New Resource: 2017 Respondent Litigation Summary Chart

By Debbie Osgood and Jonathan Helwink

HMBR is regularly invited to discuss the latest Title IX trends at trainings, sessions, and workshops with Title IX administrators and higher education leaders. We are often asked: What are the courts doing in student respondent litigation? What steps can we take to lessen our risks in this area?

With these questions in mind, HMBR put together a summary – in chart form – of the key 2017 student respondent court cases across the country.  The 64 cases included are primarily from federal courts (with six appellate court decisions), but we reviewed state level cases as well, and included those that we thought were relevant.  The chart is organized by the federal circuit and includes the name of the case, a brief summary of the facts, a non-exhaustive list of the claims made by the student respondents, and the outcome of the litigation.   In each case, the student was accused of a violation of the college or university’s sexual harassment or sexual misconduct policies.

We hope that the chart is a valuable resource for institutions looking to stay updated on the current environment of student respondent litigation across the nation.

All of the federal cases are up-to-date, as of the time of the publication of the chart.  And, yes, HMBR is already updating the chart for 2018 and will continue to update the chart throughout the year.

For tips on steps to take now to avoid Title IX litigation, read our previous blog post. Please also feel free to directly contact us to discuss specific questions or issues.

To access the complete chart, click here: RespondentLitigationChart

OCR Snapshot – Greater Transparency: OCR Publishes Online List of All Open Cases

By Debbie Osgood and Jonathan Helwink

The website for the U.S. Department of Education, Office for Civil Rights (OCR), now includes a complete list of all open cases under investigation at OCR.  Unlike the widely-cited “Title IX Tracker,” which includes open OCR sexual violence cases at colleges and universities, OCR’s new list includes:  all schools and all of the civil rights laws enforced by OCR.  This means that the list includes cases open against colleges, universities, and elementary and secondary school districts and that the issues include alleged discrimination on the basis of sex, race, national origin, color, disability, or age, and under the Boy Scouts of America Equal Access Act.  You can find the most recent list here.

Here are some interesting statistics from the database so far:

  • Total number of searchable records for all allegations: 8,306
  • Specific types of cases include:
    • Race and National Origin Discrimination: 1,772 (21%)
    • Sex Discrimination: 1,676 (20%)
    • Disability Discrimination: 4,709 (57%)
    • Age Discrimination: 147 (1.7%)
    • Boy Scouts Act: 2 (under 1%)

The list is searchable by type of discrimination and, under each type of discrimination, there are options to look for the cases by specific category. Regarding sex discrimination, for example, you can look for cases relating to athletics or sexual violence.

OCR, which plans to publish updates to the list on the first Wednesday of each month, emphasized that an institution’s inclusion on the list does not mean that it violated a federal anti-discrimination statute. Instead, inclusion means that a complaint was filed with OCR and the agency determined that an investigation should be opened or that the agency has opened a compliance review.

The list will not include cases that are being evaluated by the agency, i.e. cases where OCR has received a complaint, but has not yet made a decision as to whether to open a case, or cases that OCR has closed.

The list, which is also searchable by state or the institution’s name, is organized according to the types of discrimination issues under investigation and not by the number of open investigations at an institution. As a result, a school may appear in search results multiple times if OCR is investigating the school for more than one type of alleged discrimination, even if the allegations stem from a single case. Similarly, a school may appear only once in the search results if OCR is investigating it for only one type of alleged discrimination, even if there are multiple open cases.

A Faculty’s Right to Teach: Does Academic Freedom Protect a Teacher’s Techniques in the Classroom?

The story of the UPenn grad student, her twitter account, and her teaching techniques started like many of these stories.  The snowball started to roll when The Daily Caller, a popular conservative news site, ran a story entitled: “Ivy League Teaching Assistant Says She Calls on Black Women First, White Men Last.” Earlier in the day, The Chronicle of Higher Education article on the story read: “Grad Student Sounds Alarm Over Penn’s Response to Online Attacks.”  The following day, the article’s title at Campusreform.org read “UPenn TA Boasts of Calling on White Male Students Last.”  The next day, Reason.com wrote an article entitled: “This UPenn Teacher Justifies Her Refusal to Call on White Male Students: It’s ‘Progressive Stacking.’”

As far as some of these stories have gone lately, this one has not exploded—at least, not yet—like some of others, those which continue to surround Drexel professor George Ciccariello-Maher come to mind.  However, for those who have weighed in, the grad student’s chosen teaching technique has been polarizing.  Since the story broke, the University of Pennsylvania has pulled the grad student from the classroom pending an investigation, cancelling their classes last week.  So what is so controversial? And could their behavior be protected by academic freedom?

