title ix case law review presented by w. scott lewis, j.d. saundra k. schuster, j.d. brett a....

TITLE IX CASE LAW REVIEW

Presented by W. Scott Lewis, J.D.

Saundra K. Schuster, J.D. Brett A. Sokolow, J.D.

. www.ncherm.orgwww.atixa.org

MEET YOUR PRESENTERSBrett A. Sokolow, J.D. is a higher education attorney who specializes in high-risk campus health and safety issues. He is recognized as a national leader on campus sexual violence prevention, response and remediation. He is legal counsel to 35 colleges, and is the founder and managing partner of NCHERM and Executive Director of ATIXA.

© 2012 ATIXA all rights reserved 2

W. Scott Lewis, J.D. is a partner with NCHERM.He has over 20 years of experience as a student affairs administrator, faculty member, and consultant in higher education. He is a frequent keynote and plenary speaker.


Saundra K. “Saunie” Schuster, J.D. is a Partner with NCHERM. She was previously General Counsel for Sinclair College and Senior Assistant Attorney General for the State of Ohio. Prior to practicing law she was Associate Dean of Students at Ohio State University. She is an author and consultant focusing on higher education legal issues.


Jackson v. Birmingham Board of Education544 U.S. 167 (2005)

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© 2012 NCHERM all rights reserved

Jackson v. Birmingham

A deeply divided U.S. Supreme Court decidedthis landmark case in 2005

This case involved a claim of retaliation for filingcomplaints of sex discrimination under Title IX

The Court held that individuals who bring complaints about sex discrimination underTitle IX can seek damages for retaliation forwhistle-blowing

Roderick Jackson, a high school teacher and coach, complained to school officials about the school’s inequitable treatment of the girls’ basketball team

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He received negative evaluations for the next year and was removed from his coaching position

He sued the school charging that they violated Title IX by retaliating against him for protesting the discrimination against the girls’ team

The U.S. Court of Appeals for the 11th Circuit backed up the District Court’s decision that Title IX does not provide individuals the right to sue for retaliation

Jackson v. Birmingham7


The Supreme Court overturned the lower courts, stating: Private parties can seek damages for intentional

sex discrimination under Title IX Retaliation against a person who complains

about sex discrimination is in itself a form of “intentional discrimination,” even if the plaintiff is not an “actual” victim of gender-based discrimination.

It is discrimination based on gender because it is “an intentional response to the nature of the complaint: an allegation of sex discrimination”

Jackson v. Birmingham8


Lisa Simpson, Anne Gilmore v. University of Colorado Boulder, et al.

U.S. Ct. of Appeals, 10th Circuit, September 6, 2007

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Students Lisa Simpson and Anne Gilmore alleged they were sexually assaulted at a party attended by University football players and recruits.

They stated that a football player and another student (female), who tutored for the athletic department, devised a plan for a football recruiting event to include sex with intoxicated female students.

Simpson and Gilmore were sexually assaulted after a number of football recruits showed up at Simpson’s apartment during a party.

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Lisa Simpson; Anne Gilmore v. University of Colorado Boulder, et al.

Plaintiffs alleged the CU athletic department was aware of (and supported) the incidents of alcohol consumption and sexual assault by football players and recruits, and that the department created a known risk of sexual harassment, assault and discrimination against female students and other women as a result of their deliberate indifference.

The plaintiffs filed their lawsuit under Title IX claims.

The District Ct. found for the university and dismissed the lawsuit.

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The District Court determined that, considered as a whole, all the information presented in support of the Title IX charges did not constitute adequate notice under Title IX.

Absent sufficient evidence that the University had notice of the relevant risks, and the University acted with deliberate indifference to those risks, the court could not conclude that the University’s deliberate indifference caused the plaintiffs to suffer the severe sexual harassment they suffered.

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Simpson and Gilmore appealed. Upon appeal, the summary judgment granted to the university by the Court was reversed.

The reversal was based on information obtained from studies of the University’s lack of supervision of football recruits and their behavior while on campus.

The University settled the case before rehearing for a total of $2.85 million. Of that amount Simpson received $2.5 million and Gilmore $350,000.

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Significance of the Case: Under the Title IX “deliberate indifference” standard an educational institution that receives federal funding is liable in damages only when its deliberate indifference effectively caused the discrimination.

An institution will be deemed deliberately indifferent to acts of harassment only when the institution’s response to the harassment is “clearly unreasonable in light of the known circumstances”.

As in this case when the institution knows of acts of harassment, is aware of the risk and fails to exercise means of control available to it to control or eliminate the risk.



In rejecting the summary judgment, the Court went to great lengths to discuss the nature of recruiting as a “school program” and thus the need for oversight by athletic department employees.

