New sexual misconduct guidelines from Department of Education

No, that is not what the court said. The court said the case could proceed, not that she was entitled to damages. Plaintiff would have had to establish at the trial court level that the school district did in fact delay unreasonably after it had obtained actual knowledge of the abuse.

I agree that it was likely settled before trial. They were initially seeking $500,000. I wonder how much they got.

I suspect that the Title IX claim was driven by a desire to get the case out of the state courts, where a tort claim would have had to proceed. Perhaps there was some unfavorable precedent in the relevant state court decisions or there was a consent to suit issue.

Those are allegations, not facts.

If they could establish what was alleged, then a jury could find the school district liable. Right? Because the other side was saying that even if they could establish what was alleged, the school district still wouldn’t be liable, and that’s why the suit should have been thrown out.

Yes yes, but for the purposes of this kind of case, the allegations are assumed to be true. The case was thrown out in lower court because these facts were judged not enough for the school to be liable. The Supreme Court was deciding whether these facts WERE enough for the school to be liable.

You keep saying this but it’s not true. SCOTUS held in Davis that, assuming that plaintiff’s allegations were true, then plaintiff could bring a suit in Federal court under Title IX, not that plaintiff would win one (defendant liable).

SCOTUS actually made no judgment whether that particular set of allegations would have been sufficient, even if true, to establish a compensable harm under Title IX. See here from the ruling:

The best way to think about the ruling is that a procedural hurdle had been cleared. Now plaintiff could get into court to try to prove the case on the merits. SCOTUS did not opine at all on whether those allegations even if true were actually sufficient to establish liability.

This is a side issue to the topic, but I hope that helps clear up the confusion.

The best way to think of the ruling is the Supreme Court is saying that if the harasser did what he is alleged to have done, and if the school acted (or failed to act) in the way they have alleged to have acted, then the petitioner is entitled to relief. That’s the point of Supreme Court cases.

But for the fact that when the case is remanded back to the District Court and a trial proceeds the school district can challenge the allegations and prove them embellished or otherwise false. It’s the old there are two sides to every story and somewhere in the middle the truth probably lies.

After an excellent back and forth with @SatchelSF, I now have a different understanding of this sentence from the cited article about the new Department of Education guidelines:

The question I had was what “denies a person access” means. I initially interpreted it to mean that the student was driven entirely out of the program. But that can’t be right; the quote comes from Davis v. Monroe, where the Supreme Court ruled that a middle school student who was allegedly harassed, but who had not been driven out of her school, could sue her school for damages under Title IX. So what exactly does “access” mean, then? Well, we don’t know. We have to see what the guidelines actually say. Hopefully the guidelines have examples.

Supposedly when the guidelines come out, they’ll first be released for public comments. Anyone can comment, by the way.

I swore I would never get involved in another of these threads, but this is not exactly correct. What the Court is saying is that if all of the allegations in the complaint are viewed most favorably to the Plaintiff, a path exists which could end in liability. It is not saying that liability will automatically attach. Maybe it seems like a distinction without a difference, but in cases like this one where motivation and context matter it can be significant.

I interpreted it as not that they are entitled to relief, but that they are entitled to legally pursue relief but maybe I’m incorrect also.

I agree with Ohiodad51. They are not entitled to relief, they are entitled to ‘a day in court,’ to have their case heard (not necessarily in a court, but by a hearing officer, by arbitration).

Using super technical legal jargon, assume that one of your kids comes to you and says they should be allowed to stay out late on Saturday. Maybe there are some circumstances where you would relax the rule (going to a certain friend’s house, going to a play/game that might end late), and others where you wouldn’t (going to another friend’s house, party, etc). So instead of saying no upfront, you say tell me why. It’s like that. The Plaintiff is now in a position of being able to persuade the court on the merits.

Yes, yes, I agree with what both @Ohiodad51 and @twoinanddone say. My concern about Davis v. Monroe, and about this new guidelines, is what constitutes a student on student sexual harassment offense that a school would have liability for under Title IX. Before Davis v. Monroe, nothing. Under the new guidelines, what?

Not to beat a horse that I have flogged over lo these many threads, but this is precisely why the public rule making process is the right way to handle things with so many moving parts. If there is a question about the impact of Davis on a school’s potential liability left by the proposed regs, then the comment period is the time to flesh it out and get it addressed. I am confident many legal departments at many universities will be thinking about these types of issues over the coming weeks/months.

FWIW, I don’t really see the potential problem that you do. I am fairly sure there are a number of cases which discuss “deliberate indifference to harassment that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school”. In fact that last bit is block copied from one of the 1500 decisions citing Davis.

Also, “access” and “equal access” are legally the same, since if you had unequal access then you would ipso facto have a claim for discrimination. Make sense?

Actually that is what they did before the current proposed regs were put together. They listened to students of both sexes and both sides accusers and accused, talked to college administrators and talked to people in the trenches. It is one of rare times that many people who are not fans of the current administration are pleased by the progress so far. Now there is a open comment period. It is the right process to take. There is plenty of legal opinions now also and I am sure after investigating 150+ Colleges there is plenty of precedent for what goes right and what goes wrong.

There is? The guidelines have been released? Where are they? Link please.

I would think since they floated a version through the NYT the notice and comment time period will begin very soon. You can set up a google alert if you are interested in commenting when it opens.

If you had unequal access because you were in a protected class, then you’d have an ipso facto claim for discrimination. But if you had unequal access because you could still go to the lab but you had to run a gauntlet of harassment to get your lab work done and everyone else did not, you wouldn’t be in a protected class of one, would you?

Under the guidelines as they were, running that gauntlet (literally or figuratvely) would not be access or equal access. This wasn’t about the physical ability to walk into the lab or a classroom, to a meal or walk campus. Rather, what hindered you (frightened you, blocked you, discouraged you, etc,) from freely pursing your education (and in the college environment as a whole.)

I’m not sure how the notion of a “protected class” applies. This is very much about the individual complainant and particulars, first.

Being a member of a protected class changes the burden the government/some state actor must meet in order to justify taking an action. I don’t think it is relevant here either.

I am not sure I understand what you mean here. I think maybe you are mixing the standards that apply to imposing liability on a state actor under Title IX (the focus in Davis) and the protections afforded individuals because of Title IX.