The #1 Tip for the Title IX Jurisdiction Analysis: Don’t Jump the Title IX Gun

I’ve been running around the country for the past couple of months, speaking at many spring conferences for school law. From NSBA’s Council of School Attorneys to LRP’s National Institute to the American Association of School Personnel Administrators DEI Summit, I’ve been thrilled to talk with many administrators and school lawyers about Title IX, First Amendment, and DEI related. I’ve also been doing tons of training (including our incredibly well-received Advanced Title IX Training and “Train the Trainer,” which we are offering again this Friday, both virtually and in person in Houston, Texas).

The most frequent Title IX questions I have been asked during this whirlwind tour relate to Title IX jurisdiction. When evaluating the jurisdiction of sex-based misconduct reports, when does the requirement to notify the alleged victim of the Title IX process kick in? What happens if there is jurisdiction over a report, but the alleged victim does not want to file a formal complaint? When can a school investigate under a non-Title IX policy or procedure, such as the student code of conduct?

These are some of the most fundamental questions that arise during the Title IX intake process, which is the period after a report of sex-based misconduct is made but before the Title IX Coordinator or their designee determines that Title IX applies. Although these cases, like most things in the Title IX world, are very fact-specific, I can offer a top 5 do’s and don’ts you should keep in mind. I will provide the dos and don’ts in this blog series. We will discuss the first don’t today: “Don’t jump the Title IX gun.”

He Said, She Said, They Said: Cracking Credibility in Student Sexual Misconduct Cases

When investigating reports of sexual misconduct by and against students, credibility can often be an essential question for the investigator, decision-maker, and others on the school, college, or university team. Understanding the factors to consider, knowing the types of questions to ask and techniques to use to get the information you need to consider, and avoiding the perception of bias, conflict of interest, and prejudgment are just a few of the land mines that education leaders face when a credibility issue looms in an investigation. Although the issue has taken front stage recently with respect to Title IX sexual harassment grievances, cracking credibility is just as essential in other sexual misconduct cases involving students, including those in schools that don’t receive federal funds.

This webinar from Thompson & Horton addresses some of the many credibility concerns that can arise during the sexual misconduct grievance process.

When Can a Non-Student State a Title IX Claim? Sixth Circuit Case Provides Helpful Reminder

When does a non-student have a valid claim against an educational institution under Title IX? A recent case from the Sixth Circuit Court of Appeals, Arocho v. Ohio University, reiterates the factors that courts may consider. These issues are not settled law across the country, so educational institutions should work with legal counsel closely when a complaint is received from a non-student. The Arocho case is a good reminder that a non-student’s mere presence on campus may not be sufficient to attach Title IX liability to the educational institution, even for a school-sponsored event or activity.

Arocho involved a high school student who was sexually assaulted by an Ohio University employee while participating in a career day at the University through her high school. The main issue before the Sixth Circuit was whether the non-student sufficiently alleged discrimination under an “education program or activity” of Ohio University, as necessary to have a valid Title IX claim in court.

Texas AG Says Gender Reassignment is Reportable Child Abuse. Should Schools Agree?

By Jackie Gharapour Wernz, Melissa Mihalick and Kathryn Long

On February 18, 2022, Texas Attorney General Ken Paxton issued an opinion asserting that certain procedures and treatments for transgender children are child abuse under the Texas Family Code. The opinion, which does not carry the force of law, directed members of the public and licensed professionals to report procedures such as puberty blockers, hormone therapy, and gender reassignment surgery on children to the Texas Department of Family and Protective Services. The news has led to understandable questions from Texas educators about whether they, as mandated reporters, are required to report families that provide transgender youth with treatment based on the advice of their physician and the prevailing standards of care.

The confusion is particularly acute because reporting a transgender child’s family to DFPS for elective services while not reporting similarly-situated cisgender students could be discrimination under Title IX. The U.S. Department of Education’s Office for Civil Rights would also likely find that a school that reports transgender students to DFPS—especially in tandem with actions required by other state laws, such as Texas’s ban on children playing sports with a gender that does not match their gender assigned at birth—can create a “hostile environment” for transgender students under Title IX. Because of federal supremacy, schools cannot defend against an OCR complaint or federal lawsuit under Title IX by arguing that they were following state law.

Because of the substantial confusion and risk related to this issue, schools should work closely with legal counsel to develop a plan of action to handle mandated reporting and other issues involving LGBTQ+ students in schools. Training of mandatory reporters is essential. We offer more background, details, and analysis of the Texas AG Opinion below.

Thompson & Horton’s 2022 Title IX Guidebook

We have learned a lot over the past year-and-a-half since the effective date of the 2020 Title IX regulations. What if you could take all of that information and put it in a checklist with all the forms you might need to address a Title IX complaint?

Thompson & Horton’s 2022 Title IX Guidebook does just that. Its Title IX Coordinator, Informal Resolution Facilitator, Investigator, Decision-Maker, and Appellate Decision-Maker Checklist will allow even a novice to walk step-by-step through the Title IX process. Each checklist includes links to new and improved Title IX forms that Title IX team members can customize for their Title IX casework.

Contact titleix@thlaw.com for information on ordering the Guidebook for your institution.

Ninth Circuit: University Not Liable for Assault in Athlete’s Off-Campus Apartment Despite Disciplinary Authority Over Student and Prior Reports of On-Campus Conduct

With Thompson & Horton Counsel Matthew Reed

In a recent decision, the Ninth Circuit Court of Appeals affirmed the dismissal of a Title IX lawsuit against the University of Arizona by a female student, Mackenzie Brown, alleging assault by a student-athlete, Orlando Bradford, at his off-campus apartment. It reached the decision even though Bradford, a football player, had to have his coaches’ approval to live off-campus and used a University scholarship to pay his rent. Because the University lacked substantial control over the context of the alleged conduct, it was also irrelevant that the University knew of a previous on-campus assault by Bradford but failed to discipline him. Brown is a welcome acknowledgment for colleges and universities that an educational institution must have substantial control over the specific context of alleged harassment, even if they have previously failed to exercise disciplinary control over the harasser. It provides valuable contours to the “substantial control” analysis used by courts and the U.S. Department of Education’s Office for Civil Rights under the 2020 Title IX regulations.