This case tells us that Title IX claims are alive and well in these circumstances, and that athletic departments must provide oversight to recruiting activities that foster hostile environments.

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Tiffany Williams v. Board of Regents of University of Georgia

U.S. Ct. of Appeals, 11th Circuit, February 9, 2007

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Tiffany Williams, was invited to the dorm room of a male student (Tony Cole) university basketball player with whom she had an intimate relationship. They engaged in consensual sex.

She was unaware, however, another basketball player was hiding in the closet. The first male went to the bathroom and closed the door, the second male emerged, naked, from the closet and sexually assaulted Ms. Williams.

While she was being sexually assaulted the first male called other teammates and one came over and also sexually assaulted her.

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Williams reported the rape to the university, and contacted the police. She also filed criminal charges against all three males.

They were charged under the university’s Code of Conduct and were suspended from the team.

The campus disciplinary panel did not convene to render a decision for a year, and then decided not to sanction the three men, two of whom had already left the school.

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The prosecutor dismissed the criminal charges against two of the men and acquitted the third.

Ms. Williams filed a $25 million lawsuit against the university, alleging that the university violated Title IX, stating that it recruited the player (Cole), even though it knew he had disciplinary and criminal problems at other colleges, specifically involving harassment of women.

The district court dismissed Ms. Williams’ claims, but the Court of Appeals upheld her claims.

The Ct. found that the university had sufficient notice and demonstrated deliberate indifference to the safety of Ms. Williams. The University settled the case for a six figure undisclosed amount.

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In allowing the Title IX claim to go forward, the Ct. of Appeals stated that the university’s knowledge of Tony Cole’s past record was a salient factor in its analysis of the facts.

Critical elements for the university to consider: Knowledge of recruiting practices (official and

unofficial), special admits, recruit’s backgrounds, and available resources to assist in training and prevention of incidents

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Melissa Jennings and Debbie Keller vs. The University of North Carolina at Chapel Hill, et al

482 F.3d 686 (2007)

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Jennings v. University of N. Carolina

The Facts: Three female soccer players were sexually

harassed by their head coach with repeated sexual comments and inquiries into players’ sexual activities

Jennings reported the events to university legal counsel and was told to “work it out” with the coach on her own

She and her family brought their complaint to the Chancellor’s Assistant and the AD

She was subsequently dismissed from the team


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The district court: Dismissed Jennings Title IX and § 1983 claims Two other plaintiffs settled their cases: one for

undisclosed 6 figures and the other for $70,000, Appealed to Circuit Court of Appeals (3 judge

panel) Upheld the dismissal

Appealed to full court (En Banc) Overturned the Ct. of Appeals panel.

University settled case before damages ruling by the court: Jennings received $375K+fees, university agreed to conduct an annual review of policy and annual training for the coaches© 2012 NCHERM all rights reserved

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This case examines the power relationship between coach and player

It determined the speech was not protected

It determined that the coach’s “locker room banter” was severe and pervasive

The university demonstrated“deliberate indifference” based on the way it responded


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U.S. Supreme Court, January 21, 2009

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Fitzgerald v. Barnstable School Committee


This case represents a legal challenge brought against a school district by parents of a kindergarten child who had been subjected to student-on-student sexual harassment

The Facts: A kindergarten female was harassed by a fifth grade

boy on the school bus. The parents reported to the school

The reports were investigated by the Principal and reported to the superintendent with no finding of harassment

The parents challenged that the school did not respond adequately, under Title IX requirements, to their daughter’s allegations of sexual harassment by an older student.

The parents also brought a §1983 claim against the school superintendent and the school committee

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The district court upheld the motion for summary judgment in favor of the school, and this decision was upheld by the 1st Circuit Court of Appeals.

The Supreme Court ruled on the question of whether Title IX provides the exclusive remedy for addressing gender discrimination in the school, or if a §1983 action could be brought as a means of enforcing federal civil rights.

The Supreme Court held that Title IX is not the exclusive mechanism for addressing gender discrimination, nor a substitute for a §1983 action

The Court stated that Title IX provides for both an administrative remedy (OCR) and civil damages actions against an institution, but not school officials, teachers or other individuals.

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However, §1983: Provides the means to enforce the rights of an

aggrieved person against school officials, teachers or other individuals in their personal capacity

It creates the path to hold individuals personally liable, provides for award of damages, injunctive relief and attorney fees.

It follows that the courts apply school-focused Title IX case law similarly to colleges and universities.

Doe v. University of the Pacific

Facts & Holding:

In May of 2008, Jane Doe alleged 3 members of the men’s basketball team sexually assaulted her. On May 12 plaintiff’s friends made the institution aware of the allegations. The coach immediately called the plaintiff – who was home on break – to inquire about her well-being.