The crux of the issue is that a grad student, Stephanie McKellop, who uses they/them pronouns, wrote a series of Twitter posts about their teaching techniques.  Most controversially, McKellop wrote: “I will always call on my black women students first. Other POC [people of color] get second tier priority. WW [white women] come next.  And, if I have to, white men.”  After pulling McKellop from the classroom, the Dean of the Penn School of Arts and Sciences wrote that the university is committed to providing “respectful work and learning environments for all members of our community,” adding “We are looking into the current matter involving a graduate-student teaching assistant to ensure that our students were not subjected to discriminatory practices in the classroom and that all of our students feel heard and equally engaged.”

The teaching method in question is “progressive stacking.” The technique, which was first used during the Occupy movement though some say it goes back to the 1990’s, is not widely employed in academia.  Described as a “leveling process,” advocates argue that the method ensures that voices that are often submerged, discounted, or excluded from traditional classroom discussion get a chance to be heard.  It works like this: the professor asks a question; a number of students’ hands go up (the stack); the professor calls on students that they deem to be from historically marginalized groups first.  Nolan L. Cabrera, an associate professor at the University of Arizona, spoke to The Chronicle to explain that the technique is simply “an acknowledgment that traditional pedagogical techniques have silenced marginal voices.”  He added that it is not much different from what many professors do when calling on students who have not yet contributed to classroom discussions.

While the investigation progresses, it is important to ask whether the “progressive stacking” teaching technique is covered by academic freedom.  The answer is, like it so often is in these questions, “maybe.”

In the 1940 Statement of Principles on Academic Freedom and Tenure, the AAUP addressed classroom teaching.  The AAUP writes in its Second Principle: “Teachers are entitled to freedom in the classroom in discussing their subject.”  The UPenn Academic Freedom and Responsibility Policy mirrors that language.  The AAUP passage has been interpreted to mean that teachers have a great deal of freedom to run their classroom as they see fit.  This freedom includes how a professor chooses to teach their class, the coursework the professor assigns, and the manner in which the professor presents their material.

However, that freedom is limited.  The introduction of irrelevant and controversial material would not be protected by academic freedom, such as the introduction of blatantly political mathematical word problems.  Courts, and college disciplinary boards, have required that teachers deliver a class consistent with the applicable course description contained in the college catalog.  Providing clarinet lessons half-way through the semester of a Sociology 101 course would not be protected and neither would teaching undergraduate chemistry students basketball in the laboratory.  Even the most radical advocates would agree that abusive language, assaultive speech, or bullying in the classroom, toward a student, by a professor would not be protected by academic freedom.

In addition, ineffective or disruptive teaching methods can lead to discipline as well.  Repeatedly reading aloud from the textbook for entire class periods, excessive class time spent on non-content activities, and consistently showing YouTube videos instead of teaching are all examples of situations that could lead to administrative discipline that would not violate academic freedom principles.

On the other hand, there is a great deal of flexibility in what would be protected by academic freedom in the content presented to students.  Teaching the American Revolution through the lens of communism might be odious to some, but the professor’s material and presentation would most certainly be protected.  Teaching about the, supposed, economic efficiency of slavery would be covered by academic freedom as well, even if some of the students might be offended.  The extent of this flexibility, however, is unclear: would it prevent a Christian professor from teaching Biblical creation instead of Darwinian evolution in a biology course? Or a contemporary historian who teaches that the 9/11 attacks were an “inside job”?  The truth is that this area of the law is underdeveloped, making definitive statements unwise. In cases like the ones mentioned here, the determination likely would come down to context.  If the teacher is using academic techniques, consistent with the standards of their discipline, it would be difficult to conclude that these professors should be disciplined for the content they deliver in their classrooms.

Similar flexibility applies to teaching techniques.  Choosing to lecture to a psychology class would absolutely be protected, so would deciding to teach certain subjects in the course through group project work.  If the method is widely accepted or is a traditional teaching method, arguing whether its incorporation into a classrooms merits discipline is a difficult position to prove.  Whether or not the technique is the most effective teaching method is immaterial.  Realistically, if professors were left to only the administration-approved, most effective teaching methods, the creativity that professors bring to their work would be unjustly stifled, making college courses significantly more boring.

Which brings the inquiry back to McKellop and their use of the “progressive stacking” method. McKellop is under investigation for violating UPenn’s nondiscrimination statement.  As the facts stand, it is hard to see how their use of “progressive stacking” is, in fact, discriminatory, especially since McKellop did not say that they refuse to call upon certain students or denies any student the opportunity to speak in class based on their gender, race, etc.  It is possible that the original complaint that brought McKellop to the attention of the administration contains more evidence of discriminatory behavior.  If that is the case, academic freedom cannot be said to protect such discriminatory behavior and her teaching techniques may need to be modified.  But pending more damning evidence, McKellop’s “progressive stacking” technique, even if offensive to some, is likely covered by the AAUP’s definition of academic and UPenn’s own academic freedom policy.

