Despite the US Department of Education’s direction that the new Title IX regulations on sexual harassment will not be enforced retroactively, at least one federal court has disagreed. In Doe v. Rensselaer Polytechnic Institute, the Federal District Court of the Northern District of New York halted RPI’s scheduled Title IX hearing regarding a complaint that “Doe” had sexually assaulted “Roe” in part because the School was using its policies from before the new Title IX regulations were implemented, which did not involve steps such as allowing cross-examination of witnesses (a requirement for college level Title IX investigations in the new regulations), rather than its new policies implemented after the regulations went into effect. The Court suggested that the college should use the new procedures even though the alleged conduct had occurred prior to the effective date of the regulations.
The case involved the tale of two college students who filed competing Title IX complaints against each other following what started out as a consensual relationship. RPI investigated both complaints under its old policy and determined that there was sufficient evidence to find that Doe may have been responsible for sexually assaulting Roe, but that Doe had failed to meet his burden of proving that Roe had sexual assaulted him. The incident occurred prior to the effective date of the new Title IX regulations on sexual harassment. The regulations, however, went into effect while the investigation was pending. RPI amended its policies for new complaints moving forward, but informed Doe that his hearing would be held pursuant to the old policy, which afforded Doe much less in the way of due process.
Doe filed a complaint in federal court claiming that RPI’s handling of the complaints amounted to sex discrimination against him in violation of Title IX. First, he claimed that RPI discriminated against him on the basis of sex by electing to hold his hearing under the 2018 policy instead of the 2020 policy. Second, he claimed that RPI engaged in sex discrimination when it dismissed his complaint against Roe but allowed her claim against him regarding the same encounter to move forward.
The court issued a preliminary injunction prohibiting RPI from conducting a hearing during the pendency of the litigation. The Court seemed concerned that RPI’s decision not to use the new 2020 procedures to hear the plaintiff’s case created two parallel procedures (one for conduct that occurred prior to the August 14, 2020 Title IX regulation implementation date and one for conduct that occurred after August 14, 2020) “solely to ensure that at least some respondents would not have access to new rules designed to provide due process protections such as the right to cross-examination [a right available at the college level, but not the K-12 level] that have long been considered essential in other contexts.” The Court also found that it was an adverse action to afford the plaintiff a lesser standard of due process protection than provided in the new policies.
In granting the preliminary injunction, the Court rejected the Office of Civil Right’s own guidance that the regulations do not apply retroactively. Rather, the Court seemed to find that refusing to apply the new regulations, that include significantly more due process protections for those accused of sexual harassment, in and of itself constituted sex discrimination against the accused. Thus, the Court enjoined RPI from conducting a disciplinary hearing and/or otherwise imposing discipline or sanctions against the plaintiff related to Roe’s complaint of sexual assault until the resolution of the federal district court case.
Although the case is from New York and thus is not binding on schools in Connecticut, its reasoning might still be found to be persuasive. Schools should think about whether to process older Title IX sexual harassment complaints under the new Title IX policies.
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