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The U.S. Court of Appeals for the Sixth Circuit recently issued its decision in Dahmer v. Western Kentucky University vacating a district court’s grant of summary judgment with respect to a plaintiff’s Title IX claims of student-on-student harassment. In light of the U.S. Department of Education’s July 12, 2022 Proposed Rule which will, in effect, expand the scope of Title IX, the Dahmer decision demonstrates the importance of detecting and investigating potential sex discrimination and sex-based hostile environments.

Summary of Dahmer v. West Kentucky University

In Dahmer, a university student alleged that Western Kentucky University and university personnel violated her rights under Title IX when, in connection with her role as President of the Student Government Association, she endured "verbal, mental, and emotional abuse . . . on the basis of sex." Specifically, Dahmer claimed that she faced sex-based threats of violence from peers and was subject to sexually explicit comments and inappropriate behavior from the Student Government Association’s faculty advisor. Dahmer further alleged: 1) she informed the faculty advisor of the alleged harassment prior to February 2018 and he failed to take remedial action; 2) she officially reported the alleged harassment and provided actual notice to the University in February 2018, and the Title IX Coordinator failed to act in accordance with statutory obligations; and 3) she suffered retaliation when the University did not award her a specific scholarship. The district court granted summary judgment on all claims in favor of the defendants. Notably, with respect to Dahmer’s student-on-student harassment claim, the district court held that the University did not have "actual knowledge" of the conduct because the faculty advisor was not an "appropriate person" for purposes of triggering Title IX liability.

On appeal, the Sixth Circuit analyzed Dahmer’s claims two-fold: 1) claims of harassment pre-February 2018 and 2) claims of harassment post-February 2018. The Sixth Circuit examined the claims under both the deliberate indifference and hostile environment frameworks to test the validity of Dahmer’s claims. Ultimately, the Sixth Circuit affirmed summary judgment on the post-February 2018 claims due to the dearth of facts demonstrating severe, actionable sexual harassment. However, the Sixth Circuit vacated the grant of summary judgment with respect to the pre-February 2018 claims. 

The appellate court determined the record reflected that the faculty advisor’s job responsibilities included a duty to "supervise student organizations" and that the faculty advisor acknowledged he was a "responsible employee" during his deposition testimony. As such, and according to the appellate court, the record contained sufficient evidence tending to show that the faculty advisor could have addressed Dahmer’s allegations.  The appellate court ultimately vacated the grant of summary judgment and remanded for further proceedings regarding the pre-February 2018 claims because the district court did not conduct a full merits analysis of these claims and the University did not meet its burden to show that the faculty advisor was not an "appropriate person" for purposes of evaluating the viability of the Title IX claims. 

Connecting Dahmer and the U.S. Department of Education’s Proposed Rule

Dahmer demonstrates the importance of understanding who constitutes an "appropriate person" under Title IX and detecting when the need to investigate and fulfill obligations under Title IX may arise. The July 12, 2022 Proposed Rule similarly seeks to broaden the scope of Title IX which, in turn, requires covered entities to understand how their obligations will be impacted. This includes proposals to aggressively expand the categories of employees who must provide information to a complainant and/or report matters to the Title IX coordinator for further processing or proceedings. The period for public comment closed on September 12, 2022, and higher education institutions should prepare for the implementation of the Final Rule. 

Notably, the Proposed Rule broadens the definition of "sexual harassment" to "sex-based harassment" and codifies additional protections. For instance, discrimination based on sex will include discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity. The U.S. Department of Education grounds part of its rationale in the Supreme Court’s Bostock v. Clayton County (2020) opinion: it is "impossible to discriminate against a person" on the basis of sexual orientation or gender identity without "discriminating against that individual based on sex." Accordingly, the Proposed Rule seeks to strengthen protections for LGBTQI+ students who face discrimination based on sexual orientation or gender identity. As a result, this broadened scope will likely impact an educational institution’s nondiscrimination program and policies, calling for additional protections and revised language.

Additionally, the U.S. Department of Education enumerates the following key components of the Proposed Rule:

  1. Require schools to respond promptly to all complaints of sex discrimination with a fair and reliable process that includes trained, unbiased decisionmakers to evaluate the evidence.
  2. Require schools to provide supportive measures to students and employees affected by conduct that may constitute sex discrimination, including students who have brought complaints or been accused of sex-based harassment.
  3. Clarify and confirm protection from retaliation for students, employees, and others who exercise their Title IX rights.
  4. Improve the adaptability of the regulations’ grievance procedure requirements so that all recipients can implement Title IX's promise of nondiscrimination fully and fairly in their educational environments.
  5. Require schools to take prompt and effective action to end any sex discrimination in their education programs or activities – and to prevent its recurrence and remedy its effects.

Title IX "To Do" List

While awaiting the implementation of the Final Rule, covered entities should begin to:

  1. Analyze the Proposed Rule.
  2. Review current internal policies and procedures.
  3. Review current postings / publications containing nondiscrimination statements to revise where applicable and correct outdated versions.
  4. Consider how training materials may need to be amended and develop training programs for employees.
  5. Review the Mandated Reporter Requirements under the Proposed Rule.
  6. Consider the addition of one or more "designee(s)" under the Title IX Coordinator.

Buchanan’s education law attorneys are closely monitoring the Proposed Rule and will keep you informed of any updates. Contact us if you have any questions with respect to obligations under the proposed amendments to Title IX and how to begin the policies and procedures revision process.