Title IX was an amendment established by the U.S. Department of Education in 1972 to address concerns regarding sexually-based discrimination in all academic institutions. All schools are responsible for creating processes and procedures that promptly and equitably handle allegations of possible sexual misconduct that could hinder the learning process, create a hostile environment, or unfairly exclude someone. Those who may face the Title IX disciplinary process include students, staff, faculty, and others that are associated with the school.
Acts of sex or gender-based discrimination may potentially occur in various areas, including the admissions process, athletics, accessing scholarships, and more. Title IX prohibits forms of sexually-based harassment including making appeals for sexual favors, inappropriate advances, slurs, or false stereotypes about someone's “actual or perceived sex.” Gender-oriented harassment may be committed verbally or non-verbally and often involve bias and intimidation. Acts of sexual violence are among the most serious violations such as rape or coercion that also may have criminal implications.
Schools are all required to designate a Title IX Coordinator that will create and maintain their Title IX written guidelines, which should be reasonably accessible to all within the college or university community. Upon receipt of a complaint, college or university administrators will begin to investigate. If it is determined that the evidence supports the allegations, they may summon all parties to a hearing. Students who are found to have violated Title IX can expect to be suspended or dismissed from the institution.
Role of a Title IX Adviser
All parties associated with a complaint are permitted to choose an adviser that will support and accompany them to all proceedings. Accused students must discuss the matter with an experienced attorney-adviser regarding potentially serving in this role. An attorney can approach these allegations from a fresh perspective and ensure your rights to due process are well-protected.
Institutional Liability and Deliberate Indifference
The Department of Education has continued to guide a school's potential liability following possible incidents of sexual harassment that violate Title IX. Their findings establish that this determination is partly based on whether the school responded reasonably. For example, if a school employee is informed of sexual harassment that was severe and had created a hostile environment for the victim.
To establish liability, it must be shown that a responsible employee had “actual” or “constructive” notice. Next, it must be shown that the school's response upon having actual notice was so insufficient that it demonstrated deliberate indifference. A deliberately indifferent response is one that is unreasonable based on the situation. A school would not be liable if the response to a Title IX complaint was “not clearly unreasonable.”
Notification of Proper School Official in Title IX Liability Cases
In cases involving teacher-on-student harassment, the institution may only be liable for failing to properly respond to a complaint when an “official of the school district” had been notified. The Fourth District stated that a school principal or other employee that has the “authority to institute corrective measures” must have been notified to be deemed liable. Notifying another teacher regarding suspicion of teacher-on-student harassment would not be sufficient because no supervisor or higher-ranking employee was informed.
Responsibility or Liability in Cases Involving a Complainant Requesting Confidentiality
How should schools respond to a complaint made by a victim that requests confidentiality? There are concerns regarding the potential effectiveness of actions to address the complaint without revealing the identity of the complainant. Also, if schools fail to recognize requests for confidentiality, other alleged victims may be hesitant to make a complaint. If a school proceeds with a Title IX investigation without informing the respondent of the identity of their accuser, are they violating the due process rights of the accused party?
Recent guidance explains that schools must seek to find a balance in these scenarios. Victims may be less inclined to report incidents, while the school may find themselves unable to effectively investigate; meanwhile, the respondent may not be able to properly defend against the allegations. Federal guidance suggests making an effort to limit public disclosure of the complainant's identity, but only to the “extent necessary to carry out a thorough investigation.”
School Responsibility to Remedy the Effects of Harassment
Are schools responsible to pay for services such as counseling necessary to remedy the harm caused to a student resulting from harassment? Recent guidance states that in cases of students harassing other students, the school's responsibility for such remedial action is based on the “speed and efficacy of the school's response” after being informed. If the school's response was timely and sought to stop and prevent future harassment, the school should not be responsible to pay for counseling or other professional solutions. However, if the school has failed to promptly respond to a student's complaint of a continual harassment, they are responsible for doing what is necessary to remedy the effects (harm) that could have been prevented.
Why is it Important to Retain Experienced Title IX Advisory Representation?
Students facing allegations of sexual assault, harassment, or other forms of misconduct at a college or university may have harsh sanctions imposed if the allegations are proven. The student may be suspended or dismissed from the institution and the student's educational records or transcripts will likely contain a notation indicating