February 24, 2020
Higher Education Alert
Higher Education Alert
Author(s): Steven M. Richard
Court finds no protected activity where student advocated in support of an accused during an investigation.
A student athlete asserted that a university retaliated against her in violation of Title IX of the Education Amendments of 1972 (“Title IX”), after she participated in an investigation of a coach accused of sexual harassment and advocated for the coach’s innocence. The United States District Court for the District of Minnesota dismissed the Title IX retaliation claim, concluding that the student’s participation in the investigation did not constitute a “protected activity.” Du Bois v. The Board of Regents of the University of Minnesota, Case No. 19-CV-1676 (PJS/LIB) (D. Minn. 2/14/20).
Paige Du Bois attended the University of Minnesota-Duluth for two years—from fall 2016 until September 2018—before she transferred to another school. While enrolled, she competed on the women’s fall cross-country and spring track-and-field teams. As Du Bois and her teammates prepared for the spring 2018 season, the university’s athletic director informed them that their coach elected to take a leave of absence. Du Bois subsequently met with an assistant athletic director seeking to learn the reason for the coach’s leave, which was not disclosed to her. Because of her concerns about the coaching situation, Du Bois was offered the option of red-shirting for the spring season, but she chose to compete on the team.
Shortly thereafter, the athletics department informed the team that its coach was under investigation for alleged sexual harassment and misconduct. The team members were given the opportunity to meet with the university’s investigator. Du Bois met with the investigator and advocated in support of the coach, and she encouraged her teammates to do likewise.
During summer 2018, Du Bois met several times with the university’s athletic department to discuss her future as a student athlete and the fate of her coach. Du Bois claimed that she was assured of the coach’s impending return to the team. At the same time, the athletics department requested that Du Bois perform various administrative tasks for the team’s benefit in preparation for the upcoming fall season, which under normal circumstances would have been undertaken by the coach. Late in the summer, Du Bois suffered an injury that threatened her readiness for the fall season. Because of her injury and the lingering uncertainty about the coach’s future, Du Bois considered redshirting for the fall season. Du Bois was not allowed to redshirt, which led her to consider a transfer. The athletics department warned her that if she communicated with other schools about a possible transfer, she would not be allowed to use the team’s facilities.
On the eve of the 2018–19 academic year, the athletic director informed the team that its coach had resigned and claimed that the resignation caught him by surprise. Du Bois confronted the athletic director in front of the team, stating that he threatened to fire the coach and demanded her resignation. Du Bois accused the athletic director of lying to the team.
When an interim coach was appointed, Du Bois told him that her injury would likely limit her participation in the fall season. The interim coach presented her with two options: participate on the cross-country team (i.e., not redshirt) or leave the team. Du Bois was next summoned to a meeting with athletic department staff to discuss whether she intended to transfer or press her prior request to red shirt. Du Bois responded that she had not yet made any final decisions. She was segregated from the team and ordered to clean out her locker, as the athletics department imposed a short deadline for her to decide whether she wished to remain on the team.
After this meeting, Du Bois filed a complaint with the university’s equal opportunity and affirmative action office. A few days later, she transferred to another school, where she competed on the women’s cross-country team. She sued the university, alleging that it violated Title IX by (1) retaliating against her and refusing to allow her to redshirt because she supported her displaced coach during the sexual harassment investigation, (2) discriminating against her and other female athletes by allowing male athletes to redshirt, and (3) engaging in insufficient funding of the women’s cross-country and track-and-field teams. The court easily dismissed the redshirt and funding discrimination claims as insufficiently pled. In our analysis below, we focus on the more interesting and widely pertinent analysis of the retaliation claim.
Unlike many federal and state civil rights statutes, Title IX does not expressly address retaliation. In Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), the United States Supreme Court held that retaliation against a person who complains about sex discrimination is itself a form of discrimination “on the basis of sex” forbidden by Title IX. Applying Jackson, courts have recognized the following elements to support a claim for Title IX retaliation: (1) a person engaged in protected activity, (2) the school took a materially adverse action against that person, and (3) that there was a “but-for” causal connection between the protected actively and the materially adverse reaction. While Du Bois sufficiently pled that the university took materially adverse action against her, she failed to plead plausible claims that she had engaged in a protected activity and, even if she had plausibly pled a protected activity, there was no showing of a causal connection between the activity and the university’s adverse action.
Absence of a protected activity
Du Bois analogized her Title IX retaliation claim to an employment retaliation claim allowed under Title VII of the Civil Rights Act of 1964 (“Title VII”), which expressly protects persons “who made a charge, testified, assisted or participated in any manner in an investigation . . . .” The court found her statutory comparison to be misplaced because Title VII explicitly forbids retaliation in its statutory language, while Title IX is silent about retaliation in its codification.
Applying Jackson, the court stressed that Du Bois never reported, complained of, or opposed any practice made unlawful by Title IX. Thus, she had not engaged in any protected activity to support a Title IX retaliation claim. “[R]etaliating against someone who has not opposed sex discrimination—indeed, who is arguing that no sex discrimination occurred—cannot possibly be considered a form of discrimination on the basis of sex.”
The court stressed that Title IX was enacted under the Constitution’s Spending Clause. The university, as a funding recipient, can only be held liable for money damages if it receives fair notice of what violates Title IX in its funding relationship with the government. Nothing in Title IX (which is silent as to retaliation) and Jackson (which prohibits retaliation against someone who opposes sex discrimination) put the university “on notice that retaliating against someone who does not oppose sex discrimination would violate Title IX.”
Lack of causation
Even if Du Bois’ participation in the investigation could arguably be viewed as a Title IX protected activity, her retaliation claim would still fail for lack of a “but for” causal connection between the activity and the university’s allegedly retaliatory action. The court found that there was no reasonable showing of a temporal connection, where DuBois participated in the investigation in April 2018 and sought to redshirt following her injury over four months later in August 2018. The court analyzed whether Du Bois offered any viable alternative allegations to support causation, but found none in her pleading. In fact, after she had participated in the investigation and as the team’s coaching situation remained unresolved over the summer, the athletics department entrusted her with various administrative tasks to fill the coaching void. While Du Bois’ final interactions with the athletics department were contentious, the department’s denial of her redshirt request and positions about her continuing participation in its program, as she considered a possible transfer, did not reasonably suggest a retaliatory motive.
With the proliferation of Title IX lawsuits by complainants in sexual harassment claims and respondents challenging disciplinary processes, retaliation claims can be an unappreciated risk when assessing Title IX liability concerns. Colleges and universities should remain aware of the above-described protected activity, adverse action, and causal connection framework, especially in instances where there is a close temporal connection between an alleged protected activity and a subsequent adverse action. A plaintiff’s burden to plead a plausible retaliation claim may often be met more easily compared to the pleading requirements in other Title IX private causes of action, such as the “deliberate indifference” standard in a sexual harassment claim.
While the above-addressed allegations fell short of what is required to support a Title IX retaliation claim under Jackson, it is not difficult to foresee scenarios where the alleged facts will be more vexing, which could minimize a college or university’s ability to obtain an early dismissal in litigation. For example, assume a scenario where a non-party student offered statements during an investigation that conveyed mixed signals and information (i.e., offering some supportive words about an accused while also stating, perhaps reluctantly, that the accused behaved inappropriately), and the cooperating student soon thereafter is the subject of an adverse action at the school. A court could conclude that there is a plausible connection to explore whether the student had “reported, complained, or otherwise opposed” gender discrimination as part of the investigation and thereby engaged in a protected activity sufficient to support a Title IX retaliation claim.
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