By Alisha Carter Harris, M.S., Consultant and Joseph Vincent, M.L.S, Senior Supervising Consultant, TNG Consulting
“Follow your policy” is one of the first pieces of advice provided to practitioners during Title IX training and is akin to statements like “brush your teeth” or “wash your hands” – reminders that seem elementary but are both common sense for good hygiene and should go without saying. Following institutional policy while administering each phase of the Title IX grievance process is not only common sense and good hygiene, it also protects your institution from legal liability.
Policies provide school communities with rules of engagement, while procedures explain how the school will enforce those rules. School community members are expected to abide by school policies, but what happens when schools fail to do so?
In the case of Doe v. Coastal Carolina Univ., Case No.: 4:18-cv-00268-SAL, 4 (D.S.C. Mar. 1, 2021), a federal court concluded that a school’s deviation from its applicable published procedures created a scenario that could lead a reasonable jury to doubt the outcome of Doe’s disciplinary proceeding and find a “causal connection between the erroneous outcome and gender bias.” More specifically, the court found that Coastal Carolina’s appellate authority considered Doe’s accuser’s appeal on a ground not provided in the school’s policy and relied on a report authored by the Title IX coordinator (that opined Doe violated university policy and ordered a new panel to hear the complaint) that was not used in the first hearing or a part of the university’s written procedures. This led the court to determine:
This outside independent review of the first panel’s decision is not contemplated in the school’s appeal policy. This evidence may reflect an appeal that was unusually generous toward the female appellant. Therefore, the review process on appeal creates a genuine dispute of material fact as to gender bias.
Doe’s suit alleged that Coastal Carolina demonstrated gender bias against him on five separate grounds. The court dismissed four of the claims and the only claim to survive the court’s scrutiny was the school appellate authority’s deviation from the written appeal procedure. But for this deviation from established procedure during appeal, Coastal Carolina would have been granted summary judgment and Doe’s claim denied. Instead, it faced years of litigation culminating in a multi-day trial for the first Title IX erroneous outcome claim by a respondent to make it to a jury. Coastal Carolina prevailed, largely because of the challenge of proving that procedural errors demonstrate evidence of gender bias, rather than just errors.
Arguably, though, the errors and deviations from procedure opened the door to the suit, regardless of outcome. The lawsuit highlights the necessity for schools to follow the policies and procedures they have in place from the outset of the Title IX grievance process to its conclusion. Material conformity to the published procedures feels like an elementary talking point – it certainly does not dominate the philosophical discourse of Title IX compliance in the way the future of the regulations, the varying standards for pleading and/or judicial review, and other rare and complex topics do. But, sometimes the simple is difficult, and becomes difficult often because it is so simple that we don’t pay enough attention to it.
Institutional administrators must know their Title IX policies and procedures, materially adhere to them, and provide meaningful notice and robust communication when and if deviations become necessary. Don’t improvise or go substantially off-script without consulting institutional legal counsel first. Avoid interpreting procedures in a way that drives toward a particular desired outcome. If you inadvertently deviate from your established procedures, recognize it early and correct it well before you wind up in federal court.
Failure to practice the good hygiene of following institutional procedures is the most frequent – and certainly one of the most avoidable – bases for claims brought against institutions in federal and state litigation. Good procedural hygiene can help you to avoid time-consuming litigation, costly judgments, and reputational harm to the institution’s brand.
Contact us at inquiry@tngconsulting.com to learn more about our policy-related consulting services, including developing and revising polices and procedures and assessing compliance.