TITLE IX CASE LAW REVIEW
Presented by
W. Scott Lewis, J.D.
Saundra K. Schuster, J.D.
Brett A. Sokolow, J.D.
.
www.atixa.org
www.ncherm.org
MEET YOUR PRESENTERS
Brett A. Sokolow, J.D. is a
higher education attorney
who specializes in high-risk
campus health and safety
issues. He is recognized as a
national leader on campus
sexual violence prevention,
response and remediation.
He is legal counsel to 35
colleges, and is the founder
and managing partner of
NCHERM and Executive
Director of ATIXA.
© 2012 ATIXA all rights reserved
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W. Scott Lewis, J.D. is a
partner with NCHERM.
He has over 20 years of
experience as a student
affairs administrator, faculty
member, and consultant in
higher education. He is a
frequent keynote and
plenary speaker.
© 2011 ATIXA all rights reserved
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Saundra K. “Saunie”
Schuster, J.D. is a Partner with
NCHERM. She was previously
General Counsel for Sinclair
College and Senior Assistant
Attorney General for the State
of Ohio. Prior to practicing
law she was Associate Dean
of Students at Ohio State
University. She is an author
and consultant focusing on
higher education legal issues.
© 2012 ATIXA all rights reserved
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Jackson v. Birmingham Board of Education
544 U.S. 167 (2005)
© 2012 NCHERM all rights reserved
Jackson v. Birmingham
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A deeply divided U.S. Supreme Court decided
this landmark case in 2005
This case involved a claim of retaliation for filing
complaints of sex discrimination under Title IX
The Court held that individuals who bring
complaints about sex discrimination under
Title IX can seek damages for retaliation for
whistle-blowing
Roderick Jackson, a high school teacher and coach,
complained to school officials about the school’s
inequitable treatment of the girls’ basketball team
© 2012 NCHERM all rights reserved
Jackson v. Birmingham
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He received negative evaluations for the next year
and was removed from his coaching position
He sued the school charging that they violated Title
IX by retaliating against him for protesting the
discrimination against the girls’ team
The U.S. Court of Appeals for the 11th Circuit backed
up the District Court’s decision that Title IX does not
provide individuals the right to sue for retaliation
© 2012 NCHERM all rights reserved
Jackson v. Birmingham
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
The Supreme Court overturned the lower courts, stating:
 Private parties can seek damages for intentional sex
discrimination under Title IX
 Retaliation against a person who complains about
sex discrimination is in itself a form of “intentional
discrimination,” even if the plaintiff is not an
“actual” victim of gender-based discrimination.
 It is discrimination based on gender because it is “an
intentional response to the nature of the complaint:
an allegation of sex discrimination”
© 2012 NCHERM all rights reserved
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Lisa Simpson, Anne Gilmore v.
University of Colorado Boulder, et al.
U.S. Ct. of Appeals, 10th Circuit, September 6, 2007
© 2012 NCHERM all rights reserved
Lisa Simpson, Anne Gilmore v. University of
Colorado Boulder, et al.
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Students Lisa Simpson and Anne Gilmore alleged they
were sexually assaulted at a party attended by
University football players and recruits.
They stated that a football player and another student
(female), who tutored for the athletic department,
devised a plan for a football recruiting event to include
sex with intoxicated female students.
Simpson and Gilmore were sexually assaulted after a
number of football recruits showed up at Simpson’s
apartment during a party.
© 2012 NCHERM all rights reserved
Lisa Simpson; Anne Gilmore v. University of
Colorado Boulder, et al.
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Plaintiffs alleged the CU athletic department was
aware of (and supported) the incidents of alcohol
consumption and sexual assault by football players and
recruits, and that the department created a known risk
of sexual harassment, assault and discrimination against
female students and other women as a result of their
deliberate indifference.
The plaintiffs filed their lawsuit under Title IX claims.
The District Ct. found for the university and dismissed the
lawsuit.
© 2012 NCHERM all rights reserved
Lisa Simpson, Anne Gilmore v. University of
Colorado Boulder, et al.
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The District Court determined that, considered as a
whole, all the information presented in support of the
Title IX charges did not constitute adequate notice
under Title IX.
Absent sufficient evidence that the University had notice
of the relevant risks, and the University acted with
deliberate indifference to those risks, the court could not
conclude that the University’s deliberate indifference
caused the plaintiffs to suffer the severe sexual
harassment they suffered.
