WASHINGTON (Legal Newsline) - While lawsuits against Title IX university officers who fail to recognize the civil liberties of defendants can be an effective check and balance on enforcement, qualified immunity has hindered the ability of litigants to hold them accountable. according to a panelist at a May 3 Federalist Society conference.
“These officials knowingly violate the rights of students and faculty for their own ends, and it used to be that the standard for qualified immunity was not just about clearly establishing a constitutional violation but also whether this was an action taken in good faith,” said Samantha Harris, a partner at Allen Harris Law in Pennsylvania.
In Aug. 2020, former Education Secretary Betsy DeVos required schools to hold live hearings that included testimony allowing student defendants to publicly dispute sexual misconduct allegations, according to media reports.
Title IX prohibits sex discrimination at educational institutions receiving federal funding, which means they cannot discriminate against men or women, much like Title VI, which prohibits racial discrimination in programs or activities receiving federal funding.
“The Office for Civil Rights began aggressively investigating schools accused of not doing enough to address sexual misconduct and the result was that many schools quickly dispensed with fairness and impartiality in an effort to appear to be getting tough on allegations of sexual misconduct, which led to processes that courts found discriminated against accused male students,” Harris said.
Harris was among the speakers on a panel called, Selective Enforcement of Civil Rights Law by the Administrative Agencies, at the Federalist Society’s 10th Annual Executive Branch Review Conference.
“What I am struck by time and again when I handle these cases is the absolute bad faith of a lot of these administrators,” she said. “I also deal with a lot of administrators who are trying in very good faith to do their jobs. So, I'm not maligning everyone but when they decide not to try in good faith to do their jobs, they really take people down with them in the process.”
Other speakers on the panel included Hans A. von Spakovsky, a senior legal fellow at The Heritage Foundation, Kenneth L. Marcus, chairman of the Louis D. Brandeis Center for Human Rights Under Law, and Renée M. Landers, professor at Suffolk University Law School in Boston.
“Since 2011, there have been more than 600 of these lawsuits filed and the parties who were being found responsible for violating Title IX or for violating due process rights were the universities but ultimately on a broader scale they provided a check against what I feel OCR (Office of Civil Rights) was trying to do in terms of encouraging schools just to make it easier to find people responsible,” Harris added. “So, that's one way in which I think we've seen a check.”
The difference in how civil rights laws are enforced by the Office of Civil Rights, however, is based on political priority but there are limitations to that political influence, according to Landers.
“There are procedural constraints,” she said. “The Administrative Procedure Act provides procedural constraints and administrations of both political parties sometimes struggle with adhering to those technical requirements.”