1. TITLE IX CASE LAW REVIEW Presented by W. Scott Lewis, J. D. Saundra K
TITLE IX CASE LAW REVIEW Presented by W. Scott Lewis, J.D. Saundra K. Schuster, J.D. Brett A. Sokolow, J.D. .

2. © 2012 ATIXA all rights reserved
MEET YOUR PRESENTERS
Brett 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

3. © 2011 ATIXA all rights reserved
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.
© 2011 ATIXA all rights reserved

4. © 2012 ATIXA all rights reserved
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.
© 2012 ATIXA all rights reserved

5. Jackson v. Birmingham Board of Education
544 U.S. 167 (2005)
© 2012 NCHERM all rights reserved

6. Jackson v. Birmingham
A deeply divided U.S. Supreme Court decided this landmark case in 2005
This case involved a claim of retaliation for filing complaints of sex discrimination under Title IX
The Court held that individuals who bring complaints about sex discrimination under Title IX can seek damages for retaliation for whistle-blowing
Roderick Jackson, a high school teacher and coach, complained to school officials about the school’s inequitable treatment of the girls’ basketball team
K-12 Case
Jackson complains about inequity in sports programs’ funding (gender)
He begins to get negative evaluations
2001 – Dismissed as coach, retained as teacher
He sues under Title IX’s private right of action
© 2012 NCHERM all rights reserved

7. Jackson v. Birmingham
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
© 2012 NCHERM all rights reserved

8. Jackson v. Birmingham
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”
JUSTICE O’CONNER WROTE FOR THE MAJORITY
THE COURT REASONED THAT RETALIATION AGAINST A PERSON BECAUSE THAT PERSON HAS COMPLAINED OF SEX DISCRIMINATION WAS ANOTHER FORM OF INTENTIONAL SEX DISCRIMINATION UNDER TITLE IX
© 2012 NCHERM all rights reserved

9. Lisa Simpson, Anne Gilmore v. University of Colorado Boulder, et al.
U.S. Ct. of Appeals, 10th Circuit, September 6, 2007
© 2012 NCHERM all rights reserved

10. Lisa Simpson, Anne Gilmore v. University of Colorado Boulder, et al.
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.
© 2012 NCHERM all rights reserved

11. 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.
© 2012 NCHERM all rights reserved

12. Lisa Simpson, Anne Gilmore v. University of Colorado Boulder, et al.
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.
© 2012 NCHERM all rights reserved

13. Lisa Simpson, Anne Gilmore v. University of Colorado Boulder, et al.
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.
© 2012 NCHERM all rights reserved

14. Lisa Simpson, Anne Gilmore v. University of Colorado Boulder, et al.
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.
© 2012 NCHERM all rights reserved

15. Lisa Simpson, Anne Gilmore v. University of Colorado Boulder, et al.
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.
© 2012 NCHERM all rights reserved

16. Tiffany Williams v. Board of Regents of University of Georgia U. S. Ct
Tiffany Williams v. Board of Regents of University of Georgia U.S. Ct. of Appeals, 11th Circuit, February 9, 2007
© 2012 NCHERM all rights reserved

