Judge halts RPI sexual misconduct hearing, says Title IX overhaul applies retroactively | #Education



TROY — A federal judge has blocked Rensselaer Polytechnic Institute from proceeding with a campus sexual misconduct hearing, ruling that the Troy college must decide the case using Title IX procedures enacted over the summer by U.S. Department of Education Secretary Betsy Devos.

U.S. District Judge David N. Hurd did not take a position on the legality of implementing Devos’ rules to misconduct cases that preceded them but he found the male student in the case raised valid questions about whether he was discriminated against under RPI’s old rules for the code of student conduct.

Colleges and universities, which had an Aug. 14 deadline to implement new federal guidelines, sought clarity on whether the new laws would apply to past or ongoing Title IX matters involving incidents that occurred before the deadline.

A blog post from the Department of Education’s Office of Civil Rights published on Aug. 13 indicated that colleges would not be sanctioned if they did not apply the new rules retroactively, but the RPI case reopens the question for New York educational institutions as they scramble to comply with the new laws, Title IX experts say.

The RPI case involves two students, John Doe and Jane Roe, who met on Tinder in November 2019 and had a consensual sexual relationship that according to Roe, turned sour when she discovered she was being surreptitiously filmed by Doe while she was getting dressed, the court filings state.

The circumstances of a subsequent sexual encounter that occurred in Roe’s apartment on Jan. 23, 2020 are in dispute. Roe claims Doe choked her in a non-sexual context and forced her to have anal sex while Doe claims he was too intoxicated to consent and that he was pressured into the encounter, according to documents filed in the U.S. District Court for the Northern District of New York.

Soon after the incident, Roe’s resident advisor informed RPI of the incident and the school informed Doe it had initiated a Title IX investigation based on Roe’s account. In June, Doe’s filed his own claim, stating Roe stayed sober and plied him with alcohol while pressuring him to perform both acts, the court papers state.

Doe’s claim was determined by a Title IX coordinator to be without merit, because he did not prove he was forced to consume alcohol or that he did not initiate the sex acts, according to the court documents.

After the Aug. 14 deadline, Doe and his counsel spoke to Roe’s Title IX coordinator to request that the remainder of the investigation and his impending disciplinary hearing be conducted under the new 2020 policy which would grant them the ability to cross-examine witnesses. Citing the Office of Civil Rights post, RPI’s Title IX coordinator responded that his hearing would follow the 2018 policy because the new rules were not retroactive.

On Sept. 28, Doe filed a lawsuit alleging  RPI’s handling of his cross-complaint against Roe and its refusal to employ the 2020 policy amounted to sex discrimination in violation of Title IX.

U.S. District Judge David N. Hurd wrote in his injunction that he was not taking a position on the retroactivity of the Title IX rules, but argued that RPI’s acceptance of  Roe’s claim but not Doe’s may amount to sex discrimination if its 2018 code of conduct policy was applied unevenly.

“Doe has made a showing that RPI’s current regime may be discriminating against him on the basis of his sex, and if he is satisfied that the 2020 policy’s additional protections would adequately shield him — which he has indicated that he believes they would — the Court would be willing to entertain allowing RPI to proceed,” Hurd wrote. “Barring that, this Court must be satisfied that (RPI) adequately protects male students like Doe before he can be threatened with discipline in this matter.”

Hurd also agreed with attorneys for Doe who argued that the Office of Civil Rights post did not carry the full weight of law, noting that courts are not bound by the guidance. He argued the post was unclear whether it was referring to colleges being required to change the rules in the middle of a proceeding or it meant that they would not be sanctioned for not reopening cases that had already been resolved.

Hurd wrote OCR’s decision would create two different processes for incidents alleged to have occurred before and after the Title IX rule changes.

Ryan Thompson, a former Title IX coordinator at Niagara University who is now in private practice, noted that New York schools already deploy a different standard to offenses mentioned in Gov. Andrew M. Cuomo’s “Enough is Enough Act,” such as off-campus sexual misconduct, stalking and violence, which are not covered under federal Title IX laws.

The decision in the RPI case, while it may be appealed, reopens the retroactivity question and will inevitably prompt New York institutions to rethink how to proceed with ongoing investigations.

“It seems like the Department of Education did not foresee the level of unintended complexities these regulations create,” Thompson said. “It’s as if the department designed a new and experimental airplane on paper, and then mandated all the airlines use it, yet has not only not tested the plane to see if it flies, but hasn’t even put it through the flight simulator.”



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