Jauregui Law Office Quora Answer: Does a college student with a disability like ADHD or one on the spectrum have any rights during a sexual misconduct investigation under Title IX?
Let me take this answer through three potential scenarios illustrated with two examples, the experiences of a student respondent who has ADHD and that of one on the spectrum:
FIRST: Is the student with the diagnosed and noticed disability entitled to accommodations during the actual sexual misconduct process, including, for example, lawyers and more time to respond to questions or the ability to do so alone. YES.
SECOND: Is the diagnosed and noticed disability to be used as an excuse, a defense, or at least as a mitigating factor during the investigation and adjudication of the student’s response to a complaint of sexual misconduct under Title IX. YES.
THIRD: Is the school’s enforcement of the sexual misconduct policy, while facially neutral, discriminatory against disabled male students? MOST LIKELY YES.
Example 1: John has been diagnosed with ADHD and oppositional defiant disorder since age six. At age 19 he fist bumps a female student at the college gym. She tells him to not pull that hetoronormative sexist shit with her again. He defiantly does it for the next five weeks and forgets what she told him in the first place about fist bumping as normalizing male privilege. She reports him to the Title IX office. They suspend John. He sues.
Example 2: John has been diagnosed on the spectrum since age three. At age 19 he fist bumps everyone at the gym but one female student tells him “go away”. He does not understand why only one won’t fist bump and he keeps on trying to get her to fist bump. He reports him to the Title IX office. They suspend John. He sues.
First of all, yes, a student who has any disability and is in college should immediately contact the college office that handles any condition and ask for their protection. If as part of that student’s college experience a sexual misconduct proceeding takes place, it benefits the student, now called a respondent, to avail himself of all possible accommodations, including a lawyer or three. The range of those would have been determined in an interactive process when he identified his disability. But it seems clear that if the student is awarded, for example, a private room to take tests without distraction, so should this respondent be allowed a private room to answer the questions of sexual misconduct, by himself, and without distraction with the assistance of counsel. (1) It would also benefit the student to have the Student Disability office liaise with the sexual misconduct process at the Title IX office.
For very good reason, males responding to a sexual assault allegation have rights to be free from male bias. To protect their rights to be free from male-bias during this sexual misconduct process, respondents rely on Title IX of the Education Amendments of 1972. (2) For even more established reason, if any of those same male respondents has a disability, for example ADHD, that man has rights to be free from disability discrimination during this sexual misconduct process. To protect their rights to be free from disability-based discrimination, college students rely on Section 504 of the Rehabilitation Act of 1973 (Section 504) (3) and the Americans with Disabilities Act of 1990 (ADA) (4). Thus, just like any respondent needs to preferably lawyer up to protect against male bias during the sexual misconduct process, every respondent with a disability needs to lawyer up to ensure accommodations.(5). The lawyers are the accommodation. And the school should pay for them just like they would pay for readers or for an amanuensis.
Second, a respondent’s diagnosed disability that is known to the university should immediately come into play during the sexual misconduct process. Section 504 regulations not only forbid disability based discrimination in the admission process (6), crucially, they also protect students with disabilities from discrimination in any academic, research, occupational training, housing, health insurance, counseling, financial aid, physical education, athletics, recreation, transportation, other extracurricular, or other postsecondary education aid, benefits, or services .... " (7) A sexual misconduct investigation, as well as the conduct underlying this investigation, falls under the gravamen of these regulations. In addition, learning is included under the ADA as a major life activity. (8) Schools themselves consistently state that a sexual misconduct investigation is an academic educational process, not a trial. The regulations associated with Title II of the ADA apply to any State or local government and "[a]ny department, agency, special purpose district, or other instrumentality of a State or States or local government," including public colleges and universities. (9) Private colleges and universities are covered by Title III of the ADA. (10).
But how does the respondent’s disability play into the evaluation of past conduct and the handling of potential future punishment?
One way to suggest how a disability should play into the disciplinary process involves copying the rights that K-12 students with disabilities enjoy under IDEA. They benefit from a “Manifestation Determination” (11) which consists of a meeting held outside of the student conduct process to determine if the behavior for which the student is being disciplined is a direct result (manifestation) of the student's specific disability. Adopting this mechanism into college disabled student sexual misconduct would deal with many situations, with fairness and due process. It would guarantee that if the respondent, for example, causes some hostility for some women because he is abrupt as part of the oppositional defiance co morbid with his ADHD, he be treated entirely differently from branding him as a sexual predator. Likewise, if the respondent’s misconduct is found not to be a manifestation of the respondent’s disability, then the school can discipline that student to the same extent as it would any other. The IDEA scheme even provides for how to deal with severe behavior, meaning one that causes serious bodily injury that is found to stem from the manifestations of the respondent’s disability. (12). In that case the respondent is suspended--disability or not.
