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Department of Education Proposes New Title IX Regulations Regarding Proper Response To Complaints of Sexual Misconduct

Posted on: December 21st, 2018

By: Bill Buechner

The Department of Education (“DOE”) recently issued proposed regulations regarding how elementary and secondary schools and institutions of higher education should respond to complaints of sexual harassment and sexual assault. As a whole, the proposed regulations seek to strengthen the due process protections for students accused of sexual harassment and/or sexual assault, while at the same time proposing measures that the DOE believes would encourage students who believe they are victims of sexual harassment and/or sexual assault to report the conduct and seek measures that would preserve or restore their access to an educational program or activity.

The proposed regulations follow the DOE’s decision in 2017 to rescind the 2011 Dear Colleague Letter and the 2014 Questions and Answers on Title IX and Sexual Violence guidance previously issued by the DOE under the Obama Administration. At that time, the DOE also issued temporary guidance set forth in its Questions and Answers on Campus Sexual Misconduct, while also stating that it intended to promulgate regulations addressing these issues.

The proposed regulations, as well as an executive summary and an in-depth explanation of the rationale for the proposed regulations have been published in the Federal Register at 83 FR 61462 and may be reviewed here. Briefly discussed below are the most significant proposed provisions:

  1. Narrowed Definition of Sexual Harassment

The proposed regulations would define sexual harassment as including (a) quid quo pro harassment (promising education benefits in exchange for an individual’s participation in unwelcome sexual conduct); (b) sexual assault, as defined by existing Clery Act regulations; and (c) “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” In contrast, the 2011 Dear Colleague Letter defined sexual harassment as “unwelcome conduct of a sexual nature.” The DOE explains that its proposed definition of sexual harassment is consistent with Supreme Court precedent assessing Title IX liability in private litigation and would provide a uniform standard. The DOE also emphasizes that Title IX is only violated when sex discrimination has the effect of denying access to an educational program or activity.

  1. Deliberate Indifference Standard

The proposed regulations state that a school would only be subject to Title IX liability if it responds to known sexual harassment in a way that is deliberately indifferent. The proposed regulations define deliberate indifference as “clearly unreasonable in light of the known circumstances.” The DOE explains that this standard of liability tracks the standard set forth in Supreme Court precedent addressing the liability of parties in private litigation. Prior guidance and the DOE’s Office of Civil Rights prior enforcement practices took the position that a school’s response should be judgment under a reasonableness standard.

  1. Actual Notice Requirement

The proposed regulations also would provide that a recipient must have actual knowledge of conduct that constitutes sexual harassment in order to be subject to Title IX liability, as opposed to the imputation of knowledge through constructive knowledge or respondeat superior. Actual notice is defined as knowledge by an official who has authority to institute corrective measures on behalf of the recipient. The proposed regulations also define actual knowledge as notice of sexual harassment to a school’s Title IX Coordinator or (at the elementary and secondary school level) a teacher.

  1. Two-Track Complaint Procedures

The proposed regulations would create a two-track complaint procedure, out of recognition that, for a variety of reasons, a complainant may not want to a file a formal complaint.  A complainant may notify the school (verbally or in writing) of conduct that could constitute sexual harassment without filing a grievance or pursuing charges against the alleged perpetrator.  If the complainant chooses this option, the school would not be obligated to investigate the allegations, but would be obligated to provide supportive measures, including a non-exhaustive list of measures such as counseling, extension of deadlines for completing course work, campus escort services, mutual restrictions on contact between the parties and changes in work or housing locations.   The supportive measures are to be non-disciplinary and non-punitive and reasonably available without cost or charge, and would be intended to restore or preserve the complainant’s access to his or her education. Colleges that provide these supportive measures and respect a complainant’s wishes not to file a formal complaint would be entitled to a safe harbor against a finding of deliberate indifference.

The proposed regulations recognize that, at the elementary and secondary school level, it may be necessary in some instances for a Title IX Coordinator to file a formal complaint even if the complainant does not to file one.   At the college level, a Title IX Coordinator would be obligated to file a formal complaint if the school has actual knowledge regarding reports by multiple complainants of conduct by the same respondent that could constitute sexual harassment.