McKellop’s story does contain a lesson for other colleges.  Academic freedom is a messy, disorganized, and muddled privilege.  In addition, academic freedom protections are widely misinterpreted, misapplied, and misunderstood by college administrators, faculty, and the public.  On campus, some of that confusion can be remedied by better education and training of both faculty and administrators—something that the attorneys at HMBR can provide.  Regarding the public, however, institutions that defend and define academic freedom are critical in a time where colleges and their faculties are routinely and harshly criticized by individuals from across the political spectrum.  Colleges and universities need to be equipped to defend their institutional principles, like academic freedom, when under attack from outsiders, while also being prepared to protect them from unwarranted and expansive faculty interpretations.  This is a difficult situation to be in, but academic freedom, as a principle, is worthy of a robust defense.

Mergers Ahead for the University of Wisconsin System: Do Declining Enrollments and Shifting Demographics Mean Big Changes for UWisc??

Across the nation, college admission boards and administrations are beginning to plan ahead for a, potentially, major crisis on the horizon.  Between 2011 and 2016, college enrollment dropped by 8%.  The declines were concentrated mostly in community colleges and for-profit schools, however, public institutions saw declines as well.  Explanations for the decline have ranged from high profile student protests on campus turning off would-be enrollees to a gradual rebound in the national economy cooling returning students’ interest in revisiting the classroom.  No matter the explanation, some states have proactively undertaking plans to address these declines in enrollment before they can “shock” their systems.

The most ambitious of these recent plans was unveiled earlier this month by the University of Wisconsin System’s President, Ray Cross.  The President’s plan is for most of the state’s public two-year colleges to merge with public four-year institutions that are geographically nearby.  Following the merger, the two-year colleges would cease to exist as independent institutions and, instead, become branch campuses of the four-year institutions.  The students of the two-year colleges would continue to pay a reduced tuition rate, about half the tuition at the four-years.  Mr. Cross hopes that the closer relationships between two- and four-year universities will encourage students to transfer to the 4-year institutions to complete their Bachelor’s degrees.

For the President of the system, the reasons for this merger plan, and its prompt implementation, could not be more clear.  Mr. Cross commented that this proposal, which is expected to be heard by the UWisc Board of Regents during the November meeting, is intended to address two serious issues.  First, enrollments at the two-year colleges are dropping.  For example, between 2010 and 2017, UW-Manitowoc, a two-year college, lost fifty-two percent of its enrollment.  At another two-year school, UW-Marathon, the percentage drop was fifty-one percent.  Even the two-year colleges with the lowest enrollment drops lost an alarming number of students: UW-Rock County (down 28%) and UW-Waukesha (down 29%).  Mr. Cross spoke of the need to continue offering courses to the communities served by these institutions, but shared concern about the possible shuttering of these campuses if major changes were not put in place.  The second reason cited for the change was years of budget cuts coming out of Madison.  The mergers are expected to cut costs, while allowing two-year institutions to remain open for the foreseeable future—something that is not guaranteed by the status quo.  Mr. Cross told reporters that he expects to save money by cutting duplicative departments and services that will now be combined, including in human resources, student services—such as financial aid staff and student advising—and IT operations. No faculty cuts are expected as a result of the mergers.

The proposal has not met with universal enthusiasm.  Faculty groups and the Wisconsin Center for the Advancement of Postsecondary Education (WISCAPE) reacted with skepticism.  While acknowledging the difficulties resulting from the drop in statewide enrollment, demographic trends, and the necessity of a proactive response, the groups reacted strongly against the President’s timeline.  Referring to the proposal’s announcement and proposed vote schedule as “folly,” they called upon the President and the Board to allow for public comment on the proposal and for an opportunity for revisions before it is offered to the Board for a vote.  Viewing the proposal as part of a continuing attack on faculty in the UWisc System, they questioned the logic of the proposal and called for additional study to be completed before implementation.  WISCAPE echoed the faculty’s concerns and added that the basis for the proposal—shifting demographics—may be unfounded, questioning whether the proposal would serve the state’s increasing population of high school students of color.

