Title IX and Sexual Harassment: Private Rights of Action, Administrative Enforcement, and Proposed Regulations
Released: 2019-04-12T00:00:00

Background

Title IX of the Education Amendments of 1972 (Title IX) provides an avenue of legal relief for victims of sexual abuse and harassment committed by professors, teachers, coaches, and others at educational institutions. The statute prohibits discrimination "on the basis of sex" of any person in an educational program or activity receiving federal funding. Though Title IX makes no explicit reference to sexual abuse or harassment, the Supreme Court has held that a school district can violate the statute, and be held liable for damages, based on a deliberately indifferent response to a teacher's sexual abuse or harassment of a student. The Court has also held that a school board may be liable under Title IX for a deliberately indifferent response to student-on-student sexual harassment. Meanwhile, federal agencies that administratively enforce the statute, such as the Department of Education (ED), have also determined that educational institutions can be held responsible for instances of sexual harassment under Title IX in certain circumstances.

Title IX is thus primarily enforced in two ways: (1) through private rights of action directly against schools by or on behalf of students subject to such harassment in certain circumstances; and (2) by federal agencies that provide funding to educational programs.

With respect to the latter enforcement prong, like several other federal civil rights statutes, Title IX makes compliance with its antidiscrimination mandate a condition for receiving federal funding in any education program or activity. Title IX applies to federal-funded schools at all levels of education. For instance, all public school districts receive some federal financial assistance, as do most institutions of higher education through participation in federal student aid programs. Notably, when any part of a school district or institution of higher education receives federal funds, all of the recipient's operations are covered by Title IX.

The text of Title IX does not expressly mention sexual abuse or harassment, while current regulations implementing the statute also do not explicitly address sexual harassment (although the regulations do require schools to designate at least one employee to function as a Title IX Coordinator). In each of the last several presidential administrations, however, the Department of Education (ED) has issued guidance documents that instruct schools regarding their responsibilities under Title IX when addressing allegations of sexual harassment. In response, educational institutions have developed procedures and practices to investigate and respond to allegations of sexual harassment and assault. And ED recently issued another notice of proposed rulemaking, after having revoked some of its prior guidance to schools in 2017. As discussed in this report, if adopted, the regulations would significantly change educational institutions' responsibilities for responding to sexual harassment allegations.

To place the proposed Title IX regulations in context, this report provides background on the legal landscape that informs the proposal. First, the report examines how federal courts have understood Title IX's requirements in the context of private rights of actions brought by students directly against educational institutions seeking damages for sexual abuse or harassment. The report continues by examining how federal agencies have enforced Title IX, with particular focus on ED's guidance documents that direct schools on how to respond to sexual harassment and assault allegations. The report then considers various constitutional challenges brought by students against public universities, which claim that some universities' responses to allegations of sexual harassment have violated the due process rights of the accused. With this backdrop set, the report examines ED's proposed regulations with an emphasis on how they would alter the responsibilities of schools in complying with Title IX.

A Private Right of Action to Enforce Title IX

Title IX of the Education Amendments of 1972 states that "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance," subject to certain exemptions. In other words, recipients of federal funding, which administer an educational program or activity, are prohibited from discriminating on the basis of sex.

The statute, however, does not expressly provide for a private right of action by which victims of sex discrimination may recover for a Title IX violation. Nor does the statute expressly prohibit sexual harassment, abuse, or molestation as forms of unlawful sex discrimination, or otherwise define unlawful sexual abuse or harassment. Title IX also does not delineate the circumstances in which a school or educational program may be liable for such conduct.

Given the absence of statutory text "to shed light on Congress' intent," federal courts have played a primary, if not exclusive, role in establishing the remedial scheme by which victims of sexual harassment or abuse may seek relief under Title IX through a private right of action. The Supreme Court first interpreted Title IX to provide for a judicially implied private right of action against a federal-funded educational institution for sexual harassment, and later, an implied damages remedy in such actions. Since then, and in the absence of legislative amendments to Title IX on those issues, the Court has also created the legal standard for establishing liability under Title IX for sexual abuse or harassment committed by a teacher, and other students. The Court, and numerous federal courts of appeals, have described this judicially created liability standard—which draws upon the "deliberate indifference" standard as applied under 42 U.S.C. § 1983 —as a "high bar for plaintiffs to recover under Title IX."

Critically, in a Title IX private right of action for damages, an educational institution (or other federally funded program or activity) is not strictly liable for a principal's or teacher's sexual harassment or abuse of a student. In other words, the fact that sexual harassment or abuse occurred and was committed by these individuals is not the basis for a funding recipient's liability under the Supreme Court's remedial scheme. Rather, Title IX liability turns on the recipient's response to its actual knowledge of that conduct. A recipient will be liable only when its response was so deficient as to amount to "deliberate indifference" to the alleged harassment or abuse.

Gebser and Davis: The Supreme Court's Title IX Liability Standard

The private right of action currently available under Title IX is one of judicial implication—that is, the Court has interpreted the statute to imply such a right, in the absence of express statutory language providing for it. A private right of action provides a personal legal remedy for victims of sex discrimination in the form of specific relief or damages. In contrast, and as discussed in a later section, administrative enforcement of the statute makes its general focus the institutional policies and practices of the recipient educational institution.

Two Supreme Court decisions, together, set out the requirements for establishing an educational funding recipient's liability under Title IX for damages for sexual abuse or harassment: Gebser v. Lago Vista Independent School District and Davis N ext Friend LaShonda D. v. Monroe County Board of Education . The Court's liability standard premises an institution's Title IX liability for sexual harassment or abuse based on the institution's "deliberate indifference" in responding to knowledge of that conduct. Thus—and critical to understanding a Title IX private right of action for damages—an educational institution (or other federally funded program or activity) is not strictly liable for a principal's or teacher's sexual harassment or abuse of a student. Indeed, the Supreme Court in Gebser expressly rejected such arguments urging it to apply agency principles to Title IX such that a school would be vicariously liable for such harassment.

Instead, liability attaches only if a plaintiff establishes that the funding recipient's response to its "actual" knowledge of the discrimination was deliberately indifferent. Put another way, under the Court's remedial scheme, liability under Title IX is based on the funding recipient's " own failure to act" adequately in response to known misconduct, not the misconduct itself. Thus, an institution will not be liable absent a showing of deliberate indifference, regardless of whether the conduct committed by a principal or teacher could be characterized as egregious.

In creating this standard in Gebser , the Court had attempted to "'infer how the [1972] Congress would have addressed the issue had the . . . action been included as an express provision in the' statute." That task, the Court observed, "inherently entail[ed] a degree of speculation." To inform its analysis, the Court relied significantly on the statute's administrative enforcement provision because, in its view, the provision "contain[ed] important clues" from which to infer legislative intent regarding Title IX liability. The Court observed that, pursuant to that provision, agencies that disburse federal funds may suspend or cut funds to a funding recipient for violating Title IX, but only after they "ha[ve] advised the appropriate person or persons of the failure to comply with the requirement and ha[ve] determined that compliance cannot be secured by voluntary means." Because the statute's administrative procedure "require[s] notice to the recipient and an opportunity to come into voluntary compliance," the Court reasoned that it too would similarly require "actual notice" to an "appropriate person" to establish liability for damages in a private right of action under Title IX.

The Court also concluded that a recipient would be liable under Title IX only where a school official responds to that "actual" notice so deficiently that its response amounts to "deliberate indifference." In so holding, the Court again looked to Title IX's administrative enforcement scheme and observed that it "presupposes that an official who is advised of a Title IX violation refuses to take action to bring the recipient into compliance." The Court found "a rough parallel in the standard of deliberate indifference," from case law arising under 42 U.S.C. § 1983 addressing claims "alleging that a municipality's actions in failing to prevent a deprivation of federal rights" caused a violation.

The Court thus held that "[u]ntil Congress speaks directly on the subject . . . we will not hold a school district liable in damages under Title IX for a teacher's sexual harassment of a student absent actual notice and deliberate indifference" —a conclusion that elicited a strong dissent.

Deliberate Indifference

Deliberate indifference is a "high standard," as described by the Supreme Court in Davis , and must "at a minimum, 'cause [students] to undergo' harassment or 'make them liable or vulnerable' to it." Notably, the "deliberate indifference" standard does not require funding recipients to "remedy" the harassment. Rather, under Davis , a recipient's response to harassment will amount to deliberate indifference only if it is " clearly unreasonable in light of the known circumstances." Because this standard is not "a mere 'reasonableness' standard," a plaintiff must show more than the unreasonableness of a funding recipient's response to sexual abuse or harassment. The plaintiff must show that the recipient was clearly unreasonable in its response. Accordingly, a funding recipient is not liable under Title IX if it responds to sexual abuse or harassment "in a manner that is not clearly unreasonable."