The complainant may also submit a formal complaint in writing alleging sexual harassment and requesting that the school activate its grievance process.   The formal complaint must be signed by the complainant or the Title IX Coordinator.   Schools that follow the proposed regulations’ procedures for responding to a formal complaint would be entitled to a safe harbor against a finding of deliberate indifference.

  1. Notice of Allegations

The proposed regulations provide that, if a formal complaint is filed, the school must provide written notice to the parties who are known.   The written notice must include, among other things, identities of the parties involved in the incident, the conduct alleged, the date and location of the alleged incident and a statement that the respondent is presumed not responsible for the alleged conduct and a determination regarding responsibility will be made at the conclusion of the grievance process.

  1. Other Due Process Protections

The proposed regulations would give the parties the right to inspect any documents or evidence collected by the school during the investigation.   Parties would also have the right to review the initial draft of the investigation report prepared by the investigator and provide a written response for the investigator’s consideration before completion of the investigation report.   The proposed regulations would also give each party equal opportunity to have an advisor of his or her choice present at various stages of the grievance process, subject to restrictions that would be equally applicable to each party.   In addition, the proposed regulations would require that the investigator, coordinator and decision-maker not have a conflict of interest or bias against the complainant or respondent.   The proposed regulations would require live hearings for colleges and would allow (but not require) live hearings for elementary and secondary schools.

  1. Right of Cross-Examination

One of the more controversial issues is whether a respondent should have the right to cross-examine the complainant.  The proposed regulations answer this question by stating that due process requires a right to cross-examination of both parties.   However, the proposed regulations provide that, at the college level, the cross-examination must be conducted by the party’s advisor rather than the party.  Also, the proposed regulations would allow either party to request that the parties be placed in separate rooms during cross-examination while observing the questioning live via technological means.   Moreover, the proposed regulations mirror rape shield laws in prohibiting questions regarding the complainant’s sexual history, except the complainant’s history with the respondent to show consent, or to show that someone other than the respondent engaged in the alleged conduct.

At the elementary and secondary school level, the proposed regulations recognize that cross-examination of the parties during a live hearing may not be appropriate.  If school officials determine that a live hearing is not appropriate, the proposed regulations provide that each party must be allowed to pose written cross-examination questions to the opposing party or to witnesses through the decision-maker, including questions challenging credibility and follow-up questions.

  1. 8. Standard of Proof

Another controversial issue is what standard of proof is required to establish that a complainant was the victim of sexual harassment or sexual assault.  The 2011 Dear Colleague Letter stated that a preponderance of the evidence standard (meaning more likely than not) was appropriate because this is the standard in most civil cases.   The proposed regulations state that schools may decide whether to apply a preponderance of evidence standard or a clear and convincing evidence standard (meaning it is highly probable or reasonably certain that the alleged conduct occurred).   However, the proposed regulations would allow schools to apply the preponderance of evidence standard only if that standard is applied to (1) other student conduct code violations that carry the same disciplinary sanction; and (2) respondents who are employees, including faculty.

  1. Written Determination

The proposed regulations would require that the decision-maker issue a written determination that includes findings of fact and rationale for the conclusion as to each allegation.  The proposed regulations would require an objective evaluation of all the relevant evidence and would prohibit credibility determinations based on a person’s status as a complainant, respondent or witness.  The proposed regulations would require the written determination to state any sanctions imposed against the respondent and any remedies provided to the complainant to restore or preserve access to the school’s education program or activity.   Most importantly, the proposed regulations state that a school will not be found to be deliberately indifferent simply because the DOE would have reached a different conclusion based on its own weighing of the evidence.  The proposed regulations provide that the decision-maker must be a different person than the Title IX Coordinator and the investigator.

  1. Appeal

The proposed regulations would allow (but not require) schools to offer an appeal for an aggrieved party.  However, if an appeal is made available, it must be made available to both parties.   The proposed regulations provide that the decision-maker on appeal must be different that the Title IX Coordinator, the investigator or the initial decision-maker.

