By Mishka A. Woodley, J.D., LL.M, Assistant Counsel, SUNY System, Office of General Counsel and Harris Bresowsky, Legal Intern, SUNY System, Office of General Counsel
[ PDF Version ]
Earlier this year, there were two U.S. Circuit Court decisions published that addressed potential institutional Title IX liability related to sexual misconduct related incidents based on a deliberate indifference analysis. The first was a precedential decision released on January 11, 2022 by the United States Court of Appeals for the Third (3rd) Circuit regarding Hall v. Millersville University which held that colleges and universities may be held liable under Title IX for deliberate indifference to known sexual harassment committed by a nonstudent guest. The second surfaced later that month on January 25, 2022. The United States Court of Appeals for the Ninth (9th) Circuit issued a decision on Brown v. State of Arizona which affirmed that institutions must exercise substantial control over both the harasser and the context in which the alleged harm occurs. Absent both elements, institutional liability under Title IX is not warranted. In this case, an off-campus apartment was the location at issue. These are two cases that address the concepts of nonstudent involvement in sexual harassment related issues and the potential implications of incidents at non-campus and privately owned off-campus apartment complexes. One incident resulted in the death of a student.
So, the key challenge that many institutions face with limited time and resources is - What path do we take from here? Institutional leaders, practitioners, and related parties receive updates highlighting circuit court cases such as these through various channels, including publications, institutes, counsel, etc. Beyond skimming the facts of the case to confirm whether your institution or locality is involved . . . or reading a little more carefully to assess whether you are experiencing or have experienced the same fact pattern - what next? Should you stop to take a deeper dive or forward for a colleague to do so? Or should you take a mental note, accelerate through the content, and move on - never to look back unless necessary?
When it comes to circuit court cases, there are four (4) critical steps that you should take to consistently propel your institutional processes and procedures toward short-term and long-term compliance.
STEP #1 - Identify Your Status
STEP #2 - Assess the Impact
STEP #3 - Implement Necessary Updates
STEP #4 - Inform Impacted Parties
Do you know whether either of these cases are binding to your region, your state, or most importantly your institution? Do you know your circuit number by heart or is it saved in your cellphone notes? The Student Conduct Institute (SCI) has designed a colorful resource to help you identify whether a Circuit Court decision applies to your state and institution, as well as the lower federal courts that fall within the circuit court’s jurisdiction. U.S. circuit courts are divided into 13 circuits – each circuit having jurisdiction over several states and territories.(See Circut Courts Map) Each state represented may have one district at large, or may be divided into multiple districts, depending on the historical and current populations of the state.
For example, New York State has four districts (Eastern, Western, Northern, and Southern), while New Jersey only has one. If your state falls within the circuit court jurisdiction of a case- stop and pay close attention to the facts and the decision! The decision and its related requirements are binding to your institution. If your state falls outside of the jurisdiction- slow down! The decision may not be binding to your institution. However, there may be some invaluable insight and guidance to be gained.
Since U.S Supreme Court decisions are the highest legally binding source of the land where federal matters are concerned and U.S. Supreme Court justices take on only a limited number of cases, circuit decisions are not litigated at the U.S. Supreme Court level often. Consequently, most circuit decisions are binding to their respective states and are not easily overturned. Institutions bound by these decisions must ensure that their operations and practices directly align with the Court’s opinion as related to institutional expectations. Different courts within the circuit may interpret and analyze the facts of the case in a slightly different way. However, they will look to the circuit decision as precedent. Key considerations include:
If your institution resides in a state outside of the circuit court’s jurisdiction, the decision is not binding to your state. However, there are a few key things to consider:
Whether you determine that your institution needs a policy and procedural overhaul, minor update, or light refresh, take the time to ensure that all policies, procedures, their associated trainings and resource documents are also updated. These may include forms, reference guides, presentations, print and electronic communications and materials, etc. Furthermore, don’t forget to update any hyperlinks that may connect to old information or may be broken during the update process. Remember that strong compliance is grounded in both procedural and substantive due process. Up to date policies, procedures and supporting documents that provide a clear roadmap to success are invaluable.
Every strong compliance program has a team of individuals committed to equitable, effective, and consistent implementation with an eye on both procedural and substantive due process. (See SCI’s member exclusive training on Due Process)
Once necessary updates, if any, have been identified, notify your team of policy/procedure/training professionals and other applicable employees/practitioners impacted by any of the changes. If no changes are necessary- Fantastic! However, still notify some of those individuals anyway and let them know that the issues presented in the case are important and may be on the radar of your diverse stakeholders - employees, parents, students, organizations, courts, etc. depending on the issue. Litigation often operates in trends once U.S. Supreme Court and circuit court case decisions are released, as seen with Name, Image, Likeness (NIL) litigation in response to the unanimous Supreme Court decision National Collegiate Athletic Assn. V. Alston, which opened the door to new forms of compensation for student athletes beyond traditional institutional scholarships and resources. If you monitor and respond to decisions as they arise, and advise your teams accordingly, your institution and team will be able to anticipate and be more prepared for the steep inclines, obstacles, storms, or sudden legal and regulatory changes that will inevitably come your way.
We, at SCI, are here to support your compliance journey through comprehensive training and resources, however far along you are on the path to success. Beginning with step one, let’s “Identify Your Status!” using the SCI U.S. Circuit Courts resource below.
The State University of New York (SUNY) Student Conduct Institute (SCI) has been committed to training staff at public and private institutions of higher education on how to fairly and equitably investigate and adjudicate conduct violations since its inception in 2018. As the tapestry of the federal and state laws, regulations, and court decisions with institutional impact become more complex, the road to compliance can feel more daunting. Even so, there are some fundamental educational tools, strategies, and resources academic institutions and their respective practitioners and associate professionals alike can integrate into their existing processes to identify and respond to “red” or “yellow” cautionary flags often shrouded in legal updates from diverse sources. And we, at SCI, are here to help on your journey toward ongoing compliance.
If you have any questions regarding this article, the Student Conduct Institute (SCI) resources or membership, or the Student University of New York (SUNY), please contact us at studentconductinstitute@suny.edu. We are happy to assist and look forward to connecting with you.