In addition to the requisite showing of "deliberate indifference," the Court's standard also requires a plaintiff to establish other threshold showings to prevail in a Title IX suit for damages—both before reaching the question of "deliberate indifference" and after establishing "deliberate indifference" on the part of the school or entity.

"Actual" Notice of Discrimination by "An Appropriate Person"

Before reaching the issue of whether a funding recipient acted with "deliberate indifference," Gebser requires that a plaintiff establish that "an appropriate person" at the funding recipient had "actual knowledge of discrimination." Failure to show either "actual" notice or that such notice was provided to "an appropriate person" of the funding recipient may constitute the sole basis for a court's dismissal of a Title IX claim seeking damages for sexual harassment or abuse. An "appropriate person," under Gebser , is "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf." As discussed later in this report, what constitutes "actual" notice, and who may constitute an "appropriate person," have caused substantive splits among the circuits.

Student-to-Student Harassment: "Substantial Control," "Severe, Pervasive, and Objectively Offensive" Harassment, Denial of Educational Access

Even where "deliberate indifference" is established, the Supreme Court's liability standard further requires a plaintiff alleging student-to-student or peer harassment to make several additional showings: (1) that a funding recipient exercised "substantial control" over the harasser and the context in which the harassment occurred; (2) that the harassment itself was "severe, pervasive, and objectively offensive"; and (3) the denial of educational access resulting from the harassment.

With respect to "substantial control," Davis limits a school's liability for damages to circumstances in which the funding recipient exercised "substantial control" over the harasser and in which the harassment took place in a context subject to the recipient's control. If "the harasser is under the school's disciplinary authority," a recipient of federal funding may be liable for its deliberate indifference to the harassment, as the Court in Davis particularly emphasized the recipient's authority to take "remedial action" against the harassment. As for "substantial control" over the environment, "the harassment must take place in a context subject to the school district's control."

As to the nature of the sexual harassment itself, Davis requires that the plaintiff show that the conduct "is so severe, pervasive, and objectively offensive, and [] so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." Whether the conduct rises to this level depends, as the Court stated in Davis , "on a constellation of surrounding circumstances, expectations, and relationships," "including, but not limited to, the ages of the harasser and the victim and the number of individuals involved."

Finally, for harassment to have sufficiently affected the victim's education, the Court in Davis made two additional observations. On the one hand, the Court noted that evidence of a decline in the victim's grades—as was alleged there—"provides necessary evidence of a potential link between her education" and the alleged harassment. Yet, the Court also concluded that harassment is actionable under Title IX only when it is "serious enough to have the systemic effect of denying the victim equal access to an educational program or activity." Without defining what might constitute a "systemic effect," the Court offered one example of harassment that does not have such effect: "a single instance" of harassment, even when "sufficiently severe."

Federal Courts' Application of Gebser and Davis to Title IX Claims for Sexual Harassment or Abuse

The Supreme Court's Gebser and Davis decisions establish that a school or other educational program that receives federal funding will be liable under Title IX for damages for the sexual abuse or harassment of a student only if it acted with "deliberate indifference" in its response to known discrimination. Deliberate indifference, the Fifth Circuit has recently observed, "'is an extremely high standard to meet.'"

Applying this and other components of the Supreme Court's Title IX liability standard, lower federal courts have varied in their formulations of the evidence required to prove a Title IX claim. Some courts, for example, have interpreted Gebser and Davis to adopt a "hostile environment" analysis of Title IX claims alleging teacher-to-student harassment, in light of precedent analyzing harassment claims in the workplace context under Title VII of the Civil Rights Act. Meanwhile, other federal courts have focused their teacher-to-student analysis on whether a plaintiff has established the following elements:

"actual" notice of discrimination; by an "appropriate person" authorized to take corrective measures; and "deliberate indifference" by the funding recipient in response to known discrimination.

Where a Title IX claim alleges sexual harassment or assault committed by a student against another student , courts have additionally required the plaintiff to establish that:

the harassment was "so severe, pervasive, and objectively offensive"; the "victim-students [were] effectively denied equal access to an institution's resources and opportunities"; and the recipient exercised "substantial control" over the harasser and the context in which the harassment occurred.

As discussed in further detail below, federal courts of appeals vary—and at times directly conflict—regarding the evidence sufficient to satisfy these elements. Failure to satisfy any one of the elements may be the sole basis for dismissal of a Title IX claim.

What Knowledge Gives Rise to "Actual" Notice?

Under Gebser , a plaintiff must show that the funding recipient had "actual" notice of the discrimination; therefore, it is not enough to present evidence that a funding recipient reasonably s hould have known about the alleged sexual misconduct. Under the standard, then, what type of allegations reported to a school give rise to "actual" notice? Is it enough, for example, if a funding recipient has actual knowledge of a " substantial risk of abuse"? Does it require knowledge of specific allegations of harassment or abuse or—perhaps most narrowly—require knowledge of "severe, pervasive, and objectively offensive" conduct? Meanwhile, if a school is notified of a perpetrator's previous acts of sexual harassment or abuse, may that constitute actual notice of that individual's conduct as to others ?

Federal courts differ on these questions of actual notice, with some courts further differentiating between evidence that establishes actual notice of a teacher's sexual abuse versus actual notice of sexual violence or harassment committed by a student. As reflected below, which standard a court applies to evaluate "actual notice" is determinative—the claim may either proceed to the next phase of the analysis or be foreclosed altogether.

In Doe v. School Board of Broward County , the Eleventh Circuit addressed the question of whether complaints of two separate students about the same teacher were "sufficient in substance to alert [the principal] to the possibility" of that teacher's sexual assault of a third student. The court held in the affirmative, emphasizing the similarity between the two preceding reports, which alleged multiple occasions of the teacher's propositions for sex and dates, sexual touching, and sexual comments about their bodies. These reports, the court held, raised a triable issue that the principal had actual notice "of a pattern of harassment." And where the analysis of "actual notice" looks to knowledge of the risk of sexual abuse or harassment, the court further observed, "lesser harassment may [] provide actual notice of sexually violent conduct."

In Bay n ard v. Malone , however, the Fourth Circuit held that the school principal had no "actual" notice that a sixth grade teacher was sexually abusing a student in his class, despite receiving multiple prior reports that he molested children. There, the evidence reflected that before the plaintiff started sixth grade at the school, the principal had met with one of this teacher's former students, who reported that he had been sexually molested by the teacher while in the sixth grade, warned that the teacher was a pedophile, and that the principal should watch for certain behaviors. In addition, another teacher at the school told the principal about allegations that this teacher sexually molested children. Separately, the school librarian reported to the principal that she had walked in on the teacher with the plaintiff sitting in his lap, with his arm around the student, and their faces very close together, and that when the teacher saw her, he jumped up and the plaintiff fell to the floor. In relaying the incident, the librarian told the principal the behavior had been "inappropriate." Though the court noted that the principal "certainly should have been aware of the potential for abuse," it held that there was "no evidence in the record to support a conclusion that [the principal] was in fact aware that a student was being abused." The court dismissed the Title IX claim on the basis that no appropriate person had actual notice of the abuse of the plaintiff student.

As the above cases reflect, in the absence of a clear definition—either in the statute or from the Supreme Court—courts vary with respect to the nature, specificity, and frequency of allegations sufficient to constitute "actual" notice for the purpose of satisfying the first prong of the analysis for Title IX liability for sexual abuse or harassment.

Who Constitutes an "Appropriate Person"?

The Supreme Court's liability standard for Title IX not only requires actual notice, but also that this notice be made to "an appropriate person"—that is, "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf." Generally, federal appellate case law reflects that rather than treating an individual's title as dispositive, courts engage in fact-specific determinations that appear to focus principally on whether an individual had the ability to halt or address the misconduct or whether the individual occupied a position high enough within the hierarchy of the funding recipient to be fairly said to act in a representative capacity for the recipient.

Because the Court's opinions in Gebser and Davis do not clearly delineate which individuals may constitute "appropriate person[s]," federal courts have reached varying—and at times conflicting—determinations.

In the elementary or secondary school context, for example, courts vary as to which individuals— a principal, teacher, or guidance counselor —have the requisite "authority to address the alleged discrimination" and "institute" corrective action to constitute "an appropriate person."

Some federal courts of appeals have held that a public school principal may—but not always—constitute "an appropriate person." In Warren ex rel . Good v. Reading School District , the Third Circuit held, in a Title IX case alleging sexual abuse by a fourth grade teacher, that the school principal was an "appropriate person" in light of her authority to investigate a teacher's misconduct, which in turn implied her authority to "initiate" corrective measures such as reporting her findings to the school board. The Fourth Circuit, however, reached the opposite conclusion in Baynard v. Malone , holding that the principal—despite being responsible for supervising and evaluating teachers—was not an "appropriate person." The court emphasized that the principal could not "be considered the functional equivalent of the school district" and lacked the authority to "hire, fire, transfer, or suspend teachers."