Even though it may represent the most sweeping changes to a state-wide college system yet, the UWisc plan is not the first of its kind.  Similar restructurings have been attempted in Maine, Vermont, and Georgia.  In addition, in states like New Jersey, Pennsylvania, and others, restricting plans have been introduced, only to be later shelved or postponed.  The plan most similar to UWisc, Georgia state’s adopted plan, calls for mergers to be announced in waves over time. This is a stark difference from UWisc’s plan for dramatic changes all at once.  In some ways, the UWisc plan is a “back-to-the-future” plan for the Badger State: UWisc’s two-year and four-year colleges were combined into single institutions until they were separated in the 1960’s.

Even if the faculty groups who oppose the plan get the UWisc plan postponed or cancelled, there are likely to be similar efforts in other state-wide systems in the near term.  That means that the issues raised in the restructuring plan will remain the same.  On the faculty side, those issues include: tenure, faculty seniority, hiring criteria, and academic freedom issues.  The UWisc proposal provides no specifics on these details.  While President Cross did not mention any faculty layoffs, faculty members remain concerned about the related issues.  For example, faculty expressed concern over hiring criteria.

Not all institutions in the UWisc system contain the same hiring criteria, which is especially true between two-year and four-year institutions.  For example, most two-year institutions only require a Master’s degree to be an instructor, while four-year institutions require a terminal degree, usually a Ph.D.  When UW-Barron County, a two-year institution, mergers with UW-Eau Claire, a four-year institution, which institution’s hiring criteria will be followed? The resolution of this issue seems to fall to the local college administrators.  In addition, faculty seniority issues will have to be addressed.  If, for instance, departments chose their classes “round-robin” style—each instructor taking one class at a time—who will go first? The merger does appear to address duplicative department issues, but does not address duplicative class schedules.  There are additional academic freedom and disciplinary issues that may need to be addressed when the mergers finally do occur.

With the proposal set for a vote at the UWisc Board meeting in November, the system’s merger process could begin quickly.  It will be worth watching whether UWisc’s “canary in a coal mine” plan will become a model for other states to follow when addressing the changing demographics of their own student populations or if it is a proposal that is better to avoid altogether.

New Religious Liberty Guidance Issued by Justice Department: What are the Ramifications for Colleges?

On October 6th, Attorney General Jeff Sessions published guidance issued to all federal administrative agencies and departments interpreting religious liberty protections under federal law.  The memorandum, delivered pursuant to President Trump’s Executive Order in May, interprets existing protections of religious liberty and identifies twenty high-level principles that federal departments and agencies can put into practice to ensure religious freedoms are protected.

Stating that “to the greatest extent practicable and permitted by law, religious observance and practice should be reasonably accommodated in all government activity,” the memorandum lists the twenty principles that it views as paramount to the protection of religious liberty.  The principles begin stating that the freedom of religion is a fundamental right, to act or abstain, held by persons and organizations, that is not shed when participating in a marketplace, public square, or interacting with the government.  In addition, government may not favor or disfavor religious groups and may not interfere with the autonomy of religious organizations.  The memo incorporates the protections of the Religious Freedom and Restoration Act of 1993 and Title VII of the Civil Rights Act of 1964.  Included by the DOJ is a recognition of religious employers’ entitlement to employ only persons who beliefs and conduct are consistent with the employers’ religious beliefs.  Finally, the memo recognizes that a religious organization is entitled to compete on equal footing for federal financial assistance and that the federal government may not require that the religious character of the organization be altered, in any way, to participate in the government program.

In addition, AG Sessions also released an Implementation Memo directing the DOJ to incorporate the interpretative guidance in “litigation strategy and arguments” and “all other aspects of the Department’s work.”  The second memo directs the DOJ’s Office of Legal Policy to review “every Department rulemaking and every agency action” for review under the guidance.  In addition, Attorney’s General are instructed to notify the Department of litigation, operations, and grants that raise novel and material religious liberty issues.

At this point, the Department of Education has not responded to this memo.  It is safe to assume, for the time being, that the Dear College Letter (Sept. 14, 2004) on religious discrimination is still in effect, but changes could be down the road, including a Department of Education implementation memo similar to the one issue by the DOJ.

Even without the implementation memo, there are some indications of how the Trump Administration will look at religious freedom issues on campus and what their approach will be.  Mentioned in an earlier blog post a couple weeks ago, the DOJ filed a Statement of Interest (SOI) in the Northern District of Georgia case, Uzuegbunam v. Preczewski. (See previous blog here.)  The plaintiff in that case, a student at Georgia Gwinnett College, a public institution, sued the school for limiting his evangelizing on campus to two small free speech zones, which he claims encompasses 0.0015% of the college’s campus.  When he requested approval to preach, the college informed him that its “disorderly conduct policy” forbid anyone from engaging in “fire and brimstone” speech.  The student sued the college for violating his First and Fourteenth Amendment rights.

