On October 16, 2020, the Northern District of New York, in Doe v. Rensselaer Polytechnic Institute, enjoined Rensselaer Polytechnic Institute (RPI) from applying its 2018 Sexual Misconduct Policy to a complaint concerning an incident that occurred prior to the August 14, 2020 effective date of the Department of Education’s new Title IX Regulations (the Regulations).¹ The opinion raises the important question of whether schools will be presumed, conclusively or otherwise, to violate Title IX by using pre-existing investigative and adjudicatory procedures for incidents occurring before the effective date of the Regulations, notwithstanding the statements in the Preamble to the Regulations and by the Office for Civil Rights (OCR) in a September 3, 2020 blog post that OCR will not apply the Regulations to complaints regarding pre-August 14, 2020 conduct.

Case Background

RPI initiated a Title IX investigation of Doe, a male student, in January 2020, after a female student, Roe, filed a complaint of sexual assault against him. In June 2020, Doe filed a Title IX complaint against Roe stemming from the same sexual encounter. On August 4, 2020, RPI concluded that it was more likely than not that Doe violated its 2018 Sexual Misconduct Policy, which was in effect at the time of the incident. On the same day, RPI dismissed Doe’s complaint against Roe. Doe requested a hearing to challenge the initial finding against him and requested that it proceed under RPI’s 2020 Sexual Misconduct Policy. RPI declined Doe’s request to proceed under the 2020 Policy, citing OCR’s blog post and noting that the Regulations were not retroactive. Doe filed suit against RPI, alleging that the university’s refusal to use its 2020 Policy in the pending proceedings against him amounted to sex discrimination in violation of Title IX.

The district court granted Doe’s request for a temporary restraining order, enjoining RPI from applying its 2018 Policy. The court suggested that RPI’s application of its 2018 Policy did not, on its own, constitute sex-based discrimination because the decision applied to both men and women. But the court found that RPI’s refusal to make available the due process protections set out in the 2020 Policy, together with other aspects of RPI’s handling of Roe’s complaint and Doe’s cross-complaint,² established “not inconsiderable evidence that gender was a motivating factor in RPI’s treatment of Doe.” The court reasoned that RPI’s application of the 2018 Policy was evidence of a “clearly irregular investigative or adjudicative process” because RPI could easily have applied its 2020 Policy to the pending proceedings, but instead opted for a policy with fewer procedural protections in spite of the “inevitable administrative headaches” of having multiple Title IX procedures.

The court held that whether OCR would enforce the Regulations retroactively was largely irrelevant. The court rejected RPI’s reliance on language in the Final Rule’s Preamble and in OCR’s blog post to the effect that schools will only be found to be noncompliant with Title IX if they fail to comply with the Regulations when investigating and adjudicating claims relating to sexual misconduct “that allegedly occur[ed] on or after August 14, 2020.” The court gave three reasons for its holding:

1. Even if the Preamble to the Final Rule is entitled to judicial deference, it is unclear on the definition of “retroactivity.” The court explained that applying the 2020 Policy to proceedings occurring after August 14, 2020 would not be “retroactive” under some definitions of the term. 
2. The OCR blog post is not an authoritative statement entitled to Auer deference and would lead to illogical results because it would permit schools to maintain two sets of procedures until every claim relating to pre-August 14, 2020 sexual misconduct is resolved.
3. RPI’s 2020 Policy is internally inconsistent on the issue of retroactivity. Under the 2020 Policy, “[a] Complaint of Sexual Misconduct will be investigated and adjudicated using the procedural provisions of the Sexual Misconduct Policy . . . in effect at the time of the report and the substantive provisions in effect at the time the conduct allegedly occurred.” The court found nothing in the OCR blog post to support RPI’s bifurcated approach to the retroactivity issue.

Key Takeaways

This case has serious implications for Title IX claims against colleges and universities because it suggests that schools may not rely solely on the OCR blog post as a justification for applying pre-existing investigative and adjudicatory procedures to address conduct occurring before August 14, 2020. To date, OCR has published two additional blog posts for the purpose of clarifying the Regulations. The RPI decision provides a strong warning that such clarifications may not receive deference from a court when adjudicating Title IX claims.

The district court also raised, but did not decide, whether the Preamble to the Regulations is entitled to deference. This question is particularly significant here, where the Department of Education used the Preamble to clarify questions raised by the text of the Regulations, and schools, in turn, have relied on the Preamble in revising their sexual misconduct policies.