Meanwhile, at least one federal court of appeals has held that a principal who engages directly in sexual abuse or harassment may not constitute an "appropriate person." In Salazar v. South San Antonio Independent School District , the Fifth Circuit interpreted Gebser to hold that where a school official sexually abuses a student, he or she cannot be considered an "appropriate person," even if he would otherwise constitute an "appropriate person." That case involved allegations that a vice principal, who later became principal, sexually abused a student from his third grade to seventh grade year. Though "uncontroverted testimony at trial" established that the school official had corrective authority to address sexual harassment during the time he molested the plaintiff, the Fifth Circuit reasoned that it was "highly unlikely" that he would take corrective measures or report his own behavior so as to provide actual notice to the funding recipient. The court further rejected the argument that the principal's abuse should be treated as an official action of the school district for Title IX liability purposes, given the Supreme Court's rejection of agency principles to Title IX. The Fifth Circuit concluded that the "goals and purpose" of Title IX "would not be accomplished or effectuated by permitting damage awards" in such circumstances.

In the higher education context, federal courts of appeals have engaged in similarly fact-specific analyses to determine whether a university employee—for example, a college dean, university counsel, or athletics director —constitutes an "appropriate person" for the purposes of a Title IX private right of action. The analyses in these cases appear to emphasize evidence relating to the individual's ranking in the university hierarchy, responsibilities involving receiving allegations of harassment, and ability to correct or halt the misconduct.

Yet, even when there arguably is such evidence, it may not be sufficient to render that individual an "appropriate person." In Ross v. University of Tulsa , for example, the Tenth Circuit held that campus security officers were not "appropriate person[s]" through whom the university could have actual notice of an on-campus sexual assault. The court rejected the contention that the officers' mandatory reporting of sexual assaults to university personnel rendered them "appropriate person[s]," instead likening mandatory reporting to a "clerical act" rather than taking corrective action. The court also rejected the argument that the officers' participation in investigations of campus violence rendered them "appropriate person[s]," as that contention, as presented, "would assume that anyone participating in the initiation of a corrective process" is an "appropriate person."

Given the variability of courts' analyses as to who may constitute an "appropriate person," it is unlikely that a school's or university's Title IX Coordinator will categorically constitute an "appropriate person." Rather, as reflected in the above decisions, a court's determination—based on the legal standard set out in Gebser —will likely depend on the characteristics it finds indicative of an "appropriate person" and the evidence relating to the individual's responsibilities in that institution.

Deliberate Indifference: A "Clearly Unreasonable" Response

As discussed earlier, after establishing "actual notice" of the discrimination to an "appropriate person," a plaintiff must additionally prove that the funding recipient acted with deliberate indifference in its response—that is, that the entity acted in a manner that was " clearly unreasonable in light of the known circumstances." Federal appellate courts interpret this standard to require more than a showing that the school or institution failed to respond or act reasonably, or was negligent. Nor is a school required to remedy the harassment to avoid liability in a private right of action based on "deliberate indifference."

In these highly fact-intensive analyses, courts examine the nature of the allegations the funding recipient had knowledge of, and what actions the recipient took, if any, in response to that information to determine whether the response was so "clearly unreasonable" as to amount to "deliberate indifference" to the alleged sexual harassment or abuse. The clearest cases of "deliberate indifference" generally concern evidence that the recipient made no effort to respond at all to "actual" notice of sexual harassment or abuse. Evidence of such circumstances might include, for example, a funding recipient's failure to initiate an investigation into serious allegations, or take any disciplinary actions in light of repeated reports of sexual harassment.

Where there is evidence that the funding recipient responded in some manner, however, federal case law reflects what appear to be divergent and variable analyses as to whether a response is so deficient as to amount to deliberate indifference. Federal appellate courts have commonly described the requisite showing for deliberate indifference as a "high" bar to meet.

In Doe ex rel . Doe v. Dallas Independent School District , for example, the Fifth Circuit held that the school district's response did not amount to deliberate indifference, despite evidence that could arguably be described as reflecting a deficient response. In that case, the plaintiffs, a group of former students, alleged that the same third grade teacher had sexually abused numerous male students, over the course of four years. The plaintiffs presented evidence that in response to a report of sexual molestation, the principal told the parent that the alleged perpetrator was a "good teacher" and that he knew her son was lying; failed to report the allegation to Child Protective Services; did not monitor the teacher further or require him to attend any training; and never raised the issue of sexual abuse again with the teacher until he was ultimately arrested. In the court's view, this evidence failed to create a triable issue of deliberate indifference, as the principal had nonetheless interviewed the student, spoken with his mother, and warned the teacher that if the allegations were true, "he would be 'dealt with.'" It could not say, the court concluded, that these actions "were an inadequate response" to the student's allegation.

When faced with apparently similar evidence of a school's response to allegations of teacher sexual misconduct, the Eleventh Circuit held that, given "serious deficiencies," the district court had erred in holding that defendant's response, as a matter of law, was not deliberately indifferent. There, the principal had received sexual harassment complaints by two students about the same teacher. In its analysis, the court highlighted the response to the second complaint, because by that time, the principal had notice of a possible pattern. The principal, however, "effectively did nothing other than obtain a written statement" from the student and the teacher. In addition, though the principal, as he had with the first complaint, reported the second complaint to the school board's special investigative unit, he nonetheless failed to notify the unit that the allegation concerned "the same teacher who had been the subject of a formal investigation just months earlier." It could not be said, the court concluded, that "merely because school officials 'confronted [the teacher],' 'obtained statements' from the complaining students, and 'informed the [unit] of the sexual misconduct allegations' (while omitting material details)," that this response was reasonable. Rather, the "failure to institute any corrective measures aimed at ferreting out the possibility of [the teacher]'s sexual harassment of his students could constitute deliberate indifference."

Meanwhile, some courts of appeals have analyzed allegations of deliberate indifference that, in their view, the Court's Gebser and Davis decisions did not directly address. In Simpson v. University of Colorado, Boulder , for example, the Tenth Circuit addressed allegations that a university had an "official policy of deliberate indifference" by failing to provide adequate training or guidance in light of an "obvious" need for such actions. There, the head coach and other staff of the university's football program selected current players to host high school recruits on campus, for the purpose of "'show[ing] the recruits a good time.'" During one such football recruiting visit, the plaintiffs, who had agreed to meet with them, alleged that university football players and high school recruits sexually assaulted them.

In analyzing the issue of deliberate indifference, the court highlighted evidence that the university coaching staff had prior and ongoing knowledge of sexual assaults occurring during football recruitment and by football players, including the rape of a female student by a university football player two months before the plaintiffs were assaulted. The university had also been previously advised by the local district attorney to implement changes and training to its football recruiting program in light of such sexual assaults. In addition, the head coach "continued to resist recruiting reforms." One player testified that he received little guidance on his responsibilities as a "player-host"; and a handbook provided by the school to the players, the court observed, did not "provide guidance to player-hosts on appropriate behavior by themselves and recruits."

The court emphasized that the evidence would support findings that, before the plaintiffs had been assaulted, the head coach had both general and specific knowledge of sexual assaults occurring during recruiting visits, that there had been no change in the recruiting program to lessen the likelihood of such assaults, and that the university "nevertheless maintained an unsupervised player-host program." The evidence, the court held, created a triable issue of deliberate indifference.

As with the other components of the Supreme Court's standard for a Title IX private right of action—"actual" notice to an "appropriate person"—federal case law reflects fact-intensive, variable determinations with respect to the evidence necessary to meet the "high" bar for showing deliberate indifference on the part of a funding recipient.

Administrative Enforcement of Title IX

In addition to the private rights of action discussed above, Title IX is also enforced by federal agencies that provide funding to educational programs. Title IX makes nondiscrimination based on sex a condition for receiving federal financial assistance in any education program or activity. In this administrative enforcement context, if a school is found to have violated Title IX, the ultimate sanction is termination or suspension of federal funds, rather than a legal judgment requiring payment of damages to a particular student. Agencies are authorized to issue regulations (subject to presidential approval) and orders to enforce the statute and are responsible for monitoring recipients' compliance with Title IX. While a number of federal agencies issue funds for educational programs, and thus are responsible for enforcing the statute with respect to recipients of financial assistance for educational programs, two agencies play particularly prominent roles in enforcing Title IX.

Pursuant to the Education Amendments of 1974, the Secretary of Education (ED) is specifically directed to promulgate regulations concerning the prohibition of sex discrimination at education programs that receive federal assistance. Because ED is, among other things, "the primary administrator of federal financial assistance to education," the agency plays a lead role in enforcing Title IX against educational institutions. And according to an executive order, the Attorney General coordinates the implementation and enforcement of Title IX across the executive branch. Subject to the coordinating function of the Attorney General, the Department of Justice's Civil Rights Division and OCR collaborate in enforcing Title IX consistent with a memorandum of understanding reached between the agencies, which notes that OCR has primary responsibility for enforcing the statute directly against recipients of financial assistance from ED through complaint investigations and compliance reviews.

