Campus Counsel | Monthly Roundup Of Legal Issues In Higher Education: July 2017 Edition Summaries

August 2, 2017

Trump Administration’s Department of Education Contemplating Changes to Enforcement of Title IX as Applied to Sexual Misconduct

By Brian Mullin

Recent statements by Department of Education officials suggest new guidance is forthcoming with respect to enforcement of Title IX as applied to sexual misconduct on college campuses. During a stakeholders meeting last week, Education Secretary Betsy DeVos criticized the effectiveness of the current Title IX enforcement guidelines and expressed the desire to implement changes “quickly.” These comments came on the heels of a New York Times interview in which high-ranking Office of Civil Rights official Candice Jackson derisively remarked that “90 percent” of sexual assault accusations on college campuses stemmed from after-the-fact regret about drunken sexual encounters.
While the Department has refused to provide specifics about any future changes, many suspect that DeVos may attempt to roll back the Obama Administration’s 2011 “Dear Colleague Letter” guidance.  One particular point of contention is the Letter’s mandate that schools use a “preponderance of the evidence” standard in Title IX sexual misconduct investigations-prior to the Letter, many schools used the higher “clear and convincing evidence” standard, which required a finding of high probability or reasonable certainty that sexual misconduct occurred.  The recent comments by DeVos and Jackson suggest they may attempt to abandon the preponderance standard requirement. We can be sure, however, that such change will not occur without a fight.

Client Tip:
Institutions should keep an eye out for new Title IX guidance from the Department of Education.

Educational Institutions Affiliated with Religious Organizations May Be Liable Under Massachusetts Law For Hiring or Firing Based on Religious Principles

By Brian Mullin

Massachusetts statute G. L. c. 151B prohibits, among other things, employers from discriminating on the basis of race, color, religious creed, national origin, ancestry, sex, gender identity, or sexual orientation.  There are two statutory provisions, however, which limit the scope of the statute as it applies to religiously-affiliated educational institutions taking action based on religious principles with respect to matters of employment.  The first provision, found in G. L. c. 151B §1(5), exempts from the definition of “employer” educational institutions  that are “operated supervised or controlled by or in connection with a religious organization, and which limit[] membership, enrollment, admission, or participation to members of that religious organization.”  The second provision, found in G. L. c. 151B §4(18), exempts from the statute “any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious organization,” and does not include any language indicating that it only applies to institutions which limit their membership to members of their own religious denomination.
The tension between these two statutory provisions was addressed by the Massachusetts Superior Court in the case of Barrett v. Fontbonne Academy, 33 Mass. L. Rptr. 287 (2015).   In that case, the plaintiff Barrett alleged that his already-accepted employment offer was wrongfully rescinded in violation of G. L. c. 151B after Fontbonne Academy, a Catholic preparatory school, discovered that he was homosexual and married to a man.   Fontbonne Academy argued, in its defense, that it was exempt from liability under G. L. c. 151B §4(18).
The court ruled in favor of Barrett and held that Fontbonne Academy was not exempt from G. L. c. 151B.  In doing so, the court concluded that the limiting language in §1(5) modified the more broad language in s.4(18), reasoning that such a construction was more consistent with the purpose of the statute.  Because Fontbonne Academy admitted non-Catholic students and did not require its employees to be Catholic (with the exception of its administration and theology faculty), it did not, according to the court, “limit its membership, enrollment, admission, or participation” to members of the Catholic faith within the meaning of §1(5), and therefore was found to be not exempt from G. L. c. 151B.
The decision in Barrett v. Fontbonne Academy was only a trial court order, and as such is not a binding interpretation of Massachusetts law.  Nevertheless, any future appellate court considering this issue will surely be informed, and quite possibly persuaded, by the Barrett decision.  For now, the state of the law remains unsettled.
Client Tip: Institutions should consult an attorney before taking action with respect to hiring or firing based on religious principles.

Massachusetts Senate Moves to Preserve and Expand Sexual Violence Prevention and Response Requirements for Public and Private Colleges and Universities

By Brian Mullin

A bill that would preserve and expand federal requirements for College and University programs to prevent and respond to sexual violence on campus is moving through the Massachusetts State Senate. The bill, SB 2081, is, in part, an effort to solidify Title IX regulations and guidance concerning sexual misconduct issued by the U.S. Department of Education under the Obama Administration. The bill also incorporates many recommendations from a report on campus safety and violence prevention commissioned by the state Board of Higher Education. The bill has bipartisan support, is expected to be approved by the Senate and move to the House of Representatives in the upcoming legislative session.
The bill maintains requirements for Institutions to develop, distribute and implement policies, procedures and educational programs directed to preventing and responding to issues of dating violence, domestic violence, sexual assault and stalking. The bill preserves the requirement for Institutions to apply the preponderance of the evidence standard in the adjudication of sexual misconduct claims. The bill also includes several additional requirements including, among others, that Institutions develop required policies and procedures with input from state and local law enforcement agencies, local health care facilities, community-based rape crisis centers and domestic violence programs.

Client Tip: Institutions in Massachusetts should continue to comply with exiting federal requirements and begin to prepare for the likelihood that the bill will become law.