The case marries AG Sessions two priorities of the past couple weeks, campus free speech and religious liberty, (See our blog post on the former issue here) and signals DOJ’s renewed attention to this issue.  Clearly, AG Sessions has taken a keen interest in religious freedom issues, but whether the SOI means heightened scrutiny for religious freedom issues on campus is yet to be seen, but early indications make additional DOJ attention likely.  HMBR will continue to monitor these developments as they happen on this issue and will inform you when new information comes available.

Criminal Charges Against College Basketball Coaches: Are Major Changes Ahead for College Sports?

With Jay Rossello.

On September 26th, federal officials announced criminal charges against ten individuals, including four college-basketball coaches.  The charges included bribery, corruption, and fraud.  To some, the charges are a black eye on college basketball, but not an indicator of systemic problems with the NCAA.  For others, the charges are an example of the graft and exploitation endemic to college sports and an opportunity to enact the major changes that they think college sports desperately need.

While the specific allegations against each defendant differ, a distinct pattern does emerge in the indictments.  Businessmen, primarily talent managers and financial advisors hoping to profit off of promising young basketball talents, used assistant coaches to guarantee that the players would be steered toward their business services.  For the indicted coaches, they are accused of accepting bribes for steering, and in one case lying to, players and their families, urging them to sign with agents and financial advisors, without disclosing their own financial relationship to them.   For one businessman, an employee of Adidas, federal prosecutors allege that he made secret payment to guarantee that a high school prospect chose to play at an Adidas-branded university, saying it was good for “potential business.”  That same employee allegedly helped arrange a $100,000 payment to the family of a heavily recruited high school player.

Even though not expressly named in the indictments, Rick Pitino, the famous, and notorious, coach of the University of Louisville men’s basketball team, was placed on “unpaid administrative leave” with the college announcing that his employment would be “reviewed at a later date.”  The move came one day after two unidentified UL coaches were accused of funneling money provided by Adidas to high school prospects.  In June, Pitino’s program was sanctioned by the NCAA for providing prostitutes to players and recruits.

The reaction to the news of the indictments has been one of shock, but not total surprise.  While many suggest that the college basketball world is filled with dark corners of under-the-table payouts and backroom deals, up until now, criminal charges have been rare.  More often, after bombshell reporting, usually by whistleblowers or unhappy agents, the NCAA has stepped in and punished programs, forcing them to forfeit wins, Final Four or Bowl Game appearances, scholarships, or, in extreme cases, suffer the dreaded, death penalty, which bans a school from competing in a sport for at least one year.  This news feels different, however, including one national newspaper that forecasts more coaches possibly facing criminal charges in the future.

Dave Ridpath, president of the Drake Group, which seeks to “defend academic integrity in higher education from the corrosive aspects of commercialized college sports,” referred to the indictments as a wake-up call, adding “I think this truly shows [the] real inability of the NCAA to police college athletics.  I think most everyone knew this was going on.”  Andrew Zimbalist, an economist at Smith College who favors paying college athletes, stated that while the indictments might increase the momentum for changes to the NCAA, the association has survived worse.

NCAA President Mark Emmert called the charges “deeply disturbing” and announced that the NCAA has “no tolerance whatsoever for this alleged behavior.”  Emmert remarked on the “breach of trust” inherent in the charges, calling it “extraordinary and despicable.”

When considering the allegations—and the last few years of alleged wrongdoing across college sports—it is hard not to see the root causes of the biggest problems in college sports at work in the allegations.  The commercialization of the college athletics enterprise, which drives institutions’ pursuit of the best athletes and most talented, and expensive, coaches, will always pose incentives for unscrupulous individuals to profit off the system and provide opportunities for individuals within it to succumb to temptation.

On the other hand, these realities do not necessarily lead to the conclusion that many, like Prof. Zimbalist, make: e.g., that college athletes should be paid.  To do so, would undermine the amateur foundation of the unique college athletics system in this country, likely threaten college sports’ appeal, and otherwise introduce a whole different set of issues (e.g. Title IX), with competing incentives and unscrupulous individuals still to be grappled with.  The cure-all argument—pay the players—of injecting even more money into college athletics could lead to outcomes worse than are present now.  The fact is that, under the current system, student-athletes come to college to both play a sport and pursue academic studies.  The rules of amateur sports govern that effort.

In addition, it is especially hard for a group of a couple of dozen enforcement investigators at the NCAA headquarters to effectively police twelve-hundred or so member institutions, along with their respective staffs, coaches, and student-athletes.  This effort is made even more difficult because the investigators lack subpoena power.  Whether this scandal, or the next one, marks the beginning of the end for the NCAA is hard to predict, but it is unlikely.  The NCAA’s infrastructure is very well-entrenched and there is no viable alternative available to take its place as a college sports’ governing body.

