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Practice Pointers for Litigating Title IX Cases

By Nerissa N. Rouzer

 

How did We Get Here?

 

Throughout the 1970s, 80s, and 90s, Title IX was most commonly associated with gender equality in athletics. Over the past decade, however, the focus of Title IX and ensuing litigation has been not on athletics, but on how schools handle gender discrimination in the form of sexual harassment. In the 2000s and culminating in 2011, the Department of Education, through its Office for Civil Rights (commonly known as “OCR”) set forth regulations and guidance concerning how federally funded educational institutions should handle complaints of sexual harassment. As a result, schools have been caught in the middle of a careful balancing act, taking into consideration the rights of both reporting students and responding students. The result is a ground swell of litigation on both sides. How colleges and universities handle claims of sexual misconduct continues to be the focus of a larger, national conversation.

 

Know your Standard

 

If you find yourself defending or prosecuting a Title IX action, you must know the standard applicable to your case. The federal regulations and guidelines promulgated by OCR set forth requirements schools must meet in order to comply with Title IX. Familiarity with the guidelines is critical if you are defending an institution against an administrative complaint filed with OCR. OCR currently has over 200 open investigations. It remains to be seen whether a change in the presidential administration will affect the focus or status of such investigations.

 

If you are faced with prosecuting or defending a Title IX action for money damages filed in federal court, the standard is whether the institution was clearly unreasonable or deliberately indifferent in its response to known sexual harassment. This is an incredibly high standard. Proving a school was negligent in its response is simply insufficient.

 

Additionally, there are two theories of liability when a student challenges the outcome of a disciplinary hearing pursuant to Title IX: erroneous outcome and selective enforcement. The erroneous outcome theory applies when a plaintiff claims that a university disciplinary proceeding wrongly found him or her responsible for an offense. In order to prove an erroneous outcome, the plaintiff must assert and prove facts which establish a causal link between the erroneous outcome and gender bias. More frequently, individuals challenging the outcome of a disciplinary hearing present such claims as constitutional due process violations.

 

Note that only educational institutions receiving federal funding are subject to Title IX causes of action in federal court; there is no individual liability.

 

Know the School’s Procedure

 

Each school is entitled to promulgate its own procedures for internally handling, investigating, and adjudicating claims of peer-on-peer sexual harassment. Almost always, the processes and procedures to be used are publically posted on the school’s website. Be familiar with what that process looks like. Who is involved? What are the rights of each party? What process will be followed? What resources are available to each student?

 

Discovery Considerations

 

When propounding or responding to discovery in Title IX cases, student privacy rights become a significant issue. Often, responsive documentation contains information concerning non-party students. Familiarize yourself with the Family Educational Rights and Privacy Act (“FERPA”). It sets forth how an “education record” is defined and what information schools may and may not disclose without the consent of the student.

 

Consider entering a joint protective order setting forth why and how such information is to be disclosed. Schools must comply with valid, court orders mandating disclosure, but non-party students also have the right to object to such disclosure. Subject to the order, schools will give non-party students whose records are at issue notice of the order so that those students (or former students) have an opportunity to respond. In some cases, courts have held a series of separate, short hearings to rule upon non-party student objections.

 

Resources and Best Practices

 

If you are new to Title IX litigation, take advantage of the many resources available to you. These cases are incredibly fact specific—know your facts. Build a working relationship with university counsel before you become adversaries. Review the wealth of recent court opinions from various jurisdictions on this topic. Review the literature posted by the Department of Education, including the federal guidance and its evolution. Understand the process and procedures used at the particular institution involved. Finally, consider attending one of the many CLEs available on this topic.

 

Nerissa Rouzer is a 2009 graduate of the Washington and Lee University School of Law. She is an Assistant Attorney General in the Office of the Attorney General of Virginia. The opinions described herein are solely her own and do not constitute the opinion or advice of the Office of the Attorney General of Virginia.