coordinator, its Title IX team, and the college community; deficiencies in Wesley’s policies and procedures, both as written and as implemented; and deficiencies in Wesley’s record keeping practices.
Particularly of note, OCR expressed concern that, in imposing immediate suspensions without conducting sufficient assessment of risks to the community and considering the rights of all parties, Wesley may not be providing accused students with basic procedural protections. OCR provided guidelines for the factors an institution may weigh in determining whether an interim suspension is an appropriate interim remedy:
- circumstances that suggest a risk to the greater school community;
- risk that the accused student will commit additional acts of sexual harassment or sexual violence;
- whether there have been other sexual harassment or sexual violence complaints against the accused;
- whether the accused threatened further sexual harassment or sexual violence against the victim or others; and
- whether the sexual harassment or sexual violence was committed by multiple actors.
University of Cincinnati
In November 2016, the U.S. District Court for the Southern District of Ohio, Western Division, granted a motion for preliminary injunction, enjoining the University of Cincinnati (“UC”) from imposing disciplinary sanctions on a student during the pendency of the student’s due process claim against UC. UC had previously found the student responsible for violating UC’s Student Code of Conduct in relation to a sexual assault and imposed a one-year suspension. In granting the motion for preliminary injunction, the Court reasoned that the accused student had adequately demonstrated a likelihood of success on the merits of his due process claim against UC. The Court noted that in its investigation of the sexual assault incident, UC’s hearing committee was given the choice of believing either the accused student or the complainant, and thus, an opportunity for cross-examination was essential to satisfy due process. UC’s disciplinary process allowed parties to submit questions to the hearing committee chair who had discretion as to whether to ask those questions at the hearing. The Court acknowledged that in some cases, such a method of cross-examination would not constitute a violation of due process. However, the Court stated that the accused student was effectively denied the right to cross-examination because he was not notified in advance of the hearing that the complainant would not be present (during the hearing, the accused student was informed that he would have had the opportunity to ask questions of the complainant if she had been present at the hearing). The Court clarified that it did not mean to imply that UC’s procedures must require the complainant to be present at the hearing; however, noted that the accused student should have had the opportunity to submit questions for cross-examination in accordance with UC’s Student Code of Conduct.
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.