As we suggested in our February 2017 blog post, the future of Title IX application in our institutions is in flux. The Department of Education Office for Civil Rights rescinded the Obama era 2011 Dear Colleague Letter and 2014 Guidance on September 22, 2017. These guidelines placed certain procedural requirements on investigations of sexual misconduct allegations conducted by postsecondary institutions receiving federal funding. The Department of Education (“DOE”) stated that the policy requirements in these documents led to procedures that did not adequately protect the rights of the students accused of sexual misconduct. Specifically, the DOE criticized these guidelines for: requiring a preponderance of the evidence standard, requiring Universities with appeal processes to allow accusers to appeal “not guilty” outcomes, discouraging Universities from allowing cross-examinations by the parties, prohibiting the Universities from relying on law enforcement investigation reports, and requiring Universities to employ an expedited timeline for investigations. Therefore, the DOE stated it is currently in the process of developing new regulations that it will issue for public comment by all stakeholders. Until more formal regulations are adopted, schools are to follow the Q&A issued on September 22, 2017. Continue Reading DOE Announces Intention to Revise Title IX Campus Sexual Misconduct Investigation Requirements
Paul S. Thaler is the Managing Partner of the Washington, D.C. office of Cohen Seglias Pallas Greenhall & Furman PC. He is Chair of the Firm's Scientific Misconduct Group, and Co-Chair of the Internal Investigations Group. He is also a member of the Firm's Alternative Dispute Resolution and Commercial Litigation Groups. Paul has successfully defended and prosecuted a wide variety of claims, including breach of commercial contracts, scientific misconduct, theft of trade secrets, copyright infringement, unlawful discrimination, wrongful termination and workplace violence.
This blog post was updated on March 17, 2017 due to the news that SCOTUS will no longer hear Gavin Grimm’s bathroom case.
The evolving field of enforcement of Title IX matters took another turn last week.
On February 22, 2017, the Department of Education and Department of Justice, under the direction of the new Administration, together issued a “Dear Colleague Letter” (“Letter”) expressly rescinding certain guidance letters from the previous administration, which provided that Title IX’s prohibition of discrimination based on “sex” protects transgender students from discrimination based on their gender identity.
At the allegation stage of a research misconduct matter, it may not be known which of several scientists actually committed research misconduct (assuming anyone did), resulting in more than one scientist being named as a respondent. Often, an allegation will be made against the supervising scientist along with the junior scientists in the lab who are involved in the research. This is not inappropriate at the allegation stage; after all, allegations are just that – allegations. Continue Reading Research Misconduct – Guilt by Association
This article was originally published by TheScientist on December 16, 2016.
It was not until the Supreme Court decided a case concerning marital contraception that the right to privacy became a legally cognizable interest sanctioned by the United States. In 1965, the landmark ruling in Griswold v. Connecticut (381 U.S. 479) held that, when one looks at the Bill of Rights, a natural extension is a right to privacy. Since that decision, courts and governments have sought to define the parameters of this right. Continue Reading The Scientist’s Scarlet Letter
The rights due to a student under Title IX continue to evolve. Title IX prohibits discrimination based on “sex,” which historically has meant that biological male and female students are required to be treated as equals. Recently, a California federal court held that “sex” discrimination also includes discrimination based on a student’s sexual orientation. Videckis v. Pepperdine University, 150 F. 3d 1151 (U.S.C.D. Calif. 2015). Continue Reading Impact on Transgender Students as the Meaning of “Sex” Discrimination Evolves Under Title IX
Often times, when a dispute first arises, even before litigation has begun, one or both sides will hire counsel to assist in trying to resolve the dispute. Even if counsel is not retained at that early stage, however, once litigation is instituted, in most cases neither party appears pro se. In many jurisdictions, a corporate party is not even permitted to appear pro se. Litigation then proceeds with opposing counsel handling all aspects (albeit in consultation with their clients). Continue Reading Research Misconduct Cases: No Need to Fly Solo – Let a Lawyer Be Your Co-Pilot
In litigation, the issue du jour is the discovery of electronically stored information (“ESI”). There are a whole host of issues, such as the particular form in which the ESI should be produced (pdf? native format?), whether data claimed to have been deleted can be restored, and whether the producing party has control of the production or whether the requesting party can send in its own technological team to copy the data. These are just a few of the ESI related issues that are generating much discussion – between parties and their counsel, among the Judiciary, and among the bar.
This article originally appeared in Corporate Counsel
In this renewed era of individual responsibility for corporate malfeasance, corporate counsel would be well advised to help protect themselves from personal liability by taking six steps of their own when notified of allegations of wrongdoing within the company.
This article originally appeared in Corporate Counsel
Five years ago, the U.S. Justice Department announced that it had charged GlaxoSmithKline Vice President and Associate General Counsel Lauren Stevens with two counts of obstruction of justice and four counts of making false statements to the Food and Drug Administration (FDA). At issue were allegations that Stevens had sent a series of letters to the FDA denying that the company had promoted its drug Wellbutrin for off-label uses and that she failed to turn over evidence to the contrary, including various slides used by physicians paid by the company to promote the drug’s off-label use.
Research misconduct inquiries and investigations are conducted by committees appointed by an institution’s research integrity officer. The committee members are typically scientists, not lawyers. Not only must they analyze the science in question, but they also must ensure that the institution meets all of its obligations under both the institution’s misconduct policy as well as federal regulations (if the research is federally funded.) Sometimes an institution will appoint committee members from outside the institution conducting the inquiry and investigation, but it is not required to do so.