Ultimately, the overarching lesson in this latest scandal is one for college and university presidents, boards, and administrators to heed very closely.  It is doubtful that most big name, high-powered coaches are interested in academic and institutional integrity the way that their academic and compliance counterparts are.  Therefore, it is up to university leaders to choose whether to forego big time athletic administrators and coaches, even legendary ones, who may not have a full commitment to, or interest in, such fundamental aspects of the institutional enterprise.  In the end, the short-term gains fueled by basketball championships or bowl game successes, are bound to be overshadowed by potential sanctions, legal and courts costs, adverse public relations, and an overall tarnished brand that will weigh heavily on institutions for many years after the scandal.

Sessions Calls for a “National Re-Commitment to Free Speech on College Campuses”

On Tuesday, Attorney General Jeff Sessions sharply criticized what he considers incidents of college and universities suppressing free speech, creating “echo chambers” on campus, limiting student expression to “free speech zones,” and allowing protestors to shut down speakers they disagree with by using threats of violence.  While comparing mask-wearing, so-called, “anti-fascist” activists to members of the Ku Klux Klan, Sessions remarked that freedom of thought is under attack on campus and pointed to incidents at Middlebury and the University of California, Berkeley as examples.  Most of the speech was dedicated to recognizing what the AG views as problems on campus, but, significantly, the address indicated the DOJ’s interest in, and attention to, addressing issues of campus free speech and expression.

Outside the speech venue, faculty and students at Georgetown Law School amassed on the school’s steps to protests the AG’s appearance, including taking a knee in solidarity with the NFL players who did the same over the weekend.  Many of the protestors spoke as well, remarking that their actions were a protest against the “chilling of speech” represented by Sessions and the Trump Administration.

In the most important part of the address, Sessions announced that the Department of Justice would step up its efforts to become more involved in campus free speech cases.  That effort included the DOJ filing a Statement of Interest (SOI) in Uzuegbunam v. Preczewski.  In that case, a student is challenging the free expression policies of Georgia Gwinnett College.  The student alleges that the college’s speech policies restrict student expression to “free speech zones” on campus and forbids any expression “which disturbs the peace and/or comfort of person(s)” on campus.  The student, Chike Uzuegbunam, wanted to speak with other students about his religion, but was requested to confine his activities to the campus’ free speech zones.  After meeting the request, college officials ordered him to stop after deeming his actions to be “disorderly conduct” that violated the college’s policies against  “the peace and/or comfort” of others.

The DOJ’s SOI argues that the student’s allegations sufficiently represent a violation of his First and Fourteenth Amendment rights, indicating that the college’s speech policies were not content neutral, established an impermissible “heckler’s veto,” and were not narrowly tailored to achieve a compelling governmental interest.  The AG added: “A national recommitment to free speech on campus and to ensuring First Amendment rights is long overdue.  Which is why, starting today, the Department of Justice will do its part in this struggle.  We will enforce federal law, defend free speech, and protect students’ free expression.”

The reaction to Sessions’ remarks has been mixed.  The Foundation for Individual Rights in Education applauded the remarks, while PEN America criticized the AG for failing to mention recent incidents of “hate speech and hate crimes” on campus in his address.

Moving forward, it is unclear whether the remarks signal a major policy reorganization at the DOJ or what a “national recommitment” could mean for current campus controversies, such as faculty speech and academic freedom issues, as well as uninvited, outside speakers like Richard Spencer and others requesting space on campus. (See our blog post on this issue here.)  It is clear, however, that the DOJ has taken an interest in campus speech issues and colleges might be well-served to review their student expression policies.

Interim Title IX Guidance Released: Making Sense of New Interpretations and Ongoing Responsibilities

With Jonathan Helwink

On Friday, the Department of Education released a “Q&A on Campus Sexual Misconduct” along with a letter from Acting Assistant Secretary of the Office for Civil Rights, Candice Jackson withdrawing the Department’s 2011 “Dear Colleague Letter on Sexual Violence” and the 2014 “Q&A on Title IX and Sexual Violence.”  This new Q&A is intended to set forth the Department’s “current expectations of schools” in the “interim” while formal rules are crafted after a notice and comment period.  The Department indicated that it would rely on this interim Q&A along with the Department’s 2001 “Revised Sexual Harassment Guidance” and 2006 “Dear Colleague Letter on Sexual Harassment,” affirming the 2001 guidance.   The interim Q&A provides a helpful, consolidated description of the requirements of the Clery Act, the Violence against Women Act, and Title IX in outlining the Department’s expectations for schools.  The following are the key changes, along with explanations, that HMBR attorneys have noticed in the interim Q&A.

