U.S. Supreme Court Justice Elena Kagan has denied relief to a California high school student seeking to return to school after his district suspended him indefinitely under an “emergency removal” provision in Title IX regulations on sexual harassment.
The San Ramon Valley Unified School District removed the student identified in court papers as John Doe this past April amid allegations that he had sexually assaulted a female student on campus.
The district declared that Doe posed “an immediate threat to the physical health or safety” of another student and thus could be removed from campus under updated regulations adopted last year, during President Donald Trump’s administration, for Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools.
Doe, a 15-year-old freshman this past spring, denies the allegations that he had inappropriately kissed and groped his ex-girlfriend after their theater class on a day last April. He says in court papers that he had broken up just days earlier with the student identified as Jane Roe, via an exchange of text messages in which Roe purportedly sought to keep the relationship going. Only after the breakup did the female student make her allegations, Doe contends.
Doe argues that school officials did not have the evidence to support such a harsh remedy.
The high school principal, who was also the school’s designated Title IX coordinator, upheld her own emergency removal decision in May and confirmed that the order would remain in place for the beginning of the 2021-22 school year. Doe then sought judicial review and a stay of the district’s action in a California state court. The stay was denied by a Superior Court judge and state appellate court, and the California Supreme Court declined to take up the case.
That led to student’s application, in Doe v. California Superior Court (No. 21A28) for a stay to Kagan, the circuit justice for the federal 9th Circuit, which includes California.
Doe argues that the district lacked the evidentiary support for an emergency removal, and that his removal from his educational program violates the requirements set forth in a 1975 U.S. Supreme Court decision, Goss v. Lopez. In Goss, the court held that students subject to suspensions of 10 days or less must be given minimal due-process protections, and longer suspensions have been interpreted to require even greater due process.
“This request for a stay involves the irreparable loss of the benefits and experiences of high school,” Doe said in his application to Kagan. The filing says that absent some form of speedy court review, school administrators will be able impose an emergency removal any time an allegation of sexual harassment is made, even in the absence of an actual threat to another student.
Doe notes that the Superior Court judge denied his stay request but set a Jan. 7 date for a hearing on his emergency removal.
“Rather than an indefinite suspension under the guise of emergency removal, the district can simply have [Doe] avoid contact with Jane Roe and make sure they are not assigned to the same classes,” the male student says in his filing.
Doe’s filing also says his case “appears to be one of first impression challenging a public high school’s emergency removal of a student in reliance” on the 2020 federal Title IX regulation.
Kagan did not call for a response from the San Ramon Valley district before denying Doe’s application late on Sept. 3. But in an Aug. 6 filing in the state trial court, the district said the Title IX regulations give school officials flexibility to apply terms such as “individualized risk and safety analysis” and “immediate threat.”
“The district was not required to follow any specific process in the emergency removal so long as it made an individualized safety and risk analysis,” the school district argued.
The district also argued that a judicial stay was unwarranted because its emergency removal order was an interim decision pending a full investigation of the allegations. Doe was offered the option of enrolling in the district’s Virtual Academy or another independent study program for this fall.
“[Doe] will not be prejudiced in continuing in virtual instruction during the pendency of the Title IX investigation pursuant to the emergency removal,” the school district said in the state court filing.
The U.S. Department of Education, under an executive order from President Joe Biden, is reviewing all its policies and regulations for enforcing Title IX.