  1. Informal Resolution

The 2011 Dear Colleague Letter prohibited alternate dispute resolution in instances of alleged sexual assault.   The proposed regulations would permit informal resolution, such as mediation, if the parties provide their written consent.  The proposed regulations would require notice as to the requirements of the informal resolution process, including the circumstances under which it would preclude the parties from resuming a formal complaint arising from the same allegations, and other consequences resulting from participation in the informal resolution process.

As stated above, these are only proposed regulations.  The public will have until January 28, 2019 to submit comments.  After receiving and reviewing these comments, the DOE will promulgate final regulations.

For additional information, please do not hesitate to contact Bill Buechner at [email protected].

Supreme Court Revisits Interplay Between First and Fourth Amendments

Posted on: November 29th, 2018

By: Wes Jackson

Imagine you commit a minor crime and an officer approaches you. The interaction goes south when you call the officer a “pig” and remind him that your tax dollars pay his salary. He then arrests you. Were your constitutional rights violated?

That’s the question the Supreme Court considered Monday, November 26, 2018 when it heard oral arguments in Nieves v. Bartlett. In Nieves, two Alaska State Troopers were patrolling a multi-day ski and snowmobile festival when they decided to investigate some underage drinking. Bartlett, who was intoxicated, intervened and confronted the troopers. The officers arrested Bartlett and put him in a “drunk tank.” He was later released and charged with disorderly conduct and resisting arrest. The state declined to prosecute the charges due to budgetary reasons. Bartlett sued, alleging his arrest was retaliatory because he refused to assist the officers in their investigation of the minors drinking alcohol.

Retaliatory arrest claims, like the one in Nieves, occur at the intersection of the First and Fourth Amendments: the presence of probable cause bars a Fourth Amendment claim for false arrest, but the circuits are split as to whether probable cause will also bar a First Amendment claim for retaliatory arrest arising from the same incident. Those circuits applying the probable cause bar to retaliatory arrest claims employ a bright-line objective standard that protects the officer from protracted litigation or trial where it is clear (or even arguable) that a reasonable officer could believe the arrestee had committed a crime. Rejecting the probable cause bar to retaliatory arrest claims could subject officers to months or years of litigation probing their subjective intent behind making an arrest—i.e., did the officer arrest the plaintiff for his crime or his speech?

At the Nieves oral argument, the justices sought to find a balance between protecting First Amendment rights while also giving law enforcement officers enough cover to act decisively and make arrests in fast-paced situations. On one hand, Justice Kagan noted the concern that officers might use minor crimes as a pretext to arrest for speech they disagree with, stating “there are so many laws that people can break that police officers generally look the other way, but, you know, you’re saying something that the officer doesn’t much like, so he doesn’t look the other way.” On the other hand, Justice Breyer and other justices noted the obvious concern with the chilling effect that would accompany the possibility of officers being haled into court every time they arrest someone who hurls an insult—officers could be to hesitant to make otherwise appropriate arrests.

One possible solution the justices entertained was to keep the probable cause bar for retaliatory arrests, but to limit its application to situations where there was probable cause for the charge on which the officer made the arrest or other charges upon which the arrestee was soon indicted. Such a solution would keep the probable cause bar for retaliatory arrests but prevent officers from concocting post hoc justifications for the arrest months or years later in a civil rights lawsuit.

The Court should issue an opinion in Nieves v. Bartlett in the coming months. If you have any questions about this case or retaliatory arrest claims more generally, please contact Wes Jackson at [email protected].

An Examination of the Interpretation of Free Recreation

Posted on: October 15th, 2018

By: Kevin Stone

In Georgia, if property is open free of charge for recreational purposes, the landowner is normally immune from liability for injuries occurring on the property.  A court can decide this as a matter of law without sending the case to a jury.  When sales occur on such property, however, a court may require a jury to decide whether the property’s use is “purely recreational,” rather than commercial.  This creation of a jury issue exists even if the sales are by private vendors and the landowner receives no payment.

