When it issued its final Title IX regulations in May 2020, the U.S. Department of Education’s Office for Civil Rights said in the preamble to the rules that it would not enforce the final rules retroactively. It repeated that position in a blog post on August 5, 2020, saying unequivocally that “the Rule governs how schools must respond to sexual harassment that allegedly occurs on or after August 14, 2020.” Schools, colleges, and universities rightfully understood that they should use their old Title IX procedures to address conduct occurring before August 14, 2020.

A recent court decision from the Northern District of New York has called that understanding of the new regulations into serious doubt. The court refused to grant OCR any real deference on whether educational institutions should use new Title IX procedures for pre-August 14 conduct. There are some critical features of the case that schools, colleges, and universities can rely on to support using old Title IX procedures for conduct that occurred before the effective date of the new rules. But there is no question that the decision increases the risk of legal challenges by respondents against their schools for using old procedures in ongoing or new cases. Educational institutions should work with legal counsel to address whether the court’s decision necessitates changes to the processing of existing or future complaints under Title IX.

The Decision

Doe v. Rensselaer Polytechnic Institute involved a request for a temporary restraining order by a male student of RPI, John Doe, who a female student of RPI, Jane Roe, alleged sexually assaulted her on January 23, 2020. In June 2020, Doe filed a cross-complaint against Roe. Both parties claimed, among other things, that they initially engaged in consensual sex, at some point became too intoxicated to consent, and that the other party pressured or forced them to engage in sexual conduct.

On August 4, 2020, RPI concluded by a preponderance of the evidence that it was more likely than not that Doe violated the school’s 2018 sexual misconduct policy by sexually assaulting Jane Roe. RPI also dismissed John Doe’s counter-claim, finding that he presented no evidence that he consumed alcohol involuntarily and that he admitted to engaging in consensual sex with Jane Roe initially on the night in question.

Doe timely appealed RPI’s determination on August 11, 2020, requesting a hearing regarding his claim’s dismissal. RPI denied the appeal on August 25, 2020, claiming that Doe had failed to demonstrate any error in the denial that would merit a hearing.

Doe also asked RPI to use its new 2020 Title IX procedures for the rest of the investigation and his disciplinary hearing. The 2020 sexual misconduct policy would give Roe significantly greater due process protections than the 2018 sexual misconduct policy, as required by the new Title IX regulations. RPI declined, citing OCR’s statements in the preamble to the rules and its blog that the new rules were not retroactive. Doe filed a complaint in the New York trial court seeking to enjoin RPI from moving forward with its process against him using the 2018 sexual misconduct policy and claiming that using that policy when it could use the 2020 policy was sex discrimination against him.

The Court’s Ruling on Retroactivity

The court found that Doe established a likelihood of success on the merits justifying the issuance of a temporary restraining order despite OCR’s comments about retroactivity. The court found that RPI “could easily have implemented the 2020 policy for Doe’s hearing because it must implement that policy for all future Title IX complaints.” Instead, it chose to “maintain two parallel procedures solely to ensure that at least some respondents would not have access to new rules designed to provide due process protections.” Citing the “inevitable administrative headaches” that would result from using multiple procedures for Title IX cases, the court found sufficient evidence that the school was using “an irregular adjudicative process” by choosing to use two processes when it didn’t have to. Similarly, the court found “that a school’s conscious and voluntary choice to afford a plaintiff, over his objection, a lesser standard of due process protections when that school has in place a process which affords greater protections, qualifies as an adverse action” based on sex.

RPI defended its choice based on OCR’s statements that the new Title IX regulations are not retroactive. The court made three points in rebuffing that argument:

  1. What did OCR even mean by “retroactivity,” anyway? The court said that OCR’s statements about retroactivity in the preamble to the regulations were not clear. On the one hand, the comments could mean that schools should not apply new Title IX procedures to new reports or complaints of misconduct occurring before August 14, 2020, as RPI claimed. However, it could also mean that schools were not required to reopen old cases in which it had used its old procedures. Even if the preamble was due any deference by the court—which the court did not concede—it is not clear that the preamble limits the application of new Title IX procedures to investigations or hearings that in effect on or after August 14, 2020.
  2. It turns out blogs may be even weaker than informal guidance. Although OCR was much clearer in its blog post than in the preamble to the rules, the court did not find that a blog post was due any deference. Despite having thrown heavy stones at the Obama administration for the use of informal guidance to make Title IX law, the Trump administration’s OCR nonetheless moved into a glasshouse by using an even more informal tool to make its positions known. The court gave the current OCR a taste of its own medicine in calling the legitimacy of its informal guidance into question.
  3. If you want cover from OCR, you’d better actually do what they say. Perhaps most importantly, RPI did not do what OCR said it could in the OCR blog. OCR said schools need not apply the new Title IX policies and procedures to sexual harassment incidents that occurred before August 14, 2020. However, RPI’s said it would not use its new procedures for sexual harassment reports that occurred before August 14, 2020. The court cited this failure to follow OCR’s interpretation of retroactivity as evidence that, regardless of what OCR said in its blog post, RPI had a choice as to which procedure to use in Doe’s case. An institution that follows OCR’s interpretation may not be subject to the same scrutiny, at least on this point.

A Refresher on Gender Discrimination Against Male Respondents

The court’s decision also includes an interesting analysis of when treatment of male students is gender discrimination in Title IX complaints. In this case, both the female and male students filed a complaint arguing that the other party pressured or forced them to engage in sexual activity against their will while intoxicated. RPI rejected the male student’s complaint because he “failed to prove that he did not voluntarily consume alcohol and did not initiate sexual contact with Roe.” It did not reject the female student’s complaint for the same reason.

The court pointed out that a party’s inability due to consent due to excess intoxication does not require a showing of involuntary consumption of alcohol. Moreover, a person can consent initially but withdraw consent at any time. The fact that RPI relied on these points to throw out a male student’s complaint while not doing the same to an almost identical complaint by a female student was “bizarre,” was contrary to RPI’s own policies and procedures, and provided “a powerful inference of sex discrimination.”

Although the reach of this one decision is limited to the jurisdiction of the Northern District of New York, schools, colleges, and universities across the country are already feeling the ripple effects. Educational institutions should work with legal counsel to consider changes to policies and procedures to mitigate the risk of challenges like the one raised in this complaint regarding retroactivity, at least as much as is possible in this ever-changing Title IX environment.