© 2012 NCHERM all rights reserved
Lisa Simpson, Anne Gilmore v. University of
Colorado Boulder, et al.
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Simpson and Gilmore appealed. Upon appeal, the
summary judgment granted to the university by the
Court was reversed.
The reversal was based on information obtained from
studies of the University’s lack of supervision of football
recruits and their behavior while on campus.
The University settled the case before rehearing for a
total of $2.85 million. Of that amount Simpson
received $2.5 million and Gilmore $350,000.
© 2012 NCHERM all rights reserved
Lisa Simpson, Anne Gilmore v. University of
Colorado Boulder, et al.
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Significance of the Case: Under the Title IX “deliberate
indifference” standard an educational institution that
receives federal funding is liable in damages only when its
deliberate indifference effectively caused the
discrimination.
An institution will be deemed deliberately indifferent to acts
of harassment only when the institution’s response to the
harassment is “clearly unreasonable in light of the known
circumstances”.
As in this case when the institution knows of acts of
harassment, is aware of the risk and fails to exercise means
of control available to it to control or eliminate the risk.
© 2012 NCHERM all rights reserved
Lisa Simpson, Anne Gilmore v. University of
Colorado Boulder, et al.
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In rejecting the summary judgment, the Court went to
great lengths to discuss the nature of recruiting as a
“school program” and thus the need for oversight by
athletic department employees.
This case tells us that Title IX claims are alive and well in
these circumstances, and that athletic departments must
provide oversight to recruiting activities that foster
hostile environments.
© 2012 NCHERM all rights reserved
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Tiffany Williams v. Board of Regents of
University of Georgia
U.S. Ct. of Appeals, 11th Circuit, February 9, 2007
© 2012 NCHERM all rights reserved
Tiffany Williams v. Board of Regents of
University of Georgia
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Tiffany Williams, was invited to the dorm room of a male
student (Tony Cole) university basketball player with whom
she had an intimate relationship. They engaged in
consensual sex.
She was unaware, however, another basketball player was
hiding in the closet. The first male went to the bathroom and
closed the door, the second male emerged, naked, from the
closet and sexually assaulted Ms. Williams.
While she was being sexually assaulted the first male called
other teammates and one came over and also sexually
assaulted her.
© 2012 NCHERM all rights reserved
Tiffany Williams v. Board of Regents of
University of Georgia
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Williams reported the rape to the university, and
contacted the police. She also filed criminal charges
against all three males.
They were charged under the university’s Code of
Conduct and were suspended from the team.
The campus disciplinary panel did not convene to
render a decision for a year, and then decided not to
sanction the three men, two of whom had already left
the school.
© 2012 NCHERM all rights reserved
Tiffany Williams v. Board of Regents of
University of Georgia
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The prosecutor dismissed the criminal charges against two of
the men and acquitted the third.
Ms. Williams filed a $25 million lawsuit against the
university, alleging that the university violated Title IX,
stating that it recruited the player (Cole), even though it
knew he had disciplinary and criminal problems at other
colleges, specifically involving harassment of women.
The district court dismissed Ms. Williams’ claims, but the
Court of Appeals upheld her claims.
The Ct. found that the university had sufficient notice and
demonstrated deliberate indifference to the safety of Ms.
Williams. The University settled the case for a six figure
undisclosed amount.
© 2012 NCHERM all rights reserved
Tiffany Williams v. Board of Regents of
University of Georgia
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In allowing the Title IX claim to go forward, the Ct.
of Appeals stated that the university’s knowledge of
Tony Cole’s past record was a salient factor in its
analysis of the facts.
Critical elements for the university to consider:

Knowledge of recruiting practices (official and
unofficial), special admits, recruit’s backgrounds, and
available resources to assist in training and prevention
of incidents
© 2012 NCHERM all rights reserved
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Melissa Jennings and Debbie Keller vs. The
University of North Carolina at Chapel Hill, et al
482 F.3d 686 (2007)
© 2012 NCHERM all rights reserved
Jennings v. University of N. Carolina
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The Facts:
 Three female soccer players were sexually harassed by
their head coach with repeated sexual comments and
inquiries into players’ sexual activities
 Jennings reported the events to university legal counsel
and was told to “work it out” with the coach on her own
 She and her family brought their complaint to the
Chancellor’s Assistant and the AD
 She was subsequently dismissed from the team
© 2012 NCHERM all rights reserved
Jennings v. University of N. Carolina
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The district court:
 Dismissed Jennings Title IX and § 1983 claims
 Two other plaintiffs settled their cases: one for undisclosed
6 figures and the other for $70,000,
Appealed to Circuit Court of Appeals (3 judge panel)
 Upheld the dismissal
Appealed to full court (En Banc)
 Overturned the Ct. of Appeals panel.