Accordingly, ED has promulgated regulations implementing Title IX that apply to traditional educational institutions of all levels that receive federal assistance, including elementary and secondary schools, as well as institutions of higher education. Those regulations specifically bar educational institutions from excluding individuals or denying the benefits of any education program or activity on the basis of sex. ED regulations also require that recipients of federal financial assistance that operate education programs designate an employee (commonly referred to as the Title IX Coordinator) to coordinate efforts to comply with ED regulations regarding sex-based discrimination. Further, schools must establish grievance procedures that provide "prompt and equitable resolution" of complaints alleging prohibited actions.

Pursuant to its role in enforcing Title IX, OCR may conduct periodic reviews of institutions, or directed investigations, to ensure that recipients of federal funds are complying with applicable requirements. OCR also receives complaints from individuals alleging violations of Title IX by educational institutions and investigates allegations. When violations of the statute are found through these means, the office can seek informal resolution through a resolution agreement. According to OCR, if negotiations do not reach a resolution agreement, it may then take more formal enforcement measures, including seeking to suspend or terminate an institution's funding.

Notably, neither Title IX's text nor ED's current regulations directly address sexual harassment. In the administrative context, ED's OCR has issued a series of guidance documents that have interpreted Title IX to bar sexual harassment and define distinct responsibilities for educational institutions with regard to such allegations.

These documents—while sometimes subject to change—generally reflect a different analysis for assessing a school's Title IX liability for harassment than the Supreme Court case law addressing private rights of action for damages for sexual abuse or harassment. In particular, ED has applied a constructive notice requirement that prompts a school's Title IX responsibility to respond, rather than "actual notice" to "an appropriate person" as required in the context of suits for damages. In addition, while the Supreme Court has explained that a school's response will result in liability only where "clearly unreasonable," ED has articulated baseline standards for how schools must respond to comply with Title IX. Finally, while the Supreme Court rejected holding schools responsible for sexual harassment under theories of vicarious liability, ED has held schools responsible for sexual harassment under Title IX where a teacher commits misconduct in the scope of their employment.

1997 ED Guidance and Subsequent Supreme Court Decisions Regarding Sexual Harassment

In 1997, OCR released a guidance document stating that sexual harassment of students by school employees, other students, or third parties is a form of sex discrimination prohibited by Title IX. The guidance explained that two general types of conduct constituted sexual harassment:

1. Quid pro quo harassment: wherein a school employee "explicitly or implicitly conditions a student's participation in an education program or activity or bases an educational decision on the student's submission to unwelcome sexual advances, requests for sexual favors, or other verbal, nonverbal, or physical conduct of a sexual nature"; or 2. Hostile environment harassment: wherein sexual harassing conduct by a school's employee, another student, or a third party "is sufficiently severe, persistent, or pervasive to limit a student's ability to participate in or benefit from an education program or activity, or to create a hostile or abusive educational environment."

In the former case, the 1997 Guidance explained that a school would be liable for quid pro quo harassment by an employee in a position of authority whether or not it knew or should have known of the harassment. In the latter case, the 1997 Guidance explained that, in instances of hostile environment harassment by employees , a school would be liable for harassment if the employee acted with apparent authority or was aided in carrying out the harassment due to his or her position.

With respect to sexual harassment by other students or third parties , a school would be liable for harassment if "(i) a hostile environment exists in the school's programs or activities, (ii) the school knows or should have known of the harassment, and (iii) the school fails to take immediate and appropriate corrective action." The Guidance explained that while Title IX does not render a school responsible for the actions of its students, it does make schools responsible for their "own discrimination in failing to remedy [harassment] once the school has notice."

Following the release of OCR's 1997 Guidance, the Supreme Court shortly thereafter recognized a substantively different standard for establishing liability in a private suit for damages directly against a school. As discussed above, in 1998, in Gebser , the Supreme Court ruled that in cases of harassment committed by a teacher , a school district is liable only when it has actual knowledge of allegations by an "appropriate person," and so deficiently responds to those allegations that its response amounts to deliberate indifference to the discrimination. And the next year in Davis , the Court held that in addition to a showing of actual knowledge by an appropriate person, and deliberate indifference, a plaintiff suing for damages for sexual harassment committed by a student must show that the conduct was "so severe, pervasive, and objectively offensive" that it denied the victim equal access to educational opportunities or benefits.

Crucially, the Court in Gebser distinguished between actions by a school that could result in Title IX liability for damages in a private right of action, and Title IX administrative requirements imposed by a federal agency in implementing and enforcing the statute. According to the Court, agencies possess authority to enforce requirements that effectuate Title IX's mandate, "even if those requirements do not purport to represent a definition of discrimination under the statute." In other words, agencies enforcing Title IX may administratively require recipients to comply with certain procedures and rescind funding for violations, even though breaches of such requirements might not subject a school to liability under a private suit for damages.

ED's Guidance Documents Regarding Sexual Harassment Subsequent to Gebser and Davis

Following these Supreme Court decisions regarding the standard for liability in Title IX damages suits alleging sexual harassment, ED issued a number of guidance documents generally reaffirming its basic position outlined in its 1997 Guidance, including with respect to notice, a school's responsibilities under Title IX to comply with the statute, and the application of vicarious liability in certain situations. In these documents, ED has indicated that the liability standard imposed by the Supreme Court for Title IX sexual harassment violations is distinct from the standards appropriate in the administrative enforcement context. In other words, a school's responsibilities in responding to sexual harassment allegations under Title IX have been treated differently in the context of a suit for damages than in the administrative enforcement context.

2001 Sexual Harassment Guidance

In 2001, OCR issued a Revised Sexual Harassment Guidance document that—in light of the intervening Supreme Court decisions that set a more stringent standard for obtaining relief regarding private damages actions —reaffirmed the standards of the agency's 1997 Guidance as grounded in Title IX regulations and distinct from private damages litigation. The guidance explicitly applies to all educational institutions that receive federal funds, including universities. It outlines the compliance standards OCR uses for enforcing and investigating violations of Title IX.

Required Response

As a threshold matter, schools are responsible for adopting grievance procedures that provide prompt and equitable resolution of complaints of sexual harassment. Failure to do so will mean that a school is in violation of Title IX. Generally speaking, when sexual harassment has occurred, educational institutions must take "prompt and effective action calculated to end the harassment, prevent its recurrence, and, as appropriate, remedy its effects." If the "school, upon notice of the harassment, responds by taking prompt and effective action to end the harassment and prevent its recurrence, the school has carried out its responsibility under the Title IX regulations." Though framed as guidance, the 1997 and 2001 documents were promulgated by ED after an opportunity for the public to comment on them. (This does not mean, however, that the documents are legislative rules that carry the force of law; guidance documents generally serve to inform the public about the agency's approach to enforcement of the laws and regulations it administers. )

Types of Harassment

The 2001 Guidance stated that "unwelcome conduct of a sexual nature" constitutes sexual harassment. It indicated, however, that it aimed to "move away from specific labels for types of sexual harassment." Instead, the 2001 Guidance explained that the crucial issue in each case "is whether the harassment rises to a level that it denies or limits a student's ability to participate in or benefit from the school's program based on sex." In that situation, "harassment has occurred that triggers a school's responsibilities under, or violates, Title IX or its regulations." That said, it went on to describe types of harassment that largely tracked the categories outlined in the 1997 Guidance: quid pro quo harassment and hostile environment harassment. In the former situation, wherein a teacher or employee conditions a benefit or educational decision on a student's submission to unwelcome sexual conduct, such harassment is automatically considered harassment that limits or denies a student's ability to participate in or benefit from the school's program and thus discriminates based on sex in violation of Title IX.

Unlike so-called quid pro quo harassment, a case of hostile environment harassment requires a further investigation into whether the conduct is sufficiently serious to limit or deny a student's ability to benefit from or participate in a school's program because of sex. Because fellow students do not generally have positions of authority, student-on-student harassment generally is considered hostile environment harassment rather than quid pro quo harassment, although teachers and employees may also create a hostile environment. The 2001 Guidance explained that, in evaluating whether hostile environment harassment has occurred, OCR examines all circumstances relevant to the situation. This includes whether the conduct in question was welcome.

Harassment by a Teacher or Employee

The 2001 Guidance also explained that, in the context of harassment by a teacher or school employee, the extent of a school's responsibilities to address harassment depends on whether the harassment occurs within "the context of the employee's provision of aid, benefits, or services to students" (i.e., in the context of their job responsibilities). With respect to harassment by teachers or employees in the scope of their job responsibilities (or who reasonably appear to be acting in that capacity), assuming the harassment limits or denies a student's ability to benefit from or participate in a school program, a school is responsible for the discriminatory conduct and must stop the behavior, prevent its recurrence, and remedy the effects of harassment for the victim. In such situations, a school is responsible to do this "whether or not" it has notice of the behavior.

