This academic year, a trio of decisions by federal courts in Massachusetts have provided guidance to administrators laboring to comply with Title IX and its sexual harassment regulations. As we head into the summer and schools consider revising their policies or practices to address discrimination and harassment, it is important to understand how the courts have limited the ways that institutions can operate when it comes to Title IX.<\/p>\n
In Doe v. Stonehill College,<\/em> which issued in December 2022, the First Circuit ruled in a Title IX matter, that the respondent\u2019s allegation that Stonehill failed to follow its own procedures related to reviewing evidence and notifying him of witness interviews, as well as Stonehill\u2019s failure to conduct a complete, thorough and impartial investigation, gave rise to a plausible claim for breach of contract. The court agreed with the respondent that investigators failed adequately to probe the complainant\u2019s account, or to assess the plausibility of respondent\u2019s account. The court took issue with what it characterized as the investigators\u2019 failure to \u201cweigh[] competing evidence\u201d or to explain sufficiently their rationale for credibility determinations and findings. The court also noted that administrators who were tasked with conducting an \u201cindependent review\u201d of the investigators\u2019 findings provided only brief, conclusory communications related to that review, and permitted the inference that the administrators did not make an independent judgment, but instead blindly adopted the investigators\u2019 findings.<\/p>\n In addition, on breach of contract claims based on Stonehill\u2019s policies, the court also allowed a breach of contract claim to proceed based on Massachusetts law that school disciplinary proceedings \u2013 even for private institutions \u2013 must be conducted with basic fairness, and noted that the contours of \u201cbasic fairness\u201d have not been clearly defined by precedent. The court wrote, \u201cWhatever else the requirement of \u2018basic fairness\u2019 means, we cannot reconcile plausible allegations of prejudicial investigative flaws with Stonehill\u2019s commitment to provide a \u2018fair\u2019 process.\u201d<\/p>\n In Doe v. Brandeis University<\/em>, a district of Massachusetts decision that issued in February 2023, the court denied summary judgment on a breach of contract claim based on Brandeis\u2019 sexual misconduct policy. The court allowed the student\u2019s claim to proceed based on the theory that Brandeis\u2019 Title IX Coordinator violated its policy by guiding and communicating with the investigator throughout the investigation, editing both the investigative report and the decision of a disciplinary panel before they were sent to the parties, and by communicating with administrators tasked with determining sanctions. The court held that because the policy did not explicitly state that the Title IX Coordinator would involve herself in the procedures in this matter, there was a triable issue of fact as to whether she was permitted to do so. The court also noted that the policy did not preclude the Title IX Coordinator from engaging in the type of oversight of the Title IX process that occurred in this matter, and that it was possible that such activities were within the scope of a Title IX Coordinator\u2019s duties. Citing the Stonehill<\/em> case, the court in Brandeis<\/em> also allowed the case to proceed under the theory of a breach of basic fairness.<\/p>\n In Doe v. Town of North Andover<\/em>, a district of Massachusetts judge ruled that damages for emotional distress are not available for Title IX claims. This follows the U.S. Supreme Court\u2019s decision in Cummings v. Premier Rehab Keller, P.L.L.C.<\/em>, which held that emotional distress damages are not available under the Rehabilitation Act or Affordable Care Act, both of which, like Title IX, are statutes enacted pursuant to the Constitution\u2019s Spending Clause. Because emotional distress damages generally are not available for breach of contract claims either, this means that most Title IX plaintiffs will not be able to recover such damages, although they can recover other monetary damages.<\/p>\n Taken together, these decisions present a challenge for Title IX administrators. On the one hand, the Stonehill<\/em> decision makes clear that courts in the First Circuit will not hesitate to scrutinize a school\u2019s investigation and disciplinary process and will expect schools to \u201cshow their work\u201d by documenting credibility analyses and detailed findings. At the same time, the Court in Brandeis<\/em> cautions against a Title IX Coordinator involving themselves in the investigations and disciplinary proceedings that the regulations task them with overseeing \u2013 and may appear to limit the ability of a Title IX Coordinator to supervise an internal investigator, which can be problematic given the reporting structure of many Title IX offices. The small silver lining from the North Andover<\/em> case is that when schools are liable for failing to meet these complex and competing requirements, the damages that a party can collect are limited.<\/p>\n Bowditch attorneys can assist you in reviewing your policies to make sure that they conform to your practices and allow the Title IX Coordinator to engage in full oversight of the Title IX process.<\/p>\n <\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" This academic year, a trio of decisions by federal courts in Massachusetts have provided guidance to administrators laboring to comply with Title IX and its sexual harassment regulations. As we head into the summer and schools consider revising their policies or practices to address discrimination and harassment, it is important…<\/p>\n","protected":false},"author":1,"featured_media":2189,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":true,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"_links_to":"","_links_to_target":""},"categories":[15,466],"tags":[559,115,560,561,558],"class_list":["post-2188","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-sexual-misconduct","category-title-ix","tag-breach-of-contract","tag-sexual-harassment","tag-sexual-misconduct-policy","tag-title-ix-coordinator","tag-title-ix-policies"],"acf":[],"yoast_head":"\nClient Tip<\/h2>\n