University settled case before damages ruling by the court:
Jennings received $375K+fees, university agreed to conduct
an annual review of policy and annual training for the
coaches
© 2012 NCHERM all rights reserved
Jennings v. University of N. Carolina
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This case examines the power relationship between
coach and player
It determined the speech was not protected
It determined that the coach’s “locker room banter”
was severe and pervasive
The university demonstrated“deliberate indifference”
based on the way it responded
© 2012 NCHERM all rights reserved
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Fitzgerald v. Barnstable School
Committee
U.S. Supreme Court, January 21, 2009
© 2012 NCHERM all rights reserved
Fitzgerald v. Barnstable School Committee
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This case represents a legal challenge brought against a school
district by parents of a kindergarten child who had been subjected
to student-on-student sexual harassment
The Facts:
 A kindergarten female was harassed by a fifth grade boy on
the school bus. The parents reported to the school
 The reports were investigated by the Principal and reported to
the superintendent with no finding of harassment
The parents challenged that the school did not respond
adequately, under Title IX requirements, to their daughter’s
allegations of sexual harassment by an older student.
The parents also brought a §1983 claim against the school
superintendent and the school committee
© 2012 NCHERM all rights reserved
Fitzgerald v. Barnstable School Committee
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The district court upheld the motion for summary judgment in favor of
the school, and this decision was upheld by the 1st Circuit Court of
Appeals.
The Supreme Court ruled on the question of whether Title IX provides
the exclusive remedy for addressing gender discrimination in the school,
or if a §1983 action could be brought as a means of enforcing
federal civil rights.
The Supreme Court held that Title IX is not the exclusive mechanism for
addressing gender discrimination, nor a substitute for a §1983 action
The Court stated that Title IX provides for both an administrative
remedy (OCR) and civil damages actions against an institution, but not
school officials, teachers or other individuals.
© 2012 NCHERM all rights reserved
Fitzgerald v. Barnstable School Committee
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However, §1983:
 Provides the means to enforce the rights of an
aggrieved person against school officials, teachers or
other individuals in their personal capacity
 It creates the path to hold individuals personally
liable, provides for award of damages, injunctive
relief and attorney fees.
 It follows that the courts apply school-focused Title IX
case law similarly to colleges and universities.
© 2012 NCHERM all rights reserved
Doe v. University of the Pacific
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Facts & Holding:
In May of 2008, Jane Doe alleged 3 members of the
men’s basketball team sexually assaulted her.
On May 12 plaintiff’s friends made the institution aware
of the allegations.
The coach immediately called the plaintiff – who was
home on break – to inquire about her well-being.
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© 2012 ATIXA all rights reserved
Doe v. University of the Pacific
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Facts & Holding:
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The next day, the coach immediately notified the
athletic director who then notified the vice president for
student affairs, the director of public safety and the
director student conduct.
On May 14, the university issued a campus wide Clery
warning and reported the incident to the Stockton
police.
© 2012 ATIXA all rights reserved
Doe v. University of the Pacific
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Facts & Holding:
The university re-contacted the victim, informed her and her parents
of her options and support mechanisms at the institution.
They further informed her that, due to the seriousness of the
allegations, they intended to convene a judicial review board.
Plaintiff opted not to press criminal charges but indicated she felt
“reassured” by the university’s pursuit of the campus conduct
process.
On June 16, the hearing was held. Plaintiff was permitted to
provide her testimony from a building across campus, but she did not
answer any questions asked by the respondents.
© 2012 ATIXA all rights reserved
Doe v. University of the Pacific
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Facts & Holding:
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The conclusion of the hearing was that all 3 students
had committed certain sexual related violations.
2 students were suspended for 1 and 2 semesters,
respectively and the 3rd student was dismissed.
All 3 appealed the sanctions, and the plaintiff was
allowed to submit a statement as well. The appeal was
denied.
© 2012 ATIXA all rights reserved
Doe v. University of the Pacific
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Facts & Holding:
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Both basketball coaches determined that the men's and
women's teams were not to interact socially for a
cooling off period.
