This is a very general outline of the legal landscape of Title IX. It’s important to remember that this is an extremely nuanced area of law. This overview is like taking a snapshot of one full section of Neyland Stadium and claiming that the entire game was a sellout without photographing the other 100 sections.
What is Title IX?
Title IX is part of the 1972 Education Amendments to federal civil rights laws. Title IX prohibits sex discrimination in any activity which receives federal funding.
In its infancy, Title IX was used to promote gender equality. Specifically, Title IX is the instrument which brought program, scholarship, and facility access and equality to women’s athletics.
Title IX also creates legal liability for Universities (and other entities which receive federal funding) who know about, and ignore, sexual assault, harassment, and discrimination. This prong of Title IX is what Plaintiffs rely upon in the current lawsuit against the University of Tennessee.
When faced with a campus sexual assault (or some forms of off campus sexual assault involving students), the University or a law enforcement agency is obviously obligated to conduct a thorough criminal investigation to determine whether the incident warrants criminal charges or discipline within the University’s discipline program. That, however, is not the only requirement. Universities must also advise potential victims of their rights under Title IX and conduct a Title IX investigation.
What must schools do when faced with a sexual assault or similar case?
The US Department of Education provides the following guidance regarding necessary steps a University must take when it receives a complaint of sexual violence:
· If sexual violence has occurred, a school must take prompt and effective steps to end the sexual violence, prevent its recurrence, and address its effects, whether or not the sexual violence is the subject of a criminal investigation.
· A school must take steps to protect the complainant as necessary, including interim steps taken prior to the final outcome of the investigation.
· A school’s grievance procedure must provide for students to file complaints of sex discrimination, including complaints of sexual violence. These procedures must include an equal opportunity for both parties to present witnesses and other evidence and the same appeal rights.
· A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.
· A school must notify both parties of the outcome of the complaint.
US Department of Education Office of Civil Rights Fact Sheet.
Even in the face of an investigation by local law enforcement, the University should conduct a parallel investigation keeping in mind, as stated elsewhere, that the law enforcement investigation applies a “beyond a reasonable doubt” standard whereas the University Title IX investigation must apply a “preponderance of the evidence” standard.
What must Plaintiffs prove?
Many facts are relevant to a Title IX case, but Plaintiffs must establish the following elements by a preponderance of the evidence (more likely than not, 50%+1):
1. Deliberate indifference occurred in response to the discrimination (also assault or harassment) she faced. Davis v. Monroe Co. Bd. of Educ., 526 US 629 (1999).
2. The University “may not be liable for damages unless its deliberate indifference “subject” its students to harassment. That is, the deliberate indifference must, at a minimum, “cause [students] to undergo” harassment or “make them liable or vulnerable” to it. Davis at 644.
Plaintiffs can also pursue a claim for “erroneous outcome” meaning the University may have loosely followed procedures, but in doing so, they reached the wrong outcome. The present case seems to sound like a deliberate indifference case.
Many factors go into analyzing these elements. For instance, the degree of the University’s control over the perpetrator and the context in which the incident occurred is important. The University clearly has more control over a student-athlete than it might have over a general student. The University likewise has more control over a student living on campus than it does a student living off campus. If you look at the Alexis Johnson incident for instance, the University had additional control over both the harasser, Johnson, a student athlete, and the context of the harassment, an on-campus dorm.
In addition, the assault or harassment must be both severe and pervasive. An inadvertent incident, accidental touching, etc. will not create liability under Title IX.
The University could, at this point, file a Motion to Dismiss. The Motion to Dismiss would attack the legal sufficiency of Plaintiffs’ Complaint. Better stated, did the Plaintiffs’ meet an absolute minimum threshold in their Complaint to show that the University’s alleged “deliberate indifference to the initial discrimination subjected the plaintiff to further discrimination.” Williams v. UGA.
After documents are exchanged and depositions are taken, the University could then file a Motion for Summary Judgment. The Motion for Summary Judgment looks at all evidence as opposed to the Motion to Dismiss which only attacks the legal sufficiency of the Complaint.