Whether sexual harassment occurs within the scope of an employee's job responsibilities can depend on a variety of factors. In cases of quid pro quo harassment, the behavior clearly occurs in the scope of an employee's job responsibilities. For hostile environment harassment, OCR will evaluate a number of factors to determine whether the harassment occurred in the context of an employee's job responsibilities. The 2001 Guidance also indicates that sometimes harassment that does not occur within an employee's job responsibilities will be sufficiently serious to create a hostile environment. In these cases, once a school has notice of the behavior, it has a duty to stop the harassment and prevent its recurrence.

Harassment by Other Students or Third Parties

Likewise, in the context of student-on-student harassment (or harassment by third parties) that creates a hostile environment, the school is responsible for eliminating the environment and preventing its recurrence. However, a school is in violation of Title IX if it has notice of the environment and fails to take "prompt and effective action" to correct the situation. In that case, the school is responsible for ending the harassment, preventing its recurrence, and remedying the effects of harassment for the student that "could reasonably have been prevented" if the school reacted appropriately.

Notice of Sexual Harassment

As noted above, in certain situations of harassment by a teacher or employee, schools are responsible for harassment even without notice. Otherwise, in cases of sexual harassment by employees, students, or third parties, the 2001 Guidance explains that recipients have notice of a sexually hostile environment if a responsible school employee "knew, or in the exercise of reasonable care, should have known," of the harassment. A responsible employee is "any employee who has the authority to take action to redress the harassment, who has the duty to report to appropriate school officials sexual harassment or any other misconduct by students or employees, or an individual who a student could reasonably believe has this authority or responsibility." Even if a student fails to inform the school or use the appropriate grievance procedures to complain of harassment, a school will be in violation of Title IX if it knows or reasonably should know of a hostile environment. A school is in violation of Title IX if it has notice of a hostile environment and fails to take immediate and effective corrective action.

A School's Responsibilities

Once a school has notice of potential sexual harassment of students, the 2001 Guidance explained that "it should take immediate and appropriate steps to investigate or otherwise determine what occurred and take prompt and effective steps reasonably calculated to end any harassment, eliminate a hostile environment if one has been created, and prevent harassment from occurring again." In cases of reports of harassment by a student, parent of an elementary or secondary student, or harassment observed by a responsible employee, regardless of whether the harassed student, or student's parents, decide to file a formal complaint, "the school must promptly investigate to determine what occurred and then take appropriate steps to resolve the situation."

For situations where a school learns of harassment via other means, a variety of factors will determine whether there are reasonable grounds for the school to investigate. If the allegations are confirmed, then a school has a responsibility to respond as described above.

The 2001 Guidance also noted that informal mechanisms may sometimes be used to resolve complaints if the parties agree to do so. However, it made clear that certain informal procedures, such as mediation, are not appropriate in certain cases, such as alleged sexual assault. Finally, the Guidance noted that while "the rights established under Title IX must be interpreted consistent with any federal guaranteed due process rights," schools should nevertheless "ensure that steps to accord due process rights do not restrict or unnecessarily delay the protections provided by Title IX to the complainant."

2011 Dear Colleague Letter Regarding Sexual Violence Between Peers

In 2011, OCR issued a Dear Colleague Letter that supplemented its 2001 Guidance and focused on the obligations under Title IX for schools that focused exclusively on peer-to-peer harassment, rather than harassment by a teacher. The Letter explained that sexual harassment "is unwelcome conduct of a sexual nature," and includes "unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature." Sexual harassment also includes sexual violence, which refers to "physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent due to the victim's use of drugs or alcohol."

Sexual harassment creates a hostile environment "if the conduct is sufficiently serious that it interferes with or limits a student's ability to participate in or benefit from the school's program." When a school "knows or reasonably should know about student-on-student harassment that creates a hostile environment, Title IX requires the school to take immediate action to eliminate the harassment, prevent its recurrence, and address its effects."

The Letter also noted that schools will sometimes have an obligation to respond to incidents of sexual harassment that occur "off school grounds, outside a school's education program or activity." And whether or not the conduct occurred, if a student files a complaint, "the school must process the complaint in accordance with its established procedures." Because students can experience the effects of off-campus sexual harassment at school, "schools should consider the effects of the off-campus conduct when evaluating whether there is a hostile environment on campus."

With respect to investigations of sexual harassment allegations, the Letter stated that the standards for liability in the criminal context are distinct from Title IX, and therefore a criminal investigation into allegations of sexual violence does not relieve a school of its duty to conduct a Title IX investigation. It also instructed schools not to wait until the conclusion of a criminal investigation or proceeding to begin their own investigation under Title IX, and if appropriate, to take immediate steps to protect students while a criminal investigation occurs. Although a school may need to temporarily delay an investigation while a criminal fact-finding occurs by police, once the police have finished their fact-finding, the school must promptly resume and complete its fact-finding for Title IX purposes.

The 2011 Dear Colleague Letter also outlined various elements of a school's grievance procedures that are critical in order to provide "prompt and equitable resolution of sexual harassment complaints," including sexual violence. The Letter noted "in order for a school's grievance procedures to be consistent with Title IX standards, the school must use a preponderance of the evidence standard." This standard contrasted with the 2001 Guidance, which did not impose an evidentiary standard on school investigations, as well as the prior practice of some schools, which used a "clear and convincing" standard. A preponderance of the evidence standard, which requires a showing that a fact or event is more likely than not, is lower than a clear and convincing standard, which requires providing the "ultimate factfinder [with] an abiding conviction that the truth of . . . factual contentions are 'highly probable.'"

The Letter also strongly discouraged schools from allowing the parties in a hearing to personally cross-examine one another. It noted that if a school allows parties to appeal a finding or remedy, it must do so for both parties.

2014 Q&A Document: Investigating Allegations of Sexual Violence

Following requests by schools on how to adequately comply with the 2011 Dear Colleague Letter, ED issued a forty-six-page supplemental Questions and Answers document in 2014 (2014 Q&A) that further explained the responsibilities of schools with regard to allegations of student-on-student sexual violence. It provided more specific instructions to educational institutions regarding their obligations under Title IX. Like the 2011 Dear Colleague Letter, the 2014 Q&A took the form of a guidance document, rather than a legally enforceable legislative rule.

The Q&A made clear that when "a school knows or reasonably should know of possible sexual violence, it must take immediate and appropriate steps to investigate or otherwise determine what occurred." It clarified that, in cases of student-on-student sexual violence, a school violates Title IX when (1) "the alleged conduct is sufficiently serious to limit or deny a student's ability to participate in or benefit from the school's educational program" (creating a hostile environment) and (2) "the school, upon notice, fails to take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects."

The 2014 Q&A also explained that Title IX requires schools, upon notice of an allegation, to protect complainants and ensure their safety through the use of interim steps before an investigation is complete. Among other things, it further specified in detail the requirements of Title IX with respect to the responsibilities of a school's Title IX Coordinator (the employee required by regulation to coordinate a school's compliance with Title IX), the elements expected in a school's written grievance procedures for responding to complaints of sexual violence, and which individuals qualify as responsible employees who are required to report allegations of sexual violence to a school's Title IX Coordinator.

The document also detailed the requirements for schools in conducting investigations into alleged sexual violence. It stressed that while a school is permitted to use its own "student disciplinary procedures" to process complaints of sexual violence, that if a school chooses to do so, the imposition of sanctions against a perpetrator, "without additional remedies, likely will not be sufficient to eliminate the hostile environment and prevent recurrence."

The 2014 Q&A noted that because Title IX investigations will not result in the incarceration of individuals, "the same procedural protections and legal standards are not required" in Title IX investigations as are compelled in criminal proceedings. Even if a criminal investigation of student-on-student sexual violence is ongoing, a school must conduct its own Title IX investigation. Indeed, the conclusion of a criminal investigation without charges "does not affect a school's Title IX obligations."

The document also explained that schools were not required to conduct hearings to assess allegations of sexual violence, but if they did, they could not require the complainant to attend. Further, in the 2014 Q&A, OCR "strongly discourage[d]" schools from allowing parties to personally cross-examine one another because such actions "may be traumatic or intimidating, and may perpetuate a hostile environment." Instead, schools could allow parties to submit questions to a trained third party to ask on their behalf. The third party was advised to screen those questions "and only ask those it deem[ed] appropriate and relevant to the case."

Legal Challenges to University Title IX Procedures

In response to the foregoing guidance from ED, as well as increased oversight from OCR between 2011 and 2016, schools developed a variety of procedures to ensure that their responses to allegations of sexual assault complied with Title IX. Generally speaking, the specific type of procedures for investigating allegations of sexual harassment vary considerably across educational institutions. While Title IX provides ED with some discretion in terms of administrative enforcement of the statute's bar on sex-based discrimination, including the ability to require public and private schools to develop certain procedures for handling complaints (as long as those schools receive federal funds), this discretion is constrained with respect to state actors (including public universities) by due process protections that set a baseline for the procedural protections afforded to the accused.

