We reported in May on a decision by a panel of the Fourth Circuit to throw out the Title IX claim of students at the University of North Carolina on the women’s soccer team who alleged that they had been subjected to ongoing sexual harassment by their coach. Now it turns out we were not alone in questioning this ruling; some members of the Fourth Circuit itself apparently have their doubts about it. On June 8, the Fourth Circuit granted rehearing en banc – that is, re-argument of the case before all 12 judges on the court. This means the panel decision is no longer binding, so that’s very good news. But while it takes a majority of the active judges on the court to vote for rehearing, we won’t know what they think about the merits of the case until they issue an en banc decision. In our view – and that of the dissenting judge the first time around -- the plaintiffs should have been given a chance to convince a jury that the coach took advantage of his position of power and created a sexually hostile environment in violation of Title IX. We will be watching closely to see if a majority of the Fourth Circuit agrees.