One must keep in mind that these cases are not ultimately about whether or not the assault / discrimination occurred. The analysis is broader than that. Because a victim (Plaintiff in this case) ultimately did not pursue criminal charges may be a fact that becomes more relevant to potential damages than it is to the liability analysis. The focus is on the University and (1) what it did when it received a sexual harassment, sexual assault, or sex discrimination complaint regardless of the complaint’s merit or lack thereof and (2) what knowledge it had and what training and supervision it implemented to prevent the sexual harassment, sexual assault or sex discrimination.
What are key facts?
Did the University have appropriate policies in place to prevent Title IX violations?
Who enforced the policies?
Did the University follow those policies in each instance?
Were student athletes aware of University and Athletic Department policies regarding sexual assault and harassment?
Did the University have knowledge of prior incidents involving these student athletes?
Did the University have knowledge of prior incidents involving other student athletes?
Did outside influences impact the University’s investigation process or the ultimate outcome?
Did the University educate its student athletes about sexual assault, sexual harassment, and discrimination?
Did the University provide its sexual harassment policies to its student athletes?
Did the University properly supervise student athletes?
Did the University take action in light of the investigation findings to insure that future acts of discrimination and harassment do not occur?
Other Title IX Litigation
Williams v. UGA – Williams involved a UGA student athlete who sexually assaulted a female student. The proof demonstrated that UGA coaches and administrators had knowledge of prior sexual assault issues involving this student athlete. The 11th Circuit Court of Appeals (Tennessee is part of the 6th Circuit) held that UGA violated Title IX because it 1) failed to properly notify its student athletes of the University’s sexual harassment and other policies and 2) failed to properly supervise student athletes. Because UGA failed to advise and educate student athletes about the sexual harassment policies and because UGA failed to properly supervise its student athletes, they increased the chance that a student would become a victim of unwanted sexual advances, sexual harassment, sexual assault or sex discrimination.
Simpson v. Colorado – Simpson is important because of the breadth of proof which the Judge allowed to be introduced including media reports of prior sexual assaults and issues involving student athletes at Colorado. Colorado ultimately settled this case for a reported $2.65 Million as well as other concessions regarding policy changes and implementation of safeguards against future issues.
What is Title IX?
Title IX is part of the 1972 Education Amendments to federal civil rights laws. Title IX prohibits sex discrimination in any activity which receives federal funding.
In its infancy, Title IX was used to promote gender equality. Specifically, Title IX is the instrument which brought program, scholarship, and facility access and equality to women’s athletics.
Title IX also creates legal liability for Universities (and other entities which receive federal funding) who know about, and ignore, sexual assault, harassment, and discrimination. This prong of Title IX is what Plaintiffs rely upon in the current lawsuit against the University of Tennessee.
When faced with a campus sexual assault (or some forms of off campus sexual assault involving students), the University or a law enforcement agency is obviously obligated to conduct a thorough criminal investigation to determine whether the incident warrants criminal charges or discipline within the University’s discipline program. That, however, is not the only requirement. Universities must also advise potential victims of their rights under Title IX and conduct a Title IX investigation.
What must schools do when faced with a sexual assault or similar case?
The US Department of Education provides the following guidance regarding necessary steps a University must take when it receives a complaint of sexual violence:
· If sexual violence has occurred, a school must take prompt and effective steps to end the sexual violence, prevent its recurrence, and address its effects, whether or not the sexual violence is the subject of a criminal investigation.
· A school must take steps to protect the complainant as necessary, including interim steps taken prior to the final outcome of the investigation.
· A school’s grievance procedure must provide for students to file complaints of sex discrimination, including complaints of sexual violence. These procedures must include an equal opportunity for both parties to present witnesses and other evidence and the same appeal rights.
· A school’s grievance procedures must use the preponderance of the evidence standard to resolve complaints of sex discrimination.
· A school must notify both parties of the outcome of the complaint.
US Department of Education Office of Civil Rights Fact Sheet.