In the public university context, a number of students subject to disciplinary sanctions for misconduct thus challenged the disciplinary procedures in state and federal courts as unconstitutional. In particular, a number of students faced with disciplinary action by public universities have raised constitutional challenges to the Title IX procedures used to find them responsible for sexual misconduct, arguing that universities violated the Due Process Clause in the handling of their case.

Due Process Clause: Background Principles

The Due Process Clause of the Fourteenth Amendment requires states to observe certain procedures when depriving individuals of life, liberty, or property. In addition to protecting against the deprivation of an individual's physical property, the Constitution guards against the deprivation of certain "property interests" without due process. The property interests protected by the Due Process Clause are not themselves created by the Constitution; instead, those interests arise from an independent source, such as state or federal law. To have a protected property interest in a government-created benefit, one must show a "legitimate claim of entitlement" that originates in "existing rules or understandings that stem from an independent source such as state law." Likewise, when a state deprives an individual of liberty, states must afford due process to the individual. In fact, when a "person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him," due process may be implicated. In these circumstances, courts often require an accompanying state action that alters or removes a legal status to constitute a deprivation of liberty.

Precisely what procedures are constitutionally required before depriving individuals of a protected interest can vary. When deciding what process is due, courts balance three factors enunciated by the Supreme Court in Ma thews v. Eldridge : (1) "the private interest that will be affected by the official action"; (2) the risk of an erroneous deprivation and the probable value of additional procedures; and (3) the interest of the government. In general, the Court has made clear that individuals with a protected interest are entitled to notice of the proposed action and a "meaningful opportunity to be heard" before the state may deprive them of that interest. The Supreme Court has explained, however, that due process is not a "technical conception with a fixed content unrelated to time, place, and circumstances." Instead, the concept is "flexible and calls for such procedural protections as the particular situation demands." In conducting the balancing of factors pursuant to M athews v. Eldridge , the severity of the deprivation is a key factor in determining what procedures are constitutionally required. In general, the stronger the private interest at risk of deprivation, the more formal and exacting procedures will be required by courts.

The only Supreme Court case to focus on procedural due process in the (nonacademic) student discipline context is Goss v. Lopez . In that case, high school students challenged their suspension from school for up to 10 days without a hearing. The Court first ruled that the public school students had a "legitimate entitlement to a public education," which was a property interest protected by due process; and that interest was deprived by the suspension. As to the process required, the Court ruled that, at a minimum, "students facing suspension . . . must be given some kind of notice and some kind of hearing." The Court also clarified that cases of more stringent sanctions, such as suspensions beyond 10 days or expulsions, "may require more formal procedures."

Due Process Rights for Students at Public Universities

Generally speaking, because public universities constitute state actors subject to the Due Process Clause, they must comply with constitutional standards when suspending or expelling students. Private universities, on the other hand, do not. The Supreme Court has assumed, without deciding on the merits, that students of public universities enjoy a "constitutionally protectable property right" in their continued enrollment in an educational institution. A number of federal courts of appeals have ruled that students enrolled in public universities have liberty and/or property interests in their education and that expulsion and certain suspensions can constitute a deprivation of that interest.

As discussed in further detail below, as a baseline matter, federal courts have held that due process requires public schools to provide students with notice of the charges against them, the evidence used to make a determination, and the ability to present their side of the story to an unbiased decisionmaker. Of course, whether a public university has afforded a student due process "is a fact-intensive inquiry and the procedures required to satisfy due process will necessarily vary depending on the particular circumstances of each case."

Due Process Challenges to Procedures Used by Public Universities in Sexual Assault Investigations

While colleges and universities have developed various procedures to comply with OCR's guidance regarding an institution's response to allegations of sexual harassment, a number of individuals subject to these disciplinary processes have challenged some of these procedures in federal court. Several courts have since issued decisions in cases brought by students asserting a due process violation in the context of a Title IX investigation or adjudicatory proceeding.

The following section discusses recent notable judicial rulings that address the constitutionality of disciplinary proceedings in the context of sexual misconduct. The discussion below is organized by the type of claim raised against the public university:

1. the university failed to provide adequate notice of the charges against the student; 2. the university did not permit the accused student to confront and challenge the credibility of witnesses who testified against him; 3. the university allowed biased decisionmakers to oversee the proceedings; and 4. the university employed unfair review processes when rehearing an allegation brought by a complainant.

Importantly, some of the judicial rulings discussed below address whether a student's stated claim is sufficient to survive a motion to dismiss and do not reach conclusive determinations about the evidence sufficient to establish a due process violation.

Claims Alleging Inadequate Notice of the Charges

One type of legal challenge raised by students accused of sexual misconduct is that the public universities failed to adequately notify them of the charges. As an initial matter, reviewing courts have taken the view that there generally will be no due process violation on notice grounds when the school (1) provides a student with timely notice of the actual, full charges against him; and (2) provides the accused student with a meaningful opportunity to prepare for the disciplinary hearing against him.

The absence of such protocols, however, can form the basis of a viable due process claim. For example, at one university, an accused student alleged that he was interviewed by a school staff member assigned to investigate charges of sexual misconduct against him without first being notified of the existence of the sexual misconduct allegation. The student was eventually suspended from the university. A federal district court ruled that, given the severity of the suspension (three years), the lack of notice could amount to a due process violation. The court thus held that the student had stated a claim sufficient to survive a motion to dismiss.

In another case, an accused student alleged that he was not given adequate notice of the scope of charges against him. Rather, the school only notified him that his conduct on a particular day was under review, but expelled him for sexual misconduct that occurred in relation to other incidents and dates. The federal district court ruled that "[b]y conveying a limited scope of focus to plaintiff, defendants prejudiced plaintiff's ability to mount an effective defense, which increased the possibility of an erroneous outcome." Taken together with other procedural issues in the school's investigation and decision, the court concluded that the school had deprived the student of a liberty interest without due process of law.

Similarly, the Sixth Circuit ruled that a student suspended by a university because of suspected sexual assault had sufficiently pleaded a due process violation when the university allegedly did not make available the evidence used in its disciplinary decision against him. The university's Title IX investigator compiled an investigatory report, which was allegedly used by the school's disciplinary hearing panel to adjudicate the student's case. However, the investigator failed to provide the report to the defendant. The court reasoned that the Constitution requires that a school provide the evidence used against a student in the context of significant disciplinary decisions and that a failure to do so constitutes a due process violation.

Claims Relating to Cross-Examination of Witnesses and Exculpatory Evidence

A number of students have brought claims alleging a denial of due process because they were not afforded the opportunity to cross-examine witnesses in school disciplinary hearings. Courts have often rejected these arguments, however, in both sexual harassment proceedings and other disciplinary hearings, noting that the rights of students in disciplinary proceedings are not the same as those of criminal defendants. Case law reflects that courts have been more willing to entertain such claims when students have been denied an opportunity to challenge the credibility of witnesses where a witness's testimony concerns disputed and critical facts.

As a general matter, cross-examination has not been regarded as a necessary feature of due process in the civil context. Even outside the context of sexual harassment allegations, courts have often denied due process challenges to university adjudicatory proceedings where students were not permitted to directly cross-examine witnesses, noting that the Due Process Clause does not guarantee the right to cross-examination in school disciplinary proceedings. This principle has been applied in recent cases alleging due process violations in the sexual harassment context. In one case, students challenged a university's adjudicatory proceedings regarding allegations of sexual assault, where accused students were permitted to submit written questions to a panel chair rather than directly to the complainant. The reviewing district court nonetheless rejected a due process challenge to the proceedings.

Similarly, the Sixth Circuit denied a due process challenge to a university's disciplinary hearing concerning sexual assault allegations where students were not permitted to directly cross-examine their accuser. The students were permitted to submit written questions to the hearing panel, but were not permitted to submit any follow-up questions, and the panel failed to ask all of the questions they submitted. The circuit court reasoned that the proceedings satisfied the "limited" requirement of cross-examination where credibility is at issue, as the "marginal benefit that would accrue to the fact-finding process by allowing follow-up questions … is vastly outweighed by the burden" on the school.

Likewise, the Fifth Circuit rejected a due process challenge to a university's disciplinary proceedings where the challengers argued they were denied the ability to effectively cross-examine witnesses and confront their accuser. In that case, the court noted that the school's decision did not rest on testimonial evidence, but on the videos and a photo taken and distributed by one of the challengers.

