Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et seq., is a federal civil rights law that prohibits discrimination based on sex in federally funded education programs. Title IX applies to public kindergarten through grade 12 schools as well as public and state colleges and universities. The law states:
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
Federally funded schools must protect against discrimination during admissions, athletics, obtaining benefits, and employment. Sexual harassment or assault are also violations of Title IX. If the school knows about such an act, it must investigate and remediate the situation even if no student makes a complaint. This places schools in a broad quasi-judiciary and investigative role, following vague federal rules and regulations.
If a school knows about an incidence of sexual harassment, assault, or violent, it is obligated to:
· Investigate
· End sexual violence and prevent it from recurring
· Address the effects of sexual violence
· Protect the complainant
· Provide grievance procedures
What Sanctions Can Schools Impose Under Title IX?
The Clery Act, a consumer protection act that seeks to provide transparency around campus crime, requires that colleges list all possible sanctions that they may impose due to dating violence, domestic violence, sexual assault, or stalking. The Clery Act does not require colleges to list their sanctions for rape and acquaintance rape, leaving much to the individual institutions. As a result, penalties may vary widely from school to school. Penalties may include:
· A written warning
· Probation
· Suspension
· Changing dormitories or living arrangements
· Adjustment of schedules
· No contact orders
· Loss of job or change in employment status
· Losing scholarships
· Loss of tenure
· Restitution
· Counseling
· Requiring a formal apology
· Revoking or withholding a degree
· Expulsion from school
If a student is found guilty of sexual misconduct under Title IX, the school should consider:
(1) how to best enforce the school's code of conduct;
(2) the impact of separating a student from their education; and
(3) whether the sanction is a “proportionate” response to the violation.
This is a subjective determination.
What are Fair and Proportionate Sanctions?
While imposing a “fair and proportionate” sanction for sexual misconduct seems like a reasonable standard, in practice, colleges interpret this in widely different ways. For example:
- In 2012 when Michigan State University adjudicators found a student guilty of sexual misconduct, the school imposed probation and sexual harassment education counseling. The school also barred him from contacting the victim or entering the dorm where she lived.
- In 2014, a male student at the University of Kansas admitted to continuing to have sex with a female classmate after she asked him to stop and said, “no, I can't do this.” The university imposed probation, a ban from university housing, mandatory counseling, and writing a four-page paper reflecting on the incident.
- In 2014, after a sexual assault, the University of California at Santa Barbara suspended a student for three months but did not include the violation on his transcript.
- In 2014, Brandeis University found a student guilty of sexual assault and punished him with a warning and sensitivity training.
- In 2017, Purdue University expelled three football players for sexual assault.
As you can see, handing down a “fair and proportionate” punishment is primarily left to the school's discretion. That being said, the first four examples above are by far the exception and not the rule.
If a respondent is found responsible for non-consensual sex of any kind, the sanction will almost always be expulsion. If a respondent is found responsible for any kind of non-consensual penetration (outside of sex), the sanction will almost always be a suspension at a minimum. Aggravating factors which can turn a potential suspension into an expulsion would include any finding of violence perpetrated by the respondent against the complainant and/or other factors which would make the "tone" of the case more egregious.
Whether due to a school not properly informing an accused student, naivete on the accused student's part, or a combination of circumstances, accused students and their parents often have a misunderstanding of the potential consequences regrettably. A warning, a requirement to complete counseling, or probation are by far the exception and not the rule for any sanction where a respondent is found responsible. The baseline is suspension at an absolute minimum in the vast majority of cases and an accused party must understand what is at stake.
Nationwide Title IX Defense
If someone accuses you or a loved one of a Title IX violation, you should consult an experienced Title IX advisor. Attorney Joseph D. Lento is an experienced education attorney and has handled hundreds of Title IX cases across the country, doing everything possible to ensure his clients receive due process and the best possible outcomes.
Contact Joseph D. Lento at 888-535-3686 to learn how he can help.