17. Tiffany Williams v. Board of Regents of University of Georgia
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.
Williams’s complaint also alleges that defendants James Harrick, former head coach of UGA’s men’s basketball team, Vincent Dooley, Athletic Director of the University of Georgia Athletic Association (“UGAA”), and Michael Adams, President of UGA and UGAA, were personally involved in recruiting and admitting Cole even though they knew he previously had disciplinary and criminal problems, particularly those involving harassment of women, at other colleges.
This case presents a factually distinct scenario from our and the Supreme Court’s precedents. In each of those cases, the defendant did not learn about the alleged harasser’s proclivities until the alleged harasser became a teacher or a student at the defendant’s school. Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999) (student); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) (teacher);
Furthermore, UGA and UGAA knew about student-athletes’ suggestions that the athletic coaches should inform student-athletes about the applicable sexual harassment policy. UGA and UGAA’s failure to inform its student-athletes about the applicable sexual harassment policy and failure to supervise its student-athletes subjected Williams to this further harassment and caused Williams to be the victim of a conspiracy between Cole, Brandon Williams, and Thomas to sexually assault and rape her. By placing Cole in a student dormitory and failing to supervise him in any way or to inform him of their expectations of him under the applicable sexual harassment policy, UGA and UGAA substantially increased the risk faced by female students at UGA.
Furthermore, viewing the evidence in the light most favorable to Williams, UGA acted with deliberate indifference again when it responded to the January 14 incident. Although UGA Police seem to have performed a thorough investigation, UGA failed to provide an adequate response. Within forty-eight hours of the incident, UGA had a preliminary report providing details about the incident, and by April 2002, had a full report, including information about interviews with suspects and witnesses, from UGA Police. Nevertheless, UGA waited another eight months before conducting a disciplinary hearing to determine whether to sanction the alleged assailants. By that point, two of the alleged
assailants no longer attended UGA. The fact that the disciplinary panel ultimately
decided not to sanction the alleged assailants is immaterial because it fails to
explain why UGA waited almost eleven months to take corrective action,
especially considering the fact that UGA Police’s report provided substantial
evidence corroborating Williams’s version of the January 14 incident. To the
extent that UGA argues that it waited so long because of the pending criminal
trials against the assailants, this argument also fails because: (1) the pending
criminal charges did not affect UGA’s ability to institute its own procedures; (2)
the criminal charges were an ineffectual means to prevent future attacks at UGA
while the charges were pending; and (3) the disciplinary proceedings were not
instituted for another four months after Brandon Williams’s acquittal and the
dismissal of charges against Cole and Thomas.
Once again, UGA’s deliberate indifference was followed by further discrimination, this time in the form of effectively denying Williams an opportunity to continue to attend UGA. Although Williams withdrew from UGA the day after the January 14 incident, we do not believe that at this stage her withdrawal should foreclose her argument that UGA continued to subject her to discrimination. In light of the harrowing ordeal that Williams faced on January 14, her decision to withdraw from UGA was reasonable and expected. Viewing the evidence in the light most favorable to Williams, UGA failed to take any precautions that would prevent future attacks from Cole, Thomas, Brandon Williams, or like-minded hooligans should Williams have decided to return to UGA, either by, for example, removing from student housing or suspending the alleged assailants, or implementing a more protective sexual harassment policy to deal with future incidents. Considering what had already occurred, UGA’s failure was inexplicable and discriminatory.
Once Cole was a student-athlete at UGA and placed in a dormitory, the
defendants’ did not supervise or even counsel him against sexual harassment or
other sexual misconduct.
Even after the rape and assault, which Cole orchestrated, the defendants failed for months to remove Cole and the other attackers from the university. It is likely that this failure prevented Williams from returning to the university to continue her education.
© 2012 NCHERM all rights reserved

18. Tiffany Williams v. Board of Regents of University of Georgia
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.
© 2012 NCHERM all rights reserved

19. Tiffany Williams v. Board of Regents of University of Georgia
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.
© 2012 NCHERM all rights reserved

20. Tiffany Williams v. Board of Regents of University of Georgia
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
© 2012 NCHERM all rights reserved

21. Melissa Jennings and Debbie Keller vs
Melissa Jennings and Debbie Keller vs. The University of North Carolina at Chapel Hill, et al
482 F.3d 686 (2007)
© 2012 NCHERM all rights reserved

22. 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
© 2012 NCHERM all rights reserved

23. Jennings v. University of N. Carolina
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

24. Jennings v. University of N. Carolina
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
© 2012 NCHERM all rights reserved

25. Fitzgerald v. Barnstable School Committee
U.S. Supreme Court, January 21, 2009
© 2012 NCHERM all rights reserved

26. 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
© 2012 NCHERM all rights reserved

27. Fitzgerald v. Barnstable School Committee
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.
© 2012 NCHERM all rights reserved

28. Fitzgerald v. Barnstable School Committee
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.
© 2012 NCHERM all rights reserved

29. 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

30. Doe v. University of the Pacific
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.
© 2012 ATIXA all rights reserved

31. Doe v. University of the Pacific
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.
© 2012 ATIXA all rights reserved

32. Doe v. University of the Pacific
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.
© 2012 ATIXA all rights reserved

33. Doe v. University of the Pacific
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.
© 2012 ATIXA all rights reserved

34. Doe v. University of the Pacific
Facts & Holding:  
Plaintiff filed a Title IX action filed against the University claiming that it:
Did not prevent the assault (by failing to investigate a prior assault properly);
Demonstrated "deliberate indifference" to sexual harassment in failing to respond appropriately to her complaint, and
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

35. Doe v. University of the Pacific
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

36. 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

37. Doe v. University of the Pacific
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
© 2012 ATIXA all rights reserved

38. Doe v. University of the Pacific
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.
© 2012 ATIXA all rights reserved

39. 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.
© 2012 ATIXA all rights reserved

40. Doe v. University of the South
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

41. Doe v. University of the South
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.
© 2012 ATIXA all rights reserved

42. 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.
© 2012 ATIXA all rights reserved

43. Questions? THANK YOU! Brett@atixa.org Saundra@atixa.org
© 2012 ATIXA all rights reserved