Third, yes, sexual misconduct is not just enforced with male bias in violation of Title IX but also with disability bias because those policies inherently hit the disabled harder. All respondents who can actually run to the Court to claim their college should not be allowed to expel them, have to show, under Title IX, evidence of irregularity in enforcement of sexual misconduct, which ideally would consist of data showing the school does nothing when any complainant says a female student committed sexual misconduct for their selective enforcement claim (13), or evidence of inaccuracy in the Title IX staff’s, which consists of what the Title IX staff actually say, like, for example “I never heard of a man getting raped”(14) for their erroneous outcome claim (15), or evidence of revenge from any college staff after a complaint of male bias for their Title IX retaliation claim. (16). In that same vein, evidence that the school’s facially neutral sexual misconduct policy hits disabled students in a harsher manner simultaneously shows male bias and ADA discrimination.
To weave the school’s treatment of the respondent’s disability as circumstantial evidence of the school’s male bias into these Title IX-based claims, data could well show that the school actually expels disabled students more (as opposed to doing nothing when a non-disabled woman is accused of rape), or that the Title IX staff stated something with animosity against the respondent, like “ADHD has nothing to do with the fact that the complainant finds you threatening,” (as opposed to exploring if the respondent’s disability accounts for the impetus of his alleged infraction) or, for revenge purposes, evidence that the school ignored the respondent’s accommodations, for example, by not providing more time for testing if the respondent is banned from campus but allowed to take class and tests remotely (to punish him for complaining while falsely promising a rosy world for the complainant). Any of that harsh(er) treatment of a disabled respondent infers that in ignoring the respondent’s disability’s impact on these stories, because of its male bias, the Title IX staff had pre-determined that the disabled respondent committed sexual misconduct. That is not allowed under Title IX.
In a more straight forward claim, for the school to ignore a known disability as they enforce an allegedly facially-neutral sexual misconduct policy on a disabled respondent is for the school to discriminate based on that disability. (17) Any of the examples above would count as the school’s disability discrimination. (18). Title IX staff have a responsibility to make sure that students with disabilities are not disciplined more harshly, or deprived of any accommodations available to them under the ADA or Section 504. (19) Sadly, in the rush to convict the male respondent, Title IX staff is likely to ignore the reality that a man with a disability—say ADHD with oppositional defiance, or a man on the spectrum, will not understand that his acts (that had no intent to cause sexual hostility) may be perceived by some as sexual hostility. That violates Section 504 in the college context. (20). That’s also the point of the examples at the top. The guy never meant any harm and never realized the career-ending consequence of his school’s application of the sexual misconduct policy. If the school ignores the disability-based lack of sexually hostile intent in the respondent’s conduct, the school should pay. (21).
Finally, the school makes a contract with the disabled student, through the promises of its Disabilities Office. (22) Again, in their rush to convict the disabled male respondent, Title IX staff is likely to ignore those promises and fail to address what role the disability plays in explaining and excusing the alleged hostility. That is breach of contract. And overall, none of this needs to happen, if the school just abandons its male bias and focuses on the special needs of each and every Title IX sexual misconduct respondent.
Raul Jauregui
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather survey of the Title IX topic. If you’re in this situation, in any way, consult a lawyer now.
As posted in Quora:
ENDNOTES:
1. That alone could make a difference in the outcome of the sexual misconduct investigation. Many respondents who experience male bias and then sue their school under Title IX because they are expelled report that the Title IX investigators both harassed and tried to lead them, something that would be more difficult to do if the respondent answered written questions rather than faced an auto-da-fé. See, e.g.,
“Such a system of adjudication can fairly be called inquisitorial. See Inquisitorial System, Black's Law Dictionary (11th ed. 2019) (defining "inquisitorial system" as a "system of proof-taking used in civil law, whereby the judge conducts the trial, determines what questions to ask, and defines the scope and the extent of the inquiry"). No doubt, this model of justice is not the one our founders chose for criminal trials.”
