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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 The Department of Education Office for Civil Rights rescinded the Obama era 2011 Dear Colleague Letter and 2014 Guidance on September 22, 2017.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

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This article originally appeared in The Legal Intelligencer on April 25, 2017

IN-HOUSE COUNSEL

Since taking office on Jan. 20, President Donald Trump has ­issued two executive orders designed to implement what his chief strategist Stephen K. Bannon has described as “deconstruction of the administrative state.” While ­”deconstruction” is perhaps too strong a word for what the administration has proposed thus far, corporate counsel would be well advised to keep abreast of the developments of the regulatory reform effort in Washington to prepare their clients to take advantage of this important, limited-time opportunity. Continue Reading Corporate Counsel and Trump’s Regulatory Reform Agenda

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This article originally appeared in The Legal Intelligencer on February 21, 2017

IN-HOUSE COUNSEL

Last fall, the U.S. Sentencing Commission published the results of its study on the federal ­prosecution of corporations and other organizational ­offenders. The results of that study, based on sentencing data for the calendar year 2015, says much about the types of organizations and offenses that are most likely at risk for federal prosecution and how corporate counsel can reduce the risk of corporate criminal liability in the new year.  Continue Reading Reducing the Risk of Corporate Criminal Liability

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This article originally appeared in Corporate Counsel on January 1, 2017.

Much has been written over the last sixteen months interpreting the shift in U.S. Justice Department policy placing greater emphasis on individual accountability for corporate wrongdoing in federal civil and criminal enforcement proceedings.  Apparently not all of it was accurate.  In what has become known as the “Yates Memo” issued on September 9, 2015, U.S. Deputy Attorney General Sally Quillian Yates outlined six steps to strengthen the Department’s pursuit of individual wrongdoing in corporate investigations:  Continue Reading Five Common Misconceptions About The Yates Memo

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.

Continue Reading The Future of Title IX Enforcement and Gender Identity

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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 originally appeared in The Legal Intelligencer

In-House Counsel

Countdown FiveFor attorneys who routinely litigate matters adverse to federal and state government agencies, sometimes ­referred to as government and regulatory law, the trend has been easy to see. Over the last half century or so, the U.S. Supreme Court has gradually expanded the degree of deference traditionally afforded to the rules and adjudications of administrative ­agencies. This has included not only ­deference to legislative rules resting on legislatively conferred rulemaking powers, referred to as Chevron deference, but also to interpretive rules created by an agency based on its specialized role and expertise, referred to as Skidmore deference. Continue Reading Five Crucial Mistakes to Avoid During PA Administrative Litigation

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

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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