This was designed to assist the plaintiff as well as
prevent any further potential conflicts between the
teams.
© 2012 ATIXA all rights reserved
Doe v. University of the Pacific
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Facts & Holding:
Plaintiff filed a Title IX action filed against the University
claiming that it:
1.
2.
3.
Did not prevent the assault (by failing to investigate a prior
assault properly);
Demonstrated "deliberate indifference" to sexual harassment
in failing to respond appropriately to her complaint, and
Retaliated against her by instituting a policy limiting
unsupervised social interaction between the men's and
women's basketball teams.
The court found for the university and granted its motion
for summary judgment. The 9th Circuit upheld the district
court in favor of the university.

© 2012 ATIXA all rights reserved
Doe v. University of the Pacific
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Significance of the Case:
This case is extremely significant for student conduct
professionals and high-level student affairs
administrators.
It appears that the institution followed its policies
and allowed a panel that was trained to make a
determination that ultimately resulted in the
separation – albeit not as long as the plaintiff wanted
– of all 3 parties.
© 2012 ATIXA all rights reserved
Doe v. University of the Pacific,
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Significance of the Case:
 Emphasizes the importance of engaging in a prompt
and thorough investigation while at the same time
balancing the needs of all the students and treating the
accused in an appropriate and caring manner.
 In short, it appears that the institution did everything
according to its policies.
 That being said, this outcome did not prevent a very
public and media driven response that cost the
institution time, energy, and money (and arguably
reputation).
© 2012 ATIXA allrights reserved
Doe v. University of the Pacific
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The university’s motion to recover attorney’s fees was
denied.
The university prevailed via summary judgment when no
issue of fact existed to prove deliberate indifference
Court stated: “Complainants do not get to determine
sanctions”
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It is “reasonable” that different sanctions can be reached
Discussion regarding standards of proof: Clear and
Convincing vs. Preponderance of the Evidence
© 2012 ATIXA all rights reserved
Doe v. University of the Pacific
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Retaliation:
 “In
her third cause of action, plaintiff contended the
University violated Title IX by instituting the policy
precluding unsupervised social interaction between the
men's and women's basketball teams.
 Plaintiff stated that the university instituted the policy in
order to retaliate against her for making her complaint
against the respondent students.
 The court rejected this claim based on the university’s
legitimate nondiscriminatory reason for the action.
© 2012 ATIXA all rights reserved
Doe v. University of the South
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A male student was dismissed from the University of
the South (Sewanee) for violating the institution’s
sexual misconduct policy.
The accused student brought claims in federal court
against the university under Title IX, contract, and tort.
The student claimed that the accusation against him
was unsupported by the evidence, and the university’s
negligence in crafting and implementing its conduct
process cost him his reputation and career prospects.
© 2012 ATIXA all rights reserved
Doe v. University of the South
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A federal judge threw out the Title IX claim brought by the male
student
But a 9 member federal jury sided with the student unanimously,
finding the university to be negligent by failing to construct and
carry out its process with reasonable care.
The jury said that the institution engaged in the following actions:
They allowed a charge of sexual misconduct to proceed without
adequate evidence
 They gave the accused student little more than 24 hours to prepare for
a hearing
 The investigator failed to interview key witnesses, (including the
complainant and the accused) refused to disclose exculpatory
evidence, and was not adequately trained to conduct the process
fairly.
© 2012
ATIXA all rights reserved

Doe v. University of the South
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The student was awarded $26,000 to compensate for
actual damages
It is notable that a negligence standard was applied
for the first time to the student conduct process at a
private college, as opposed to a contract claim.
The university was found not to have acted
reasonably in balancing both student’s rights
It appears that the professional judgment exercised
by student conduct professionals will continue to be
scrutinized in ways that extend beyond contractual or
deliberate indifference analysis.
© 2012 ATIXA all rights reserved
Cases on the Horizon
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McGrath v. Dominican College of Blauvelt
Hobbs v. Gonzaga University
Doe v. Blackburn College
Emeldi v. The University of Oregon
OCR decisions on Title IX at Princeton, Harvard,
UVa, Yale, etc.
© 2012 ATIXA all rights reserved
THANK YOU!
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Questions?
Brett@atixa.org
Saundra@atixa.org
Scott@atixa.org
© 2012 ATIXA all rights reserved