Where a credibility determination was critical to the outcome of a proceeding, however, courts have often ruled in favor of due process challenges. For instance, the Sixth Circuit held that a university violated due process when it failed to provide any form of cross-examination in the hearing and the disciplinary decision necessarily rested on a credibility determination. In that case, the university based its decision to suspend a student entirely on the hearsay statement of the complainant, who did not appear at the disciplinary hearing. Importantly, the court noted that the suspended student only requested the additional procedure of posing questions to his accuser through the hearing panel, but he did not ask for the opportunity to directly cross-examine her. The court concluded that in such circumstances, some method must be made available to the adjudicative body to "assess the demeanor of both the accused and his accuser." The court concluded this procedure was necessary to comport with due process when the university's decision rested on a credibility determination.

Likewise, the absence of a live hearing may sometimes form the basis of a viable due process claim. For instance, one federal district court ordered a university to provide an accused student facing the possibility of expulsion with a live hearing in order to comply with due process. In that case, the university's procedures for handling sexual misconduct allegations involved an investigator who would meet separately with the parties, conduct interviews with witnesses, and eventually reach a determination as to culpability without any opportunity for a hearing. The court reasoned that due to "the University's method of private questioning through the investigator, Plaintiff has no way of knowing which questions are actually being asked of Claimant or her response to those questions." Accordingly, the court concluded that the university violated the accused student's right to due process.

Similarly, the Sixth Circuit has ruled that where credibility is at issue, a university "must give the accused student or his agent an opportunity to cross-examine the accuser and adverse witnesses in the presence of a neutral fact-finder." In that case, a university investigator concluded that the evidence supporting a finding of sexual misconduct was not sufficient, but the university's appeals board reversed after reviewing the report because it found the description of events given by the alleged victim and adverse witnesses more persuasive. At no time was the accused student given a live hearing or a chance to cross-examine his accuser or any adverse witnesses. The Sixth Circuit ruled that because the university ultimately had to "choose between competing narratives" in order to resolve the case, due process required a chance to cross-examine his accuser and adverse witnesses before a neutral fact-finder.

Some students have also brought due process claims alleging that they were denied the ability to offer exculpatory evidence on their own behalf. Courts appear to examine such claims on a largely fact-specific basis. For instance, in one suit brought against a university, a student alleged he was denied the opportunity to present physical exculpatory evidence on his own behalf at a sexual assault disciplinary hearing. Specifically, the student claimed he was unable to present text messages at his hearing that he claimed would exonerate him. The district court ruled that this allegation raised concerns that he was denied due process.

Claims Alleging Biased Decisionmakers in Disciplinary Proceedings

Students subject to disciplinary proceedings regarding sexual harassment or assault at institutions of higher education have also brought challenges alleging that a decisionmaker was biased against them. As a threshold matter, courts generally assume that school disciplinary panels are "entitled to a presumption of impartiality, absent a showing of actual bias." A plaintiff must generally allege facts sufficient to overcome this baseline presumption, such as statements by decisionmakers or a pattern of decisionmaking evidencing bias.

For instance, a Fifth Circuit panel rejected a due process claim alleging bias in a university disciplinary hearing concerning sexual assault because the challengers failed to show how the integrity of the proceedings was undermined. In that case, the individual tasked as a victim advocate for the school investigated the charges against the accused and advised the panel members who made the disciplinary decision. The court reasoned that the investigator relied on photo and video evidence to render his findings to the panel and "there is nothing in the record . . . to suggest that a different investigator would have uncovered information diminishing the significance of that graphic evidence to the initial findings." Further, a separate university attorney advised the panel that they were free to draw their own conclusions from the proffered evidence.

Evidence of bias in the consequential behavior or statements of decisionmakers, however, may give rise to a viable due process challenge. For example, the Sixth Circuit recently held that a student sufficiently pleaded a due process claim where he alleged that a university disciplinary hearing for alleged sexual assault was biased against him. In that case, one of the hearing panel members acted as investigator, prosecutor, and judge. The court noted that that fact alone did not give rise to a due process violation. Rather, because that individual also allegedly dominated the panel with remarks intended to reduce the defendant's credibility, and reportedly said during the hearing, "I'll bet you do this [commit sexual assault] all the time," the student had plausibly alleged that the hearing panel member was not impartial and had pre-judged his case.

Courts have also addressed claims alleging a due process violation for bias based on institutional pressures, such as the sexual assault training received by university officials. For example, one district court rejected a due process claim which argued that university staff members were biased because they received sexual assault training that was not balanced with training for protecting the due process rights of accused students. The court reasoned that it was a "laudable goal" for the university to raise awareness of sexual assault and increase sensitivity to problems that victims of sexual violence experience. Plaintiffs' mere belief that the school "ha[d] a practice of railroading students accused of sexual misconduct simply to appease the Department of Education and preserve its federal funding" was unsupported by any evidence.

In contrast, another district court rejected a motion to dismiss a due process claim brought by an expelled student alleging that the investigation and training materials given to the panel who decided his case were biased. The court reasoned that while this was a "he-said/she-said" case, "there seems to have been an assumption under [the] training materials that an assault occurred. As a result, there is a question whether the panel was trained to ignore some of the alleged deficiencies in the investigation and official report the panel considered." Accordingly, the court concluded that there may have been a due process violation because it was "plausible that the scales were tipped" against the accused student.

Claims Alleging Unfair Rehearing or Appeal Processes

Finally, a number of federal district court cases have addressed allegations that a university's disciplinary proceedings violated due process on the basis of unfair review processes for rehearing appeals.

In one district court case, a student was cleared by a hearing panel on a charge of sexual assault, but the university ordered a new hearing, apparently premised only on the school being unable to adequately prove its case in the first hearing. The district court found this to be fundamentally unfair to the student and ruled that the allegations survived the university's motion to dismiss.

Similarly, in another district court case, a suspended student challenged the validity of a school's procedures where he was initially found not responsible for sexual misconduct by a hearing board, but was later determined guilty after the complainant appealed that decision. At the administrative appeal stage, the school did not give the defendant sufficient notice of, or time to respond to, new evidence against him; did not provide him with details of the identity of a woman he was newly accused of assaulting; did not tell him the names of the members of the appeal board; did not give him notice of the appeal board's meeting; and did not permit him to attend that meeting. The appeals board reversed the initial hearing board's determination that the student was not responsible for sexual misconduct, without explanation, and without any oral presentations or live testimony. The reviewing federal district court ruled that the school failed to provide the student with a meaningful hearing.

Likewise, a student brought a claim in federal district court against a university after being expelled for sexual assault even though he had been found not responsible by an initial hearing panel. In that case the school permitted a rehearing after the complainant appealed the initial hearing panel's decision, and subsequently the individual presiding over the appeal expelled the student. The individual presiding over the appeal conducted off-the-record and ex parte meetings with the accuser and failed to deliver the accused student a record of those meetings. According to the reviewing court, by the time the student was permitted to present his defense, the individual overseeing his appeal had pre-judged the case, and expelled the accused student without providing a basis for the decision. The court ruled that these procedural inadequacies, combined with a failure to offer the student notice of the full scope of allegations against him, combined to constitute a due process violation.

ED's Proposed Title IX Regulations Regarding Sexual Harassment

With the foregoing considerations in the background, in September 2017 OCR withdrew the 2011 Dear Colleague Letter and 2014 Questions and Answers document. ED explained that it would begin the rulemaking process to codify a school's responsibilities under Title IX. In the interim, ED stated that it would continue to rely on the 2001 Guidance; it also issued a new Question and Answer document indicating how the department would address sexual misconduct during that time. The document notifies schools that they may, in certain circumstances, resolve complaints through mediation. It also notifies schools that they may choose to allow appeals either by both parties or solely by the party found to have committed sexual misconduct and not the alleged victim.

On November 29, 2018, ED issued a notice of proposed rulemaking in the Federal Register . If adopted, the proposal would significantly alter the responsibilities of schools in responding to allegations of sexual harassment.

Among other things, the proposed regulation would (1) define in narrower terms what conduct qualifies as sexual harassment under Title IX; (2) require "actual notice" of harassment, rather than constructive notice, to trigger a school's Title IX responsibilities; (3) provide that a school's response to allegations of sexual harassment will violate the statute only if amounting to deliberate indifference; and (4) impose new procedural requirements that reflect concern for due process when schools investigate allegations and make determinations of culpability.

Conduct That Constitutes Sexual Harassment Under Title IX

The proposed regulation would first define sexual harassment in the following ways:

an employee conditioning the provision of a benefit, service, or aid on the individual's participation in unwelcome sexual conduct (i.e., quid pro quo); "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" (i.e., hostile environment); or sexual assault (as defined in regulations implementing the Clery Act).

Notably, among the changes to past definitions of sexual harassment issued by ED, the proposal would establish a higher threshold to show a Title IX violation based on hostile environment harassment than that required by ED in the past. As explained in an earlier section of this report, ED's 2001 Guidance described hostile environment harassment as sexually harassing "conduct [that] is sufficiently serious to deny or limit a student's ability to participate in or benefit from the school's program based on sex." The proposed regulations would instead generally adopt the standard for actionable harassment that the Supreme Court's 1999 Davis decision applied in the context of private suits for damages: "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 other words, whereas ED previously defined a hostile environment harassment as harassment that is "sufficiently serious to limit" a student's ability to benefit from or participate in a school's program, the proposed regulations would define a hostile environment as one "that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient's education program or activity."

