More Litigation Is Pressuring How Schools Are Managing Title IX Suits

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A student, accused of violating the school's sexual harassment and sexual violence policy, sues a Colorado university. The lawsuit accuses the university of discriminating against the student based on his sex by failing to follow its investigative procedures and by ruling on the reported violation in an arbitrary and inconsistent manner.

The plaintiff claims he only learned of the sexual harassment charge when the school released the final report, a report that included only brief overviews of witnesses and allegedly false claims about the accused's actions. In addition, the school did not allow him to appeal the decision, question witnesses, or submit new evidence. The accused, of course, alleges the sexual encounter was consensual.

The plaintiff's attorney is litigating several similar cases against other universities, challenging internal university procedures. Michael Roberts "Threesome on Video Leads to School of Mines Sexual-Conduct Lawsuit," www.westword.com (Sep. 7, 2017).


Commentary and Checklist

Title IX prohibits sex discrimination such as sexual harassment or sexual violence such as rape, sexual assault, sexual battery, and sexual coercion.

When an allegation of sexual misconduct is brought forth by a student against another student, universities have internal procedures for responding. The plaintiff’s lawyer in the above case is suing multiple universities, challenging the way the universities manage these complaints. Because the vast majority of accused students are male, the plaintiff is claiming sex discrimination.

A university has a responsibility to respond promptly and appropriately. Even if a victim does not want to report sexual misconduct, but the university knows or reasonably should know about it, the university must promptly investigate and take steps to resolve the matter, according to the Department of Education.

The Department of Education recently released new information on its position regarding Title IX.

https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

This document, in part, offers the following recommendations for university investigative processes:

  • The investigation should be conducted by a neutral party, who has the sole responsibility of gathering sufficient evidence to reach a determination as to whether sexual misconduct has occurred, and whether it constitutes a hostile environment.
  • Investigators are given unlimited time to investigate. Previous guidance had a 60-day investigation limit.
  • The accused party must be notified of the accusation at the beginning of the investigative process, giving the accused sufficient time to prepare a response.
  • Each party must be given advanced notice of any hearings or interviews in order to prepare if they choose to participate.
  • The new guidance allows schools a choice: to offer an appeals process to either both parties involved or to only the accused in a case. The previous guidance allowed for either party to appeal an outcome.
  • The investigation report should be clearly written, detailing both incriminating and exonerating evidence.
  • To determine whether the facts support a finding for violation of policy, the school can choose whether to apply a preponderance of the evidence standard or a clear and convincing evidence standard, whichever is consistent with the standard used for other instances of student misconduct.
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