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.

Misgendering Myths, Facts, and Mayhem: What You Should Know About the Kiel, Wisconsin Title IX Case

Yesterday was the first day of Lesbian, Gay, Bisexual, Transgender, and Queer (LGBTQ) Pride Month. At Thompson & Horton, we will recognize Pride Month alongside the 50th Anniversary of Title IX with free weekly webinars throughout June (Thursdays at 1 p.m. starting today!) and blog posts focused on Title IX, including LGBTQ+ issues facing schools, colleges, and universities.

Perhaps the hottest story in the Title IX/LGBTQ+ world right now involves Kiel Area School District. The Wisconsin school district has received multiple bomb threats and tremendous media attention and scrutiny regarding complaints against three eighth-grade students alleged to have created a hostile environment for a peer by refusing to use the student’s preferred pronouns. As with many things “Title IX,” untangling the truth from the fiction can be a challenge, particularly when there is so much pandemonium around the case. Here’s what you need to know about this case and how it might impact your school, college, or university.

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.

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.

OCR Blog Post Stands By May 2022 Date for New Rules

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.