Adopting "Actual Notice" Requirement

Second, in a departure from past administrative practice, in which ED considered "constructive notice" (i.e., known or should have known) to trigger a school's responsibilities in cases of student-on-student harassment, and did not impose a notice requirement in certain cases of harassment by a teacher or employee, the proposal would establish that a school has a duty to respond to allegations of sexual harassment only when it has "actual knowledge."

Actual knowledge is defined as notice of harassment (or allegation of harassment) to a school's Title IX Coordinator or official with authority to institute corrective measures; the regulations explicitly reject imputing knowledge to a school based on respondeat superior or constructive notice.

Notably, in contrast to past guidance from ED, the mere ability or obligation to report by a school employee does not qualify them as one who possesses authority to institute corrective measures. The proposal explains that this threshold for triggering a school's obligations is intended to align the administrative standard imposed by ED with that articulated by the Supreme Court in Gebser and Davis in the context of private litigation seeking money damages.

Further, the proposed regulations would compel schools to respond only to sexual harassment that occurs within a school's "education program or activity." This contrasts with past ED guidance which provided that schools sometimes will be responsible to respond to harassment that occurs "outside a school's education program or activity." For instance, past ED guidance (since rescinded) required schools to "process all complaints of sexual violence, regardless of where the conduct occurred," in order to determine if the conduct has effects on campus.

Adopting the "Deliberate Indifference" Standard to Evaluate a School's Response

In another departure from prior administrative practice, in which ED judged a school's response under a "reasonableness" standard, the proposed regulations only require a school to respond in a manner that is not "deliberately indifferent." Deliberate indifference is a "response to sexual harassment [that] is clearly unreasonable in light of the known circumstances." Once again, this would tether a school's responsibility to that announced by the Court in Davis in the context of private suits for damages. The proposal explains that, for ED, this standard aptly holds schools accountable while allowing for flexibility in making disciplinary decisions.

The proposal outlines three situations in which a safe harbor is provided to a school from a finding of deliberate indifference. First, when a formal Title IX complaint is made (by a complainant or Title IX Coordinator), the proposed regulations outline a number of grievance procedures (outlined below) that schools must follow. When a school follows these procedures it would not be deliberately indifferent and has not discriminated under Title IX. Second, if a school has actual knowledge of harassment because of multiple complainants, the Title IX Coordinator must file a complaint. Again, compliance with the grievance procedures would negate any inference of deliberate indifference in this situation.

Third, with respect to institutions of higher education, and in situations where there is not a formal complaint, a school would not be deliberately indifferent if it offers and implements supportive measures to the complainant that are aimed to restore or preserve the complainant's access to a school's education program or activity. The school must also at this time notify the complainant in writing of the right to file a formal complaint. As long as an institution of higher education follows these requirements, it would not be deliberately indifferent.

Aside from these three situations, the proposed regulations provide that a school with actual knowledge of sexual harassment in an education program or activity must respond in a manner that is not deliberately indifferent.

The proposal would also allow schools to remove an individual accused of sexual harassment from an educational program or activity on an emergency basis. However, a school must conduct an individualized risk and safety analysis, determine that the removal is justified because of an immediate threat to students or employees, and provide the accused with notice and an opportunity to challenge the decision. The regulations also allow schools to place a nonstudent employee on administrative leave during an investigation.

Protocols for Fact-Finding and Determining Culpability

A significant component of the proposal reflects concern that schools provide accused students with due process protections during the fact-finding process and ultimate determination of culpability. As a threshold matter, schools must investigate allegations received in a formal complaint, but if the alleged conduct would not (if proved) constitute sexual harassment under the regulations, or if it did not occur within a sch ool's program or activity, the complaint must be dismissed. Upon receipt of a formal Title IX complaint regarding sexual harassment, a school must provide written notice to the relevant parties of the allegations, including notice of the available grievance procedures, and notice of the allegations constituting a potential violation, "including sufficient details known at the time and with sufficient time to prepare a response before any initial interview."

Procedures for Handling Formal Complaints

A school's grievance procedures must treat complainants and respondents equitably, which means that a school must both provide remedies for complainants upon a finding of sexual harassment as well as due process protections for a respondent before any sanctions are imposed. The proposal would provide that a school's treatment of a complainant in response to a formal complaint of harassment can constitute discrimination in violation of Title IX; likewise, a school's treatment of a respondent can discriminate on the basis of sex in violation of Title IX.

The procedures must also require an objective evaluation of evidence (both inculpatory and exculpatory) and provide that credibility determinations not be made based on one's status; require that individuals involved in the investigation or decisionmaking process not be biased and receive training on ensuring student safety and providing due process for all parties; include a presumption that respondents are not guilty until proven otherwise; and describe the range of possible sanctions and remedies available, the standard of evidence used, the ability to appeal (if offered) and the range of available supportive measures.

With respect to a school's actual investigation of alleged harassment, the proposed regulations require that a school must:

place the burden of proof and of gathering evidence on the school (rather than either party); allow each party equal opportunity to present witnesses and evidence; not restrict parties from gathering and presenting relevant evidence or from discussing the allegations; permit both parties equally to have their choice of advisor or other person join them during proceedings, although the school may restrict an advisor's participation so long as restrictions apply equally to both parties; provide parties with written notice of the relevant details of hearings and interviews and allow sufficient time to prepare; for institutions of higher education, provide a live hearing where the decisionmaker must allow each party to ask the other party and witnesses all relevant questions (and follow-up questions) including those that challenge one's credibility; cross-examination must be done by the party's advisor; at the request of either party, schools must allow for cross-examination via technology with the parties in separated rooms; decisionmakers must not rely on any party or witness's statement if they do not submit to cross-examination; allow both parties an equal opportunity to review evidence from the investigation that is directly related to the allegations; and develop a report summarizing the relevant evidence and provide this to the parties at least 10 days prior to a hearing (or time where responsibility is determined).

Notably, these requirements depart from past ED guidance by requiring, for institutions of higher education, a quasi-judicial proceeding in the form of a live hearing. Each party may question the other side, and cross-examination must be conducted by a party's advisor.

Determinations of Responsibility

The proposed regulations would also significantly alter the ultimate decisionmaking requirements for schools. For instance, the decisionmaker in a proceeding may not be the investigator or the school's Title IX Coordinator. This would bar the practice of some universities that have used a single investigator to both examine allegations and reach a decision regarding culpability. And in contrast to past guidance from ED, the new regulations permit schools to apply either a preponderance of the evidence standard or a clear and convincing standard. However, schools may apply the former only if they use that same standard for conduct violations other than sexual harassment that carry the same maximum disciplinary penalty. Further, schools must apply the same standard of evidence for complaints against students as it does for employees and faculty.

A schools may, but is not required to, allow appeals of decisions. If it does so, it must allow both parties to appeal. A school may also, at any point before reaching a final determination, facilitate an informal resolution process as long as it obtains the parties' written consent and notifies them of the requirements of the process.

Considerations for Congress

As discussed above, the antidiscrimination mandate of Title IX, enacted in 1972, prohibits discrimination "on the basis of sex" in educational programs in general terms. The statute does not expressly refer to or address sex discrimination in the form of sexual abuse, sexual harassment, or sexual assault. Nor does the statute address when, by whom, or under what circumstances such conduct will amount to a Title IX violation.

Given the statute's silence on these issues, federal courts have largely determined when relief is available for individual victims of sexual abuse or harassment. Indeed, in creating the remedial scheme for a private right of action to address such claims, the Supreme Court sought to "'infer how the [1972] Congress would have addressed the issue'" if there had been an express provision in the statute, an approach that the Court observed "inherently entails a degree of speculation, since it addresses an issue on which Congress has not specifically spoken." Likewise, given the sparse statutory language, federal agencies have issued shifting guidelines at to the responsibilities of educational institutions in complying with Title IX.

As a general matter, Congress enjoys substantial discretion to modify the terms of Title IX to clarify the appropriate standard in private suits for damages as well as in the administrative enforcement context. Congress could, for instance, amend Title IX to define the specific conduct that amounts to a violation of the statute regarding sexual abuse or harassment. In addition, an amendment could also clarify whether liability for harassment should be handled differently in elementary and secondary schools, as opposed to the university context. Likewise, legislation could distinguish between harassment by teachers from that between students.

Further, because the private right of action under Title IX has been judicially implied, rather than expressly codified in statute, Congress could modify the legal standards that apply in a private suit for damages.

Finally, aside from directly amending Title IX, Congress could also direct federal agencies to alter their administrative enforcement of the statute. For example, Congress could direct ED to promulgate regulations that distinguish between various types of sexual harassment or treat harassment differently depending on the context.