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What constitutes “retaliation” under Title IX?

Brian Leiter

MOVING TO FRONT FROM DEC. 1–THANKS TO THOSE WHO HAVE ALREADY COMMENTED, I WOULD LOVE TO HEAR FROM SOME OTHER TITLE IX EXPERTS ON THESE ISSUES

In my other academic field, philosophy, there has been much discussion of the move by the University of Colorado at Boulder to fire a tenured philosophy professor (David Barnett) for "retaliation" against a female complainant in a sexual assault case.  A university investigation found against a male graduate student in philosophy (with whom Barnett had worked); Barnett conducted his own investigation of the university's investigation, and sent the University Chancellor a 38-page report alleging mistakes and misconduct in the university investigation.  (A copy of this report has not been made public to my knowledge.)

So what constitutes "retaliation" under Title IX?  Can alleging a university investigation was flawed constitute retaliation?  How does "retaliation" under Title IX interact with the First Amendment rights of faculty and students?  Any insight from readers would be welcome.

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4 responses to “What constitutes “retaliation” under Title IX?”

  1. Anita Bernstein

    Nothing in the story says that “retaliation” is Barnett’s ostensible offense against the grad student who complained. The headline says “retaliating,” but that’s neither here nor there. CU is going after Barnett claiming that Barnett did something that warrants forfeiture of his job, but as far as I can tell from the link, it’s not calling whatever he did retaliation.
    BL COMMENT: There has been some ambiguity in the reporting about this, but what’s clear is that the University settled a “retaliation” claim from the complainant and that the University has accused Barnett of “retaliation,” even if there are other grounds for dismissing him. But I’m less interested in the particulars of the Barnett case than what constitutes “retaliation” for Title IX purposes.

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  2. Anita Bernstein

    Well, I wasn’t picking a nit. The word sowed confusion here. I’m no Title IX expert: but from what I’ve read over the years in antidiscrimination case law and scholarship, “retaliation” gets committed under institutional authority. Individuals like Barnett who disagree with an administrative outcome don’t commit retaliation when they express their disagreement and act on it. They don’t commit retaliation (because they’re deemed incapable of it, I mean), and so there’s no tension between liability for retaliation and their right to comment on a matter of public interest.

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  3. Scott Bauries

    In Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), the Supreme Court held that, rather than a “materially adverse employment action” (such as termination or demotion), retaliation claims under Title VII require only an action that “would dissuade a reasonable employee from complaining” (which might potentially be anything, depending on the circumstances). The Court, to my knowledge, has not yet applied this more lenient standard to Title IX retaliation, but the claims have historically been developed similarly. The 9th Circuit has explicitly applied the Burlington Northern standard to a Title IX retaliation claim recently, but I don’t know if any other circuits have followed along. There is some argument that the Burlington Northern standard should not apply to Title IX claims because the decision rested largely on textual differences between Title VII’s anti-discrimination provisions (which specifically mention the “terms and conditions of employment”) and its anti-retaliation provisions (which do not), and Title IX retaliation an implied cause of action under that statute. But if that’s the case, then it’s an open issue what standard would take its place. Also, Anita is correct that it would be difficult to pin the actions of one dissenting employee on the university in the retaliation context unless he was acting with managerial authority. However, if there is some indication that the employee’s actions were approved of or acquiesced in by those with managerial authority, then the claim could succeed.

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  4. Mike Selmi

    Although it is always difficult to draw conclusions based on a single newspaper story, the Professor’s conduct could rise to the level of retaliation under Title IX and might also be an independent violation of Title IX (though that does not seem to have been alleged). It appears that the Professor may have had some control over the student’s education as a graduate student, and thus he could be seen as acting either as a Supervisor or on behalf of the University (neither is clear from the article but certainly within the realm of possibility). Retaliation claims arise as a result of the filing of a complaint or raising concerns relating to Title IX, and there is little question that the Professor’s actions were in retaliation for her having filed a complaint and the results of the campus investigation. Whether the University could be held liable under Title IX is a more difficult question, but it might constitute retaliation and his behavior — as described in the article — was seriously inappropriate and harmful, and I would assume might constitute an independent ground for dismissal under the Faculty Code. It is not the role of a Professor, and it would not fall within First Amendment protections, to challenge the findings or procedures of a harassment complaint that he is not involved in.

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