  • Standard of Proof – Colleges are no longer required by federal Title IX policy to use the preponderance standard of evidence and may use either the preponderance or the higher “clear and convincing” evidence standard. The Department – in a footnote that is bound to be highly debated in the months to come – Footnote 19 – indicated that schools should use a standard in sexual misconduct cases that is consistent with the standard the school applies in other student misconduct cases.  Relying on a case involving Brandeis University, the Department stated that using “special procedures” in sexual misconduct cases “suggests a discriminatory purpose and should be avoided.”  In our view, schools that use different standards for sexual misconduct and for other types of misconduct may still be able to use those standards if they have legitimate, non-discriminatory justifications for the use of different standards (for example, that the applicable state law requires the use of the preponderance standard in sexual misconduct cases).  And, importantly, federal courts in other cases have specifically ruled that having procedures that may favor victims does not equate to gender discrimination.
  • Due Process – The interim Q&A emphasizes that any rights or opportunities made available to one party should be made available to the other party, including having an attorney present and participating (consistent with the Clery Act) and the right to cross-examine parties and witnesses. Respondents must be provided adequate written notice and the opportunity for meaningful participation in any proceedings; these are fundamental due process rights that many federal courts have already insisted be afforded to respondents.  The interim Q&A continues OCR’s approval of the use of a single investigator model, but now considers “gag orders” inequitable.  Findings of fact may be made with or without a hearing.  Training materials or investigative techniques must be objective and impartial.
  • Time Frames – The interim Q&A removes the sixty-day timeline from previous guidance and replaces it with a requirement to conduct “fair, impartial investigation[s] in a timely manner.”
  • Off Campus – Citing to the U.S. Supreme Court’s decision in Davis v. Monroe City Board of Education, the guidance states that a “university does not have a duty under Title IX to address an incident of alleged harassment where the incident occurs off-campus and does not involve a program or activity” of the college.
  • Interim Measures – The document emphasizes that services should be available to both the complainant and the respondent. In rescinding the 2014 Q&A, the guidance removes the previous “minimize the burden on the complainant” language and highlights that schools should make “every effort to avoid depriving any student of her or his education.”
  • Informal Resolution and Mediation – Colleges may now facilitate informal resolution of Title IX complaints, including mediation, if all parties agree to participate in the complaint’s voluntary resolution, thus opening the way for the use of “restorative justice” techniques for sexual violence cases.
  • Right of Appeal – Under the interim guidance, a school may choose to allow appeals regarding responsibility or sanctions to both parties or to the respondent only.
  • Free Speech – The interim Q&A directs schools to formulate, interpret and apply their Title IX rules consistent with the rights of students and faculty, including court precedents interpreting the concept of free speech.
  • And More? – There are still a lot of questions about the interim guidance, including: Has the Department softened the previously-understood requirement that schools must conduct an investigation in all cases of reported sexual violence? The interim guidance states that where a school knows, or reasonably should know, of an incident of sexual misconduct, “the school must take steps to understand what occurred and to respond appropriately.”  Compare this language to the previous language requiring schools “to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.”  In addition, the accompanying letter from OCR’s Assistant Secretary criticized that the former guidance “forbade schools from relying on investigations of criminal conduct by law-enforcement authorities to resolve Title IX complaints.”  It is unclear whether the Department is suggesting that schools may defer to criminal proceedings without conducting their own Title IX investigations in sexual violence cases.

Reactions to the temporary guidance have been swift.  Victim advocates view the guidance as sending the wrong message to survivors, making them less comfortable reporting sexual violence incidents.  Advocates for accused students cheered the directives, applauding the Department for taking their concerns over due process violations seriously.

Despite the reactions, there is still much to be worked out and decided.  While potentially foreshadowing what will eventually become permanent, the Q&A is only interim guidance with a notice and comment period still to come.  At HMBR, we will continue to keep you updated on developments and, as always, we are ready to advise you on how this interim guidance affects your campus policies and procedures.

New Guidance Looks Likely to Adopt ‘Clear and Convincing’ Standard

The Wall Street Journal reported on Wednesday this week that the Department of Education will issue interim guidance on handling sexual assault investigations on college campuses in the next week or two.  Despite not reporting all of what the interim guidance will include, the Journal did report on one of the expected most-eagerly anticipated and controversial changes.