© 2012 ATIXA all rights reserved

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Facts & Holding:

The next day, the coach immediately notified the athletic director who then notified the vice president for student affairs, the director of public safety and the director student conduct. On May 14, the university issued a campus wide Clery warning and reported the incident to the Stockton police.


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Facts & Holding: The university re-contacted the victim, informed her and her parents of her options and support mechanisms at the institution. They further informed her that, due to the seriousness of the allegations, they intended to convene a judicial review board. Plaintiff opted not to press criminal charges but indicated she felt “reassured” by the university’s pursuit of the campus conduct process. On June 16, the hearing was held. Plaintiff was permitted to provide her testimony from a building across campus, but she did not answer any questions asked by the respondents.


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Facts & Holding:

The conclusion of the hearing was that all 3 students had committed certain sexual related violations. 2 students were suspended for 1 and 2 semesters, respectively and the 3rd student was dismissed. All 3 appealed the sanctions, and the plaintiff was allowed to submit a statement as well. The appeal was denied.


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Facts & Holding: Both basketball coaches determined that the men's and women's teams were not to interact socially for a cooling off period. This was designed to assist the plaintiff as well as prevent any further potential conflicts between the teams.


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Facts & Holding: Plaintiff filed a Title IX action filed against the University claiming that it:1. Did not prevent the assault (by failing to

investigate a prior assault properly);2. Demonstrated "deliberate indifference" to sexual

harassment in failing to respond appropriately to her complaint, and

3. Retaliated against her by instituting a policy limiting unsupervised social interaction between the men's and women's basketball teams.

The court found for the university and granted its motion for summary judgment. The 9th Circuit upheld the district court in favor of the university.© 2012 ATIXA all rights reserved

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Significance of the Case: This case is extremely significant for student conduct professionals and high-level student affairs administrators. It appears that the institution followed its policies and allowed a panel that was trained to make a determination that ultimately resulted in the separation – albeit not as long as the plaintiff wanted – of all 3 parties. © 2012 ATIXA all rights reserved

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Doe v. University of the Pacific,

Significance of the Case: Emphasizes the importance of engaging in a prompt and thorough investigation while at the same time balancing the needs of all the students and treating the accused in an appropriate and caring manner. In short, it appears that the institution did everything according to its policies.That being said, this outcome did not prevent a very public and media driven response that cost the institution time, energy, and money (and arguably reputation).

© 2012 ATIXA allrights reserved

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The university’s motion to recover attorney’s fees was denied.

The university prevailed via summary judgment when no issue of fact existed to prove deliberate indifference

Court stated: “Complainants do not get to determine sanctions” It is “reasonable” that different sanctions can be

reached Discussion regarding standards of proof: Clear and

Convincing vs. Preponderance of the Evidence


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Retaliation: “In her third cause of action, plaintiff contended

the University violated Title IX by instituting the policy precluding unsupervised social interaction between the men's and women's basketball teams.

Plaintiff stated that the university instituted the policy in order to retaliate against her for making her complaint against the respondent students.

The court rejected this claim based on the university’s legitimate nondiscriminatory reason for the action.


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Doe v. University of the South

A male student was dismissed from the University of the South (Sewanee) for violating the institution’s sexual misconduct policy.

The accused student brought claims in federal court against the university under Title IX, contract, and tort.

The student claimed that the accusation against him was unsupported by the evidence, and the university’s negligence in crafting and implementing its conduct process cost him his reputation and career prospects.


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A federal judge threw out the Title IX claim brought by the male student

But a 9 member federal jury sided with the student unanimously, finding the university to be negligent by failing to construct and carry out its process with reasonable care.

The jury said that the institution engaged in the following actions: They allowed a charge of sexual misconduct to proceed

without adequate evidence They gave the accused student little more than 24 hours to

prepare for a hearing The investigator failed to interview key witnesses, (including

the complainant and the accused) refused to disclose exculpatory evidence, and was not adequately trained to conduct the process fairly.© 2012 ATIXA all rights reserved

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The student was awarded $26,000 to compensate for actual damages

It is notable that a negligence standard was applied for the first time to the student conduct process at a private college, as opposed to a contract claim.

The university was found not to have acted reasonably in balancing both student’s rights

It appears that the professional judgment exercised by student conduct professionals will continue to be scrutinized in ways that extend beyond contractual or deliberate indifference analysis.


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Cases on the Horizon

McGrath v. Dominican College of Blauvelt

Hobbs v. Gonzaga University Doe v. Blackburn College Emeldi v. The University of Oregon OCR decisions on Title IX at Princeton,

Harvard, UVa, Yale, etc.


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THANK YOU!

Questions?

[email protected]@atixa.org

[email protected]


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title ix case law review presented by w. scott lewis, j.d. saundra k. schuster, j.d. brett a....

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