OCR Investigation Reveals "Concerns and Violations" At Washington State University

This month the Department of Education's Office for Civil Rights entered into a compliance agreement with Washington State University to resolve "concerns and violations" that were revealed by the agency's investigation into the university's handling of sexual harassment complaints.

One of the allegations against the university was its systematic failure to promptly respond to complaints as Title IX requires. So the agency reviewed over 900 files of sexual harassment cases the university responded to between 2010 and 2016. 72 of them were sexual assault matters. The average pendency of these matters from the time the complaint was was received by the university to the time of its final decision was 159 days. More than three-quarters of time, it took more than 100 days, and nearly a third were open for 200 days. While expressing concern about the university's systemic pattern of lethargic resolution, it singled out four instances where it was comfortable concluding that the delay (of 125, 139, 177, and 218 days respectively) constituted a violation of Title IX's prompt resolution requirement, owing to the university's insufficient explanation for the delays and the probability that delay contributed to hostile environment for the complainant. This aspect of OCR's findings indicate that while the agency has revoked the prior administration's interpretation of prompt resolution of sexual harassment complaints as 60 day time frame under usual circumstances, the requirement for "promptness" -- albeit more vague now -- is still good law about which OCR remains concerned.  

The agency also expressed "concerns" that the university's policies that govern the disciplinary process for sexual misconduct provide equal rights to the respondent to present evidence and receive information about the proceeding. Specifically, the agency was concerned about procedural requirements under which:

• complainant is solicited for names of potential witnesses, though the policy does not say to do the same for respondent
• complainant is given information that retaliation is prohibited under its policy, but the policy does not say to also give respondent this information
• complainant is given the opportunity to provide input about the appropriate resolution path --i.e., whether the university uses an informal method of resolution instead of the formal process --  but the policy does not say to get input from the respondent.  

I agree that the first two bullet points are aspects of "equitable" procedures as the regulations require. The third one could be problematic depending on what the university does with the input it receives from the respondent. Clearly the selection of formal disciplinary procedures can't be subject to the respondent's consent; that would be inequitable to the complainant.  But such a result is not a necessary consequence of permitting the respondent to give "input" about this choice.

The university has agreed to address the violations and concerns by amending its policies and improving training. It will also address the resource deficiency that caused or contributed to the promptness violations.  It also agreed to send an apology letter to two of the complainants affected by delay.  (I've ever noticed apology requirements in resolution agreements before, so that struck me as interesting.!)

A Roundup of Disciplined-Student Cases

In three separate cases, courts issued rulings this week that address claims by students disciplined for sexual assault that the university's process for administering discipline was biased and/or procedurally unfair. A summary of each is below.

Doe v. Ohio State University.  In this case, Ohio State expelled a male student for having sex with a female student who could not consent due to incapacitation by alcohol. He sued the university and several university officials in federal court. This week, the court granted the university's motion to dismiss the constitutional and Title IX claims against it because state entities like Ohio State enjoy sovereign immunity from suit in federal court.  The sovereign immunity doctrine has an exception for cases where the plaintiff seeks prospective relief, such as reinstatement, but because the plaintiff did not request reinstatement, that exception does not apply.

Additionally, the university officials moved to dismiss the claims against them in their personal capacities on the grounds of qualified immunity.  Under this doctrine, state officials are only liable for violations of constitutional rights that are "clearly established." The court determined the most of the plaintiff's allegations about the deficiency of the process constituted a violation of clear constitutional precedent.  However, the court did not dismiss plaintiff's allegations that the university officials were trained in a biased manner, since if proven, such claims would implicate a clear constitutional right to have one's case decided by an impartial adjudicator.  However, the court cautiously acknowledged that there's a difference between being biased against sexual assault in general, and being predisposed to finding a respondent responsible for sexual assault in a given case. The plaintiff can't satisfy the latter with evidence of the former. However, the court read the plaintiff's allegations as plausible enough to warrant discovery.  The officials would have an opportunity to seek dismissal on summary judgment and have the court determine if the plaintiff has meet that burden of producing evidence in support of the allegations.

Doe v. University of Cincinnati.  Here, a male student was suspended for one year for having sex with a female student without her affirmative consent. He then sued the university in federal court and moved for an injunction that would prevent the suspension from taking effect. The court granted the injunction after agreeing that the plaintiff was likely to prevail on the merits of his argument that the complainant's absence from the hearing deprived him of an opportunity to cross-examine her. While not endorsing a blanket right to cross examination in all student disciplinary hearings, the court did acknowledge the importance of that right in cases like this one where the hearing panel's assessment of parties' credibility was the key factor in its determination. The court also did not insist that when a right to cross examination exists, it must be conducted in person at the hearing. Instead, what made the accuser's absence from the hearing a due process violation in this case was the fact that the respondent did not know in advance that she would be not be present, and thus, was unable to take advantage of other means of cross-examination, such as the submission of written questions that the hearing panel could have posed to complainant in some other way.

Arishi v. Washington State University.  This case stems from Washington State University's decision to expel a doctoral student after he was arrested for child molestation and statutory rape. The student sued in state court to challenge the university's disciplinary procedure as a violation the state statute that imposes procedural requirements on adjudications conducted by state agencies. He argued that he was not allowed a "full hearing" required by Washington's administrative procedure act, which would have provided him the opportunity to cross examine witnesses, present evidence, and be represented by counsel.  The court agreed that state universities are subject to the law and that none of the exceptions warranting an abbreviated hearing apply. The court has ordered the plaintiff's case remanded to Washington State, which must conduct a full hearing if they wish to expel him. According to this news article about the case, the court's decision will mean changes in the disciplinary process not just at Washington State, but 26 other state colleges and universities whose procedures do not constitute full hearings under the state administrative procedures act.

More Undue Credit to Title IX

Yesterday Kris commented that the media seem to frequently give Title IX too much credit or too little. In another example of the former, consider this nostalgic piece in Washington State University's Daily Evergreen (via U-Wire) about the historic case Blair v. Washington State University. In 1982 female athletes and coaches sued WSU alleging gross inequities in participation opportunities, equipment and funding. The article gives the misimpression that the victory plaintiffs achieved in this case was a Title IX victory. The 1987 Washington Supreme Court decision makes clear that the case was decided entirely as a violation of the state Equal Rights Amendment and the state Law Against Discrimination. Title IX is not even mentioned in the Supreme Court's decision.

And for good reason. In 1984, the U.S. Supreme Court in Grove City College v. Bell construed the nondiscrimination mandate of Title IX to only apply to university programs receiving federal funds, which essentially exempted all athletic departments from compliance obligations. In 1987 Congress restored Title IX's application university-wide, but for much of the 1980s, while Grove City made its way up the federal courts, and for the period of time before the Civil Rights Restoration Act took effect, Title IX was off the table to female athletes seeking redress for discrimination.

In the end, the injunction the Blair plaintiffs won against WSU on state law grounds motivated the school to become the first to satisfy Title IX's proportionality prong. In that regard, the case was a state ERA decision but also a Title IX success story.

So does it matter that Title IX is mistakenly credited as the legal grounds for the plaintiffs' victory? Perhaps. Many people believe that Title IX has been around for 30+ years, women are as interested in sports as they are ever going to be, so the statute has done its job and can be retired. So its important to speak accurately about Title IX's early history because the truth is that Title IX has only effectively offered protection to female athletes for a relatively short time.