Even in the face of an investigation by local law enforcement, the University should conduct a parallel investigation keeping in mind, as stated elsewhere, that the law enforcement investigation applies a “beyond a reasonable doubt” standard whereas the University Title IX investigation must apply a “preponderance of the evidence” standard.
What must Plaintiffs prove?
Many facts are relevant to a Title IX case, but Plaintiffs must establish the following elements by a preponderance of the evidence (more likely than not, 50%+1):
1. Deliberate indifference occurred in response to the discrimination (also assault or harassment) she faced. Davis v. Monroe Co. Bd. of Educ., 526 US 629 (1999).
2. The University “may not be liable for damages unless its deliberate indifference “subject
Plaintiffs can also pursue a claim for “erroneous outcome” meaning the University may have loosely followed procedures, but in doing so, they reached the wrong outcome. The present case seems to sound like a deliberate indifference case.
Many factors go into analyzing these elements. For instance, the degree of the University’s control over the perpetrator and the context in which the incident occurred is important. The University clearly has more control over a student-athlete than it might have over a general student. The University likewise has more control over a student living on campus than it does a student living off campus. If you look at the Alexis Johnson incident for instance, the University had additional control over both the harasser, Johnson, a student athlete, and the context of the harassment, an on-campus dorm.
In addition, the assault or harassment must be both severe and pervasive. An inadvertent incident, accidental touching, etc. will not create liability under Title IX.
The University could, at this point, file a Motion to Dismiss. The Motion to Dismiss would attack the legal sufficiency of Plaintiffs’ Complaint. Better stated, did the Plaintiffs’ meet an absolute minimum threshold in their Complaint to show that the University’s alleged “deliberate indifference to the initial discrimination subjected the plaintiff
After documents are exchanged and depositions are taken, the University could then file a Motion for Summary Judgment. The Motion for Summary Judgment looks at all evidence as opposed to the Motion to Dismiss which only attacks the legal sufficiency of the Complaint.
One must keep in mind that these cases are not ultimately about whether or not the assault / discrimination occurred. The analysis is broader than that. Because a victim (Plaintiff in this case) ultimately did not pursue criminal charges may be a fact that becomes more relevant to potential damages than it is to the liability analysis. The focus is on the University and (1) what it did when it received a sexual harassment, sexual assault, or sex discrimination complaint regardless of the complaint’s merit or lack thereof and (2) what knowledge it had and what training and supervision it implemented to prevent the sexual harassment, sexual assault or sex discrimination.
What are key facts?
Did the University have appropriate policies in place to prevent Title IX violations?
Who enforced the policies?
Did the University follow those policies in each instance?
Were student athletes aware of University and Athletic Department policies regarding sexual assault and harassment?
Did the University have knowledge of prior incidents involving these student athletes?
Did the University have knowledge of prior incidents involving other student athletes?
Did outside influences impact the University’s investigation process or the ultimate outcome?
Did the University educate its student athletes about sexual assault, sexual harassment, and discrimination?
Did the University provide its sexual harassment policies to its student athletes?
Did the University properly supervise student athletes?
Did the University take action in light of the investigation findings to insure that future acts of discrimination and harassment do not occur?
Other Title IX Litigation
Williams v. UGA – Williams involved a UGA student athlete who sexually assaulted a female student. The proof demonstrated that UGA coaches and administrators had knowledge of prior sexual assault issues involving this student athlete. The 11th Circuit Court of Appeals (Tennessee is part of the 6th Circuit) held that UGA violated Title IX because it 1) failed to properly notify its student athletes of the University’s sexual harassment and other policies and 2) failed to properly supervise student athletes. Because UGA failed to advise and educate student athletes about the sexual harassment policies and because UGA failed to properly supervise its student athletes, they increased the chance that a student would become a victim of unwanted sexual advances, sexual harassment, sexual assault or sex discrimination.
Simpson v. Colorado – Simpson is important because of the breadth of proof which the Judge allowed to be introduced including media reports of prior sexual assaults and issues involving student athletes at Colorado. Colorado ultimately settled this case for a reported $2.65 Million as well as other concessions regarding policy changes and implementation of safeguards against future issues.
