The #2 Tip for the Title IX Jurisdiction Analysis: Take Cross-Claims Seriously

In another blog post today, I talk about the many takeaways Title IX administrators and team members can glean about Title IX cases from the Johnny Depp/Amber Heard defamation trial. One of those takeaways deserves a closer look; it is the second tip for the Title IX jurisdiction analysis in our blog series addressing some of the most fundamental questions that arise during the Title IX sexual harassment intake process. Here’s what you need to know about cross-claims by respondents.

Top Three Title IX Lessons From the Depp/Heard Defamation Trial

The recent Johnny Depp/Amber Heard trial felt a bit like a black hole; no matter how hard I tried to pull away, the gravity eventually sucked me in. My reasons for wanting to stay away were simple: As an attorney and an expert in Title IX matters, I know how vital impartiality is in deciding these challenging cases. As a working parent and spouse, I knew I would not have the time or energy to watch every hour of testimony and review every piece of evidence. I knew it would be difficult not to base any opinions I might form about the case on my own biases and prejudices under those circumstances, particularly with the onslaught of media opinions on both sides. So best to stay away, I thought, if I can.

I couldn’t. In the end, I read many articles, watched some footage, and even listened to a few podcasts on the trial. I still do not believe I am in a position to make any of the many sweeping claims that the media and advocates on both sides of the aisle have made about the verdict. But the case does provide some important takeaways and practice tips for Title IX administrators. Here are the top three, in my opinion.

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.”

Call-Out and Cancel Culture and Title IX: How Should Educational Institutions Respond?

It’s happening across the country at all levels of education. Students from schools, colleges, and universities are taking to Twitter, Instagram, and other social media and online platforms to call out other students or employees for alleged sexual harassment and abuse. A recent situation involving the University of Utah is just one example. The university suspended Greek activity after two students reported sexual assault and others posted anonymously about their experiences online. A similar account at Atascadero High School in California raised similar issues (pages 4-5) and drew significant attention. Of course, call-outs are not limited to the online sphere; there are plenty of cases in which steps are taken to call out or cancel individuals alleged of sexual harassment in the brick and mortar schoolhouse. There is no doubt that a call-out can put a school in a difficult predicament, especially when social media magnifies the reach. How can—and should—schools respond when an alleged perpetrator believes call-ous or cancel posts cross the line into harassment or bullying?

Title IX Tips Webinar on Avoiding Title IX Pitfalls

Join Thompson & Horton attorneys Jackie Gharapour Wernz, Holly McIntush, and Rebecca Bailey on October 28, 2021, for a free webinar to discuss the pitfalls that can steer your Title IX team off track—and how to avoid them. We will discuss topics such as moving too fast, ignoring off-campus conduct, and being overly deferential to law enforcement. We will help you stop, drop, and Title IX—the right way—to reduce the risk of challenges in OCR and the courts. Register here:

Instas, Snaps, Yik Yaks, and Sex: When Is a Post Title IX Sexual Harassment?

The issue comes up all too frequently—a student shows up to an administrator’s office to report that they found something terrible about them online. Sometimes it’s sexually harassing language and bullying. Or it’s a person sharing photos or videos of their ex online after a breakup. Or, on the other end of the spectrum, perhaps it’s an account on which people can anonymously “expose” accused perpetrators of sexual harassment, including sexual violence and assault—and the alleged perpetrators report that it’s just not true. How do educational leaders distinguish between sexual harassment and more benign activity on Instagram, Snapchat, (the newly reemerging) Yik Yak, and the like?