For example, the Court of Appeals recently found that a free concert—at which concert-goers had the option of buying concessions from outside vendors (that did not pay the property owner), and where the event may have created a marketing benefit for the landowner—was considered to have both recreational and commercial purposes.  The result being that a jury, not a judge, had to resolve the issue of the property owner’s primary purpose for the property.  This interpretation of the law allows a commercial classification even though property is open for free for recreation.

This seems at odds with the purpose of the Recreational Property Act: “to encourage property owners to make their property available to the public for recreational purposes.”  In a concurrence, Chief Judge Dillard made the keen observation that a fair interpretation of the Act strongly suggests that the only relevant economic consideration is whether an admission fee is charged.  In such a case, the immunity would apply.

The Georgia Supreme Court has decided to weigh in and granted certiorari on these issues.  The Court’s examination will provide clarification for landowners who allow free access for recreation but also allow the public the option of making purchases.  We will continue to follow this case and keep you updated with the Court’s explanation.

If you have any questions or would like more information, please contact Kevin Stone at [email protected].

Qualified Immunity Applied to Employment

Posted on: October 3rd, 2018

By: Owen Rooney

In Kramer v. Cullinan 878 F.3d 1156 (9th Cir., 2018) the Ninth Circuit reversed the denial of a Motion for Summary Judgment, holding that that the employer’s public statement was not “stigmatizing” and defendant was entitled to qualified immunity.

Plaintiff served in dual roles as Executive Director of Public Radio and a related Foundation. He reported to Southern Oregon University President Cullinan who became concerned that plaintiff was engaged in costly projects and a potential conflict of interest existed in plaintiff serving in both capacities. The University system conducted an asset liability investigation which concluded that the projects could cause a financial strain on the university and that the projects were not aligned with the university’s interests. Plaintiff resisted the university’s efforts to remove him from both roles by trying to have the Board pass resolutions to keep him in both positions. The university president sought advice of counsel who authored a letter urging the Foundation not to adopt plaintiff’s resolutions and also raising the potential liability of plaintiff and the Directors. The letter was given to the Board members prior to voting on plaintiff’s resolutions, a meeting at which the press was present.  At the meeting, President Cullinan spoke, again raising the issue of possible legal liability, but expressing hope for an amicable resolution.

Thereafter, plaintiff’s annual appointment was not renewed. Following the grievance procedure, plaintiff filed suit, alleging, among other things, a civil rights violations for deprivation of his liberty without due process. The District Court granted summary judgment as to all claims except the civil rights cause of action. In reversing, the Ninth Circuit held that the letter did not actually impute bad faith, willful or wasteful conduct. Rather, the letter in question stated that “if” plaintiff had engaged in bad faith, willful or wasteful conduct, he would not be entitled to indemnity.

Secondly, the Court recognized that an employer’s statement about an employee may implicate a liberty interest. Thus, an employee charged with fraud, dishonesty or immoral conduct is entitled to a name-clearing hearing under the 14th Amendment. The Court also held that prior legal precedent was not sufficient to put the university president on notice that her conduct violated plaintiff’s constitutional rights because the prior cases did not involve the conditional language at issue here.

The take away is that qualified immunity is still alive in the Ninth Circuit and is applicable in an employment context.

If you have any questions or would like more information please contact Owen Rooney at [email protected].

Are We Witnessing the End of Qualified Immunity?

Posted on: September 19th, 2018

By: Sun Choy

For many decades, qualified immunity has served as a powerful defense to end civil cases against public officials, including law enforcement officers for the alleged use of excessive force.  Given the many high-profile deaths involving the use of force by officers, progressives have again called for the end of qualified immunity.  Even some conservatives are now calling for an end to qualified immunity.  In a recent National Review article, the author lays out a conservative rationale to end qualified immunity, which is primarily based on the “plain meaning” of the statutory language of 42 U.S.C. § 1983.  With progressives and conservatives joining forces, is it only a matter of time before the Supreme Court ends qualified immunity?

If you have any questions or would like more information, please contact Sun Choy at [email protected].