Title IX is featured in virtually every university student handbook, as well as in many faculty contracts and university policies. These policies invite complaints, and once filed, investigations ensue. Investigating Title IX complaints can cause the respondent mental distress, to be subjected to numerous interviews, and to incur considerable legal fees. Unfortunately, some Title IX complaints are frivolous and meritless, as they allege conduct that, even if taken at face value, could not possibly violate Title IX or the university’s sexual harassment code. The question then becomes: can you seek to dismiss a Title IX complaint that is clearly unwarranted? Indeed, in some cases, seeking dismissal of a Title IX complaint that appears frivolous and meritless is permitted.

Title IX requires schools, local and state educational agencies, and other institutions that receive federal financial assistance, to protect individuals from discrimination based on sex. Its coverage includes sexual orientation and gender identity. Examples of the types of discrimination that are covered under Title IX include sexual harassment; the failure to provide equal athletic opportunity to female students; sex-based discrimination in a school’s science, technology, engineering, and math (“STEM”) courses; and discrimination based on pregnancy.

Congress intended that Title IX would be interpreted and applied as Title VI has been. See Cannon v. University of Chicago, 441 U.S. 677 (1979) (noting that “Title IX was patterned after Title VI of the Civil Rights Act of 1964, and the drafters of Title IX explicitly assumed that it would be interpreted and enforced in the same manners as Title VI”); 118 Cong. Rec. 5807 (1972) (Sen. Bayh) at 18437 (“[Enforcement] of [Title IX] will draw heavily on these precedents” under the Civil Rights Act of 1964). Title VI of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color or national origin in programs or activities that receive federal funds.

Applying the principle of Title VI precedent, the Title VI manual, at section VI. C. offers educational institutions guidance in responding to frivolous or meritless complaints, including the following:

An agency is not obliged to investigate a complaint that is frivolous, has no apparent merit, or where other good cause is present, such as a pending law suit.

See UNITED STATES DEPARTMENT OF JUSTICE TITLE VI LEGAL MANUAL. With this in mind, Congress itself opened the door to allow educational institutions to dismiss complaints that are frivolous and meritless on their face. This, in turn, can allow legal counsel, in appropriate cases, to argue that investigation of a facially inadequate Title IX complaint is not required and inappropriate – therefore, dismissing the meritless Title IX complaint is the only appropriate course of action.  Some universities have explicit mechanisms for this type of “dismissal” of a frivolous or meritless complaint.

This facial challenge is similar to that of Rule 8 of the Federal Rules of Civil Procedure, and Iqbal’s requirements. See Ashcroft v. Iqbal, 556 U.S. 662 (2009). Iqbal stiffened the federal pleading standard, raising the standard to a heightened level of pleading to prevent plaintiffs from bringing forth frivolous claims. Courts demand more than “mere possibility of misconduct,” and require facts be pleaded that “plausibly suggest an entitlement of relief.” This standard allows attorneys to facially challenge claims that cannot muster relief in courts that are governed by the Federal Rules of Civil Procedure – these challenges come before any “investigation” ensues on the merits of the claim.

The severity and seriousness of Title IX complaints should never be overlooked. Every complaint should be met with diligence and, where appropriate, investigation should be thorough. However, educational institutions must recognize that some complaints, which are facially frivolous and meritless, should be dismissed, as the alleged misconduct cannot possibly violate Title IX or the university’s sexual harassment policy. Congress expressed its full intention to interpret and apply Title IX in the same manner as Title VI. This intention can give discretion to educational institutions to dismiss frivolous and meritless Title IX complaints. In appropriate cases, counsel for the respondent can argue the same before the school’s Title IX office.

Cohen & Duncan Attorneys, LLC represents individuals – students, teachers, and professors –regarding Title IX complaints. For more information on these issues, contact Clifford Cohen (cac@studentrightslawyers.com) or Andrew Duncan (ad@studentrightslawyers.com).