Title IX / College Discipline Practice - Warshaw Burstein LLP | Kimberly C. Lau Releases Fall Edition of the Title IX Insider
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Kimberly C. Lau Releases Fall Edition of the Title IX Insider

10/28/2024
Welcome to the fall 2024 edition of the Title IX Insider. With the release of the 2024 Title IX Final Rule blocked by legal challenges, the future of Title IX on campus remains uncertain. Although the Circuit Courts have expedited proceedings, we expect that regardless of the outcome, the losing side would appeal to the Supreme Court, dragging the process out further.

In the meantime, we will continue to passionately advocate for our clients on campuses and in courtrooms where we continue to have numerous successes across the nation, including at Colby, Fordham University, Georgetown University, Hamilton College, Marist College, the Pratt Institute, Rutgers, the University of Oregon, University of Chicago, University of Illinois, UNC, and more.

- Kimberly C. Lau, Chair


The Delayed Rollout of the 2024 Title IX Final Rule


Although the 2024 Title IX Final Rule was due to take effect on August 1, 2024, a series of lawsuits across the country have delayed the 2024 Final Rule's rollout in 26 states.

Lawsuits challenging the 2024 Final Rule were expected, but the main focus of these lawsuits has been on the redefinition of sex discrimination to include discrimination based on gender identity, not on the rollback of due process protections in the 2024 Final Rule. The Fifth, Sixth, and Eleventh Circuits have all issued injunctions prohibiting the implementation of the 2024 Final Rule within those circuits and in hundreds of universities and schools in other circuits across the nation. The Circuit Courts enjoined the entirety of the 2024 Final Rule on the ground that the new gender identity protections permeate every aspect of the 2024 Final Rule, and the severability clause is insufficient to save the remainder of the 2024 Final Rule.

For schools that have adopted the 2024 Final Rule, some have exploited the opportunity to strip away due process protections for accused students. For example, some schools have completely done away with the right to a live hearing with cross-examination. However, the rollback of due process protections is by no means universal. For example, CUNY, which represent 25 schools, has chosen to maintain live hearings, and allow cross-examination during such hearings.

To find out if your state or school is covered by one of the injunctions against the 2024 Final Rule, you can review the U.S. Department of Education's website.

If you are living in a state where the 2024 Final Rule has taken effect, you can learn more about your rights by downloading our Title IX Guides.


Doe v. Rutgers: Plaintiff's Title IX Claim Overcomes Rutgers's Motion to Dismiss


In a recent decision, the District of New Jersey denied Rutgers's motion to dismiss our client’s Title IX claims. The Court found that our Complaint raised a plausible inference that sex was a motivating factor in Rutgers’ disciplinary process and its decision to suspend Plaintiff. The Court noted that Rutgers was facing public pressure to respond more forcefully to alleged sexual misconduct and responded by creating an action plan that focused on engaging men on issues regarding men’s mental health and interpersonal violence victimization and perpetration, but Rutgers did not create a corresponding group for women.

Rutgers also failed to investigate Jane Roe for stalking Plaintiff while proactively investigating Plaintiff for stalking Jane. Although the Seventh and Eleventh Circuits are becoming more hostile toward Title IX claims, courts in the Third Circuit have continued to follow its existing, more plaintiff friendly, precedent. In recent Seventh and Eleventh Circuit holdings, the courts have dismissed complaints because the allegations were “no more suggestive of sex discrimination than . . . incompetence, impatience, or pro-complainant bias.” Here, however, the District of New Jersey held that “although there may be other plausible alternative explanations for treating Plaintiff’s reports differently…on a motion to dismiss the Court is obliged to ‘construe the complaint in the light most favorable to the plaintiff.’”

Finally, the Court held that the complaint sufficiently alleged that the hearing outcome was erroneous, and that gender bias influenced the decision. The allegations showed that Jane’s purported fear of Plaintiff was undermined by the fact that she continued to have a consensual sexual relationship with Plaintiff for four months following the incident at issue. Furthermore, Rutgers’ finding that Plaintiff was stalking Jane was undermined by the fact that Plaintiff lived in the same building as Jane, and he only ever had incidental contact with her. For example, while Rutgers found Plaintiff’s presence on the same bus as Jane to be indicative of stalking, the Court noted that Plaintiff had a legitimate reason to be on the bus since the next bus home would not arrive for another 26 minutes.

Our client’s gender discrimination claim against Rutgers will now proceed to the discovery phase of litigation.


In the News

Chronicle of Higher Education Interviews Kimberly C. Lau on Yale Defamation Case


Awards & Recognitions

Congratulations to Kimberly C. Lau for being named 2024 Super Lawyers in Schools & Education for the eleventh consecutive year. The annual Super Lawyers list recognizes the top five percent of lawyers in New York for their professional achievements. Lawyers are selected through a process that includes independent research, peer nominations and peer evaluations.


At the Podium

On November 15, 2024, Kimberly C. Lau will be co-presenting Expert Evidence That Can Help Prove Lost Opportunity Damages in Light of the Limitations Imposed by Cummings v. Premier Rehab Keller PLLC at a full-day CLE for Title IX lawyers in Washington D.C.