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

March 21, 2022

in: In the News

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.

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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

February 15, 2022

in: In the News, Litigation

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.

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OCR Blog Post Stands By May 2022 Date for New Rules

October 8, 2021

in: 2020 Regulations, In the News, OCR Blogs

On October 8, 2021, the U.S. Department of Education issued a blog post, “Our Commitment to Education Environments Free from Sex-Based Harassment, Including Sexual Violence.” The blog post comes on the heels of meetings between the administration and at least one advocacy group asking the administration to move more quickly on new Title IX regulations. OCR declined, standing by its plan to issue new proposed regulations in May 2022.

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Appeal in VLRC v. Cardona Raising More Questions About Suppressing Statements of Missing Witnesses in Title IX Hearings

October 1, 2021

in: 2020 Regulations, Hearings/Decisions, In the News, Presidential Transition

A little over a month ago, the U.S. Department of Education’s Office for Civil Rights (OCR) said it would no longer enforce a controversial portion of the 2020 Title IX rules. The “suppression clause” is a ban on reliance on statements by a party or witness who does not submit to cross-examination in higher education Title IX sexual harassment hearings. The 2020 Title IX regulations require that higher education decision-makers ignore all statements by any party or witness who refuses to answer even one relevant question during the required hearing for Title IX sexual harassment complaints. The rules leave room for K-12 decision-makers to decide whether to reject all statements by a party or witness who refuses to answer written cross-examination questions used in elementary and secondary school Title IX processes. After a Massachusetts Federal trial court struck down…

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