Bernstein, Davis, Miltenberg: Schools conducting Title IX investigations, styled as “education processes,” are issuing overly punitive sanctions


On March 11, 2020, in a courtroom in downtown Denver, David M. Ebel rattled off the episodes of harassment an East High School student said she had to endure after reporting that a classmate raped her. Others made “rape jokes.” One called her a “dirty slut.” A friend of the perpetrator’s allegedly told her, “We took a vote and we all agreed that you’ll lose your virginity first.” Ebel, a senior judge on the U.S. Court of Appeals for the 10th Circuit, pressed the attorney for Denver Public Schools about what, exactly, school officials did to address the bullying once they learned about it. “With the counselors, she was talking about being continually harassed. Do you agree that if she was telling the counselors she was continuing to face these problems and was anxious and having psychological problems, that was the same as notifying the school of the problem?” Ebel asked. “No, I do not agree with that,” responded attorney Holly Ortiz. “I think there’s caselaw that says a counselor is not an appropriate person.” What caselaw? Ebel demanded. Ortiz was not able to reference anything off the top of her head, but said there had been court cases discussing the appropriate people in a school to talk to. “The appropriate people told her to go to the counselor!” Ebel exclaimed. “You are correct,” conceded Ortiz. That case of “Jane Doe” against Denver Public Schools is one of nearly 70 lawsuits brought in Colorado’s federal trial court over the last three decades that made a legal claim under Title IX — the law prohibiting discrimination on the basis of sex in any educational program receiving federal funding. One clear beneficiary of Title IX is athletic opportunities for women and girls: While the 1971-1972 school year saw just 294,000 female high school athletes nationwide compared to 3.6 million male athletes, the number of female high school athletes in the 2018-2019 school year had risen to 3.4 million. But Title IX’s sweeping mandate also enables people to claim violations of their rights in a variety of scenarios that implicate, to varying degrees, a person’s sex. A transgender student at the University of Colorado alleged her termination after 300 hours of internship work was the result of her complaints of discrimination. A University of Denver law professor labeled as discrimination the gender-related allegations against him and an academic dean’s statement that she did not “want to see white men teaching anymore.” A high school basketball coach in Basalt claimed unequal treatment when she was terminated for a drunk driving arrest, even though she knew of one other male coach — her husband — who faced no punishment after his own DUI. By far, most Title IX lawsuits fall into one of two categories: victims of assault or harassment, usually female, who claim schools were deliberately indifferent to their reports. More recently, accused students, typically male, argue they were railroaded through investigations with little procedural fairness. “The consequences can affect you throughout the course of your life,” said Igor Raykin, an attorney in the Jane Doe case who represents victims and alleged preparators, also known as claimants and respondents. “I will tell you that defending people who are accused of Title IX violations at the postsecondary level is the hardest thing that I do in my job.” That is slowly changing. While the 10th Circuit’s Jane Doe decision was notable for explaining schools could be liable for Title IX violations for failing to stop the harassment of victims, its ruling in the case of John Doe v. University of Denver last summer was just as beneficial to the accused. The court effectively said of accused male students: If they have evidence that their school is treating females’ complaints about males’ differently than males’ complaints about females, they have a Title IX case. “It was the first time we’ve seen a court seem to understand what we were talking about,” said Michael J. Mirabella, a lawyer on the John Doe case.

Unlike some other laws, Title IX as written is relatively straightforward. “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance,” it reads. While the intent is to provide equitable treatment in education, the law itself is silent about what process is required to achieve that end. In other words, what is a Title IX investigation? Is it an academic inquiry? A criminal proceeding? Something else? “I scratch my head,” said Stuart Bernstein, a New York attorney with Nesenoff & Miltenberg who has been practicing on Title IX cases since 2017. “There’s nothing there about being punitive in nature. It’s now become a punitive situation. Some of these schools have taken it upon themselves to think that they take over and they’re now law enforcement.” “Typically, universities will make statements that this is intended to be an educational process,” added Tara J. Davis, who has brought Title IX cases with Bernstein in Colorado. “At the same time, when you’re handing out sanctions that can derail someone’s entire education — suspension or expulsion and impacting their chance of obtaining admission to graduate school or finding a job — that is punitive.”

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