According to the Journal, the interim guidance will permit schools to immediately adopt the higher “clear and convincing” evidentiary standard of proof in Title IX proceedings on college campuses.  The inclusion of the new standard would replace the lower “preponderance of evidence” standard currently required by the Department.  Generally, the clear and convincing evidentiary standard means that a party must prove that its accusation is substantially more likely than not to be true.  The preponderance standard is understood to mean that a plaintiff’s accusation is more likely than not to be true, in other words, that 51% of the evidence favors the plaintiff’s outcome.  Importantly, the article does not suggest that schools will be required to adopt this higher standard, which would leave schools in states that have state laws requiring the use of the preponderance standard free to continue using that standard.

As of publishing this post, the Department of Education has not confirmed or denied the Journal report.  It is also unclear how, exactly, this evidentiary change could affect campus policies and procedures across the country.  However, HMBR is closely monitoring these develops and will bring you the best and most experienced reaction and guidance when the revised Department guidance is issued.

Six Takeaways from Secretary DeVos’ Title IX Speech

 

With Jonathan Helwink

On September 7th, Secretary of Education Betsy DeVos delivered an address regarding the Department’s revised approach to Title IX enforcement.  Announcing the goal of “getting it right” on Title IX, DeVos indicated a new phase of Title IX enforcement.  Here are six key takeaways from her remarks:

1.      Continued Commitment to Enforcing Title IX.  The Secretary stated that the Department is committed to continuing to enforce the obligations of colleges and universities under Title IX to prevent and address sexual misconduct on their campuses.   But she indicated that the Department would take a more collaborative and less punitive approach with schools in enforcing the law.

2.      No Immediate Change in Title IX Policy.  The Secretary did not announce any immediate change – rescission or modification – to existing Title IX (or VAWA) guidance.  So the Obama Administration’s Title IX policy guidance, including the requirement to use the preponderance of the evidence standard for evaluating sexual misconduct allegations, remains in effect.

3.      Opportunity for Public Input.  Stating that “the era of ‘rule by letter’ is over,” DeVos announced a “notice and comment” period to replace current Title IX guidance. No details were given as to the timing or format of this process.  In general, notice and comment periods range from thirty to sixty days, but agencies have the discretion to extend the period to 6 months or more for “complex rulemaking”, which may be appropriate for Title IX.

4.      Heighted Emphasis on Due Process.  As expected, the Secretary expressed grave concern with respect to the procedural protections afforded to accused students in the disciplinary process.  She gave a number of specific signals as to the Department’s views on the procedural protections that should be afforded in the process, including:

– Not requiring the use of the “lowest standard of evidence”

– Allowing attorneys to play a greater, more active role in the process

– Starting with a presumption of innocence (note use of criminal law terminology)

– No system “bias” toward finding a student responsible for sexual misconduct

– Adequate notice of specific allegations

– Requiring evidence to be shown to all parties (already required by VAWA)

– Allowing witnesses to be cross-examined

– Providing a right to appeal in all instances

– Not imposing “gag orders” prohibiting parties from talking to others about the process

Many of these due process protections echo themes heard from the Foundational for Individual Rights in Education in the report it issued earlier this week, and heard previously in recommendations (cited by the Secretary in her speech) of the ABA, the American College of Trial Attorneys, and  professors from the law schools at Harvard and Pennsylvania.

5.      Heightened Protection for Free Speech.  Secretary DeVos took aim at university “harassment codes” and what she called “ambiguous and incredibly broad definitions of assault and harassment” that, in her view, punish students and faculty “simply for speaking their minds or teaching their classes.”  She suggested that there needs to be more precision in the definition of sexual misconduct and harassment, so that schools do not “trample speech rights.”

6.      Outsourcing Title IX Adjudicatory Responsibilities?  While referring to the importance of public feedback on the replacement guidance, DeVos signaled interest in exploring “all alternatives.” Interestingly, the Secretary suggested that one alternative approach would be “to allow educators focus on what they do best: educate” and give the adjudication of sexual misconduct to professionals outside of the university setting. The Secretary opined that college and university administrators do not have the necessary legal expertise and training to adjudicate sexual misconduct cases and given this “competency gap,” they should instead draw upon others in this area.  She stated, “Get out of the way and let the professionals do their jobs. Students, families, and school administrators are generally not lawyers and they’re not judges. We shouldn’t force them to be so for justice to be served.”

The bottom line is that institutions need to stay tuned for further developments in this area. HMBR will continue to monitor developments as they happen and will inform you when new information comes available.

For advice on steps that schools can take now to be ready for changes in federal policy and to position themselves to avoid Title IX litigation, see the blog posted earlier this week on “Smart Steps to Take Now to Avoid Title IX Litigation.”