Haidak v. University of Massachusetts-Amherst, No. No. 18-1248, (1st. Cir., August 6, 2019). Available at: http://media.ca1.uscourts.gov/pdf.opinions/18-1248P-01A.pdf
2. Title IX of the Education Amendments of 1972, 20 U.S.C.A §1681 et. seq., available at: https://www.justice.gov/crt/overview-title-ix-education-amendments-1972-20-usc-1681-et-seq
3. Rehabilitation Act of 1973 § 504, 29 U.S.C. § 794(a) (2006). Available at: https://en.wikipedia.org/wiki/Section_504_of_the_Rehabilitation_Act
4. Americans with Disabilities Act of 1990, 12 U .S.C.§ 12101 (2006). Available at: https://en.wikipedia.org/wiki/Americans_with_Disabilities_Act_of_1990
5. Title IX provides students with accommodations:
“Question 3: What are interim measures and is a school required to provide such measures? Answer: Interim measures are individualized services offered as appropriate to either or both the reporting and responding parties involved in an alleged incident of sexual misconduct, prior to an investigation or while an investigation is pending.9 Interim measures include counseling, extensions of time or other course-related adjustments, modifications of work or class schedules, campus escort services, restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of campus, and other similar accommodations.”
See, September 2017, Q&A on Campus Sexual Misconduct, Office of Civil Rights, Department of Education, available at: https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf
6. 34 C.F.R. § 104.42 (2010) ("Qualified handicapped persons may not, on the basis of handicap, be denied admission or be subjected to discrimination in admission or recruitment ... "').
7. ld. § 104.43(a).
8. 29 C.F.R. §1630.2(i) (2010).
9. 42 U.S.C. §12131
10. 42 U.S.C. §12181(7)(J) ("The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce ... (,J) a nursery. elementary, secondary, undergraduate, or postgraduate private school, or other place of education"); See 28 C. F.R. §36.104 (2010) ("Place of public accommodation means a facility operated by a private entity whose operations affect commerce and fall within at least one of the following categories ... (10) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education .... ").
11. Codified at: 20 U.S.C. § 1415(k)(1)(e)(i). The Department of Education’s July 26, 2016 guidance, styled as a “Dear Colleague” letter on ADHD that focuses on school districts but which discusses the legal framework that might inform the behavior of colleges and universities, is available here: https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201607-504-adhd.pdf
12. The term "serious bodily injury" would be given the same meaning as 18 US.C. § 1365(h). 20 U.S.C. § 1415(k)(l)(G)(iii). For the purposes of IDEA "serious bodily injury” has the meaning given the term “serious bodily injury” under paragraph (3) of subsection (h) of section 1365 of Title 18, United States Code. "The term 'serious bodily injury' means bodily injury which involves (A) a substantial risk of death; (B) extreme physical pain; (C) protracted and obvious disfigurement; or (D) protracted loss or impairment of the function of a bodily member, organ, or mental faculty; ... " 18 U.S.C. § 1365(h)(3)(A)-(D) (2006).
13. To make out a selective enforcement claim, a plaintiff must allege facts sufficient to support a reasonable inference that “‘the severity of the penalty and/or the decision to initiate the proceeding was affected by [the respondent’s] gender,’” Yusuf v. Vassar College., 35 F.3d 709, 715 (2d Cir. 1994), and – more specifically – that gender was a “motivating factor.” Haidak v. Univ. of Massachusetts Amherst, 933 F.3d 56, 74 (1st Cir. 2019).
14. See, for example, the allegations in a case we handled against Drexel University, https://www.thefire.org/saravanan-v-drexel-university-2017-u-s-dist-lexis-193925-e-d-pa-nov-24-2017/
15. Respondents prove Title IX discrimination as erroneous outcome showing evidence “(1) that would ‘cast some articulable doubt on the accuracy of the outcome of the [Title IX] disciplinary proceeding’ and (2) show ‘gender bias was a motivating factor [behind the erroneous finding].’” Doe v. Trs. of Bos. Coll., 892 F.3d 67, 91 (1st Cir. 2018), quoting Yusuf, 35 F.3d at 715. This evidence can be “inter alia, statements by members of the disciplinary tribunal, statements by pertinent university officials, or patterns of decision-making that also tend to show the influence of gender.” Yusuf, 35 F.3d at 715
16. Respondents prove Title IX retaliation showing that they “engaged in activity protected by Title IX, that the alleged retaliator knew of the protected activity, that the alleged retaliator subsequently undertook some action disadvantageous to the actor, and that a retaliatory motive played a substantial part in prompting the adverse action.”
Frazier v. Fairhaven Sch. Comm., 276 F.3d 52, 67 (1st Cir. 2002)
17. It is probable that data showing schools enforce sexual misconduct policies against the disabled respondents more harshly exists because a disabled male, particularly one with ADHD, sits at the dangerous intersection of impulsivity and male bias. See, e.g., “However, gender patterns were found to vary across ADHD type on impairment measures of social problems, schoolwork difficulties, and self-esteem, with boys being generally rated as more impaired in the combined and hyperactive-impulsive groups but equally or less impaired in the inattentive group.”
Graetz, B.W., Gender differences among children with DSM-IV ADHD in Australia, J Am Acad Child Adolesc Psychiatry. 2005 Feb;44 (2):159-68. Available at: https://www.ncbi.nlm.nih.gov/pubmed/15689729/ [Emphasis added]. See also, “…rates of depression and anxiety may be higher, and physical aggression and other externalizing behaviors lower in girls and women with ADHD. Men with ADHD seem to be incarcerated more often than women with ADHD.” Rucklidge, J.J., Gender differences in attention-deficit/hyperactivity disorder.
Psychiatr Clin North Am. 2010 Jun;33(2):357-73, Available at: https://www.ncbi.nlm.nih.gov/pubmed/20385342 [Emphasis added]. Children and Adults with Attention-Deficit/Hyperactivity Disorder (CHADD) has a portal, and the specific discussion at Nos. 2, 10 on this link, hints at the problems that may underlie a report that a male with ADHD has, unwittingly according to him, crossed over into student sexual misconduct/Title IX territory: https://chadd.org/for-adults/workplace-issues/
18. A prohibition on disparate impact makes presumptively invalid any sexual misconduct policy that has a discriminatory effect on a protected category of persons, such as a racial group, or those with special needs, regardless of the policy's intent. In order to survive a legal challenge to the claim that the sexual misconduct policy discriminates against people of color or people with special needs, the school would have to prove that the policy is a necessity, meaning that it is the least discriminatory means of meeting its institutional needs. And that is interesting because while preventing sexual assault on campus is an educational necessity, so is not discriminating against the disabled. See, e.g., Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(k) (2003); Griggs v. Duke Power Co., 401 U.S. 424, 429-36, 431 (1971).
19. The protected status under Section 504 does not disappear during, nor is it trumped by, a sexual misconduct investigation and adjudication. Disabled students in college are always entitled to accommodations. It is very plausible that the school would need to provide the respondent with at least a lawyer and a psychologist to enable him to participate in the Title IX process. See, e.g., the DOE guidance on this point:
13. Does the nature of services to which a student is entitled under Section 504 differ by educational level?
Yes. …At the postsecondary level, the recipient is required to provide students with appropriate academic adjustments and auxiliary aids and services that are necessary to afford an individual with a disability an equal opportunity to participate in a school's program. Recipients are not required to make adjustments or provide aids or services that would result in a fundamental alteration of a recipient's program or impose an undue burden.
14. Once a student is identified as eligible for services under Section 504, is that student always entitled to such services?
Yes, as long as the student remains eligible. The protections of Section 504 extend only to individuals who meet the regulatory definition of a person with a disability.
U.S. Department of Education, Office of Civil Rights, Frequently Asked Questions About Section 504 and the Education of Children with Disabilities, Available at: https://www2.ed.gov/about/offices/list/ocr/504faq.html
We have commented on how the school should provide everyone with a lawyer to ensure the due process and fairness of a sexual misconduct process here:
https://www.studentmisconduct.com/news/2016/6/27/blog-post-05-harris
20. See, e.g., Mark C. Weber, A New Look at Section 504 and the ADA in Special Education Cases, ABA Children’s Rights Articles, May 23, 2011, available at: https://www.americanbar.org/groups/litigation/committees/childrens-rights/articles/2011/new-look-section-504-ada-special-ed-cases/
“However, disciplinary protections for students with disabilities are also provided under section 504, and in some respects may be greater than those in IDEA. The grandparent of all special education discipline cases is S-1 v. Turlington, 635 F.2d 342, 350 (5th Cir. 1981), which relied on section 504 as well as IDEA in holding that a student with a disability may not be expelled for misconduct that results from the disability itself, and that, before any proposed expulsion, "a trained and knowledgeable group of persons must determine whether the student's misconduct bears a relationship to his" or her disability. This right to manifestation review is necessarily entailed by the duty not to discriminate on the ground of disability.”
21. Not to be overlooked, these lawsuits provide the successful respondent with payment for his legal bill on top of the normal damages.
22. See, e.g., https://disabilityresources.temple.edu/academic-accommodations-and-modifications, https://drexel.edu/oed/disabilityResources/overview/, https://www.vpul.upenn.edu/lrc/files/1ADHD%20Documentation%20Guidelines.pdf