During the months of November and December 2022, there was a lot of activity regarding Title IX and other laws affecting students and their education. Below is a brief synopsis of proposed legislation and recent court decisions.
Proposed Legislative Fix in the Wake of Cummings v. Premier Keller Rehab, PLLC
Earlier this month Senators Durbin and Murray introduced the Clarifying Civil Rights Act of 2022 specifying the available damages, including damages for emotional distress, under the Spending Clause Legislation like Title IX, Section 1557 of the Affordable Care Act, and the Rehabilitation Act. The availability of emotional distress damages under these laws were called into question or outright banned by the Supreme Court’s decision in Cummings v. Premier Rehab Keller PLLC on April 28, 2022.
If enacted, the proposed legislation would make it easier for students and educational employees to seek emotional distress damages, which encompass damages for the humiliation and indignity caused by discrimination. Moreover, the proposed legislation would apply retroactively to open cases without a final decision by a court. However, the legislation is only in its infancy and there is no telling if or when it will become law. In the interim, if you think you or your minor child has a Title IX claim, you should consult with an experienced Title IX lawyer in your state.
In November 2022, a Maryland federal district court denied a motion to dismiss an educational redlining class action case against Walden University. The suit alleged that Walden University targeted Black and female students for its Doctor of Business Administration program while misrepresenting costs and credit requirements as part of an alleged predatory scheme, which purportedly cost the proposed class $28.5 million in excess tuition. The case was brought under Title VI of the Civil Rights Act and the Equal Credit Opportunity Act.
Student Athlete Discipline Created Triable Issue Under Title IX
In November 2022, the Second Circuit handed down a decision in Radwan v. Manuel, et. al., 55 F.4th 2022 (2d Cir. 2022) holding that the University of Connecticut’s removal of a student athlete’s scholarship created a triable issue under Title IX and thus vacated summary judgment. During a nationally televised soccer match, Radwan, who was a female scholarship soccer athlete, flipped the bird to the camera following the game. Radwan was suspended from playing in the championship game and eventually lost her athletic scholarship due to the incident. She made a number of arguments, including procedural due process and the First Amendment, which were rejected by both the Second Circuit and the district court below. However, because she presented evidence at summary judgment that similarly situated male athletes did not lose their scholarships following similar misconduct, the Second Circuit vacated the summary judgment order, which resulted in the dismissal of her case, holding that Radwan presented triable issue of fact as to whether she was treated to more severe punishment because of her gender in violation of Title IX.
Discovery Rule Applies to Title IX
In Snyder-Hill v. Ohio State University, 48 F.4th 686 (6th Cir. 2022), the Sixth Circuit held that the discovery rule applied to the statute of limitations in Title IX cases where schools allegedly engaged in a coverup that prevented the plaintiffs from being able to reasonably discover the school’s role in enabling their abuse. The Sixth Circuit went on to hold that the statute of limitations did not begin to run until the plaintiffs discovered the school’s role in the alleged cover-up of the abuse. Thus, at the motion to dismiss stage, the Sixth Circuit held that the plaintiffs plausibly pled that they could not have known that they were injured by Ohio State until 2018 when they discovered Ohio State’s role in the purported cover up.
Recently, the U.S. Supreme Court declined to hear two cases regarding a university’s and a school district’s potential liability for sexual harassment under Title IX of the Education Amendments of 1972. Both cases involved notice of a complaint of harassment or assault and whether the schools acted with deliberate indifference in their responses to those complaints—two elements of a prima facie case of sexual harassment under Title IX.
In Wamer v. Univ. of Toledo, 27 F.4th 461 (6th Cir. 2022), cert. denied, No. 22-123, 2022 WL 17085184 (U.S. Nov. 21, 2022), the University of Toledo argued in a 12(b)(6) motion to dismiss the student’s lawsuit that it could not be liable for the harassment of a student by a professor because it did not learn of the harassment until after it occurred. However, the student argued that the University was deliberately indifferent to her initial complaint of sexual harassment and that the University’s initial response in and of itself created a hostile educational environment for the student as she feared coming to campus and running into the professor—so much so that she changed her classes to online and started taking classes outside her major. Months later, a faculty member made another complaint regarding the same incident to the University’s Title IX office. Following the faculty member’s complaint, an investigation ensued resulting in the recommendation of terminating the offending professor. The district court granted the University’s motion to dismiss holding that the student’s “subjective dissatisfaction with the investigation’s outcome does not plausibly support an inference that UT’s response…left her exposed to a risk of further sexual harassment.” The Sixth Circuit reversed and remanded holding that the student plausibly pled that the University acted with deliberate indifference and that there was a fact issue as to whether the University’s decision to close the first investigation was reasonable as the student plausibly pled that an objectively reasonable fear of further harassment caused her to take steps to avoid the harassment, depriving her of educational opportunities.
In Doe v. Fairfax Cnty. Sch. Bd., 1 F.4th 257 (4th Cir. 2021), cert. denied, No. 21-968, 2022 WL 17085176 (U.S. Nov. 21, 2022), a high school student was sexually assaulted on a school bus during a school sponsored band trip. Chaperones, including a vice principal, had knowledge of the incident but did nothing for days until they returned to the school. Upon learning of the assault, the school district determined that what happened on the bus could not be sexual assault even though the student did not consent. The case went to trial resulting in a jury verdict for the school district based on the school district’s apparent lack of actual knowledge of the assault. The jury did not reach the question of whether the school district acted with deliberate indifference. It was appealed to the Fourth Circuit Court of Appeals and the Fourth Circuit remanded the case for a new trial holding that the school district had actual knowledge of the assault “regardless of whether the school officials subjectively understood the report to allege sexual harassment or whether they believed sexual harassment actually occurred” and that there was no record evidence to “support the jury’s conclusion that the School Board lacked actual notice” of the sexual assault.
STUDENTS/PARENTS: Know your school’s Title IX policies and procedures and have an advocate present during each phase of the internal proceedings. The advocate does not need to be a lawyer, but can be. It is always encouraged to have an attorney experienced in sexual harassment and Title IX discrimination representation in these proceedings regardless of whether you are a complainant or respondent, because the results of internal Title IX proceedings can potentially affect future education and employment.
Sass Law Firm advocates for the rights of students and employees in education. If you have questions about Title IX, we encourage you to contact Sass Law Firm as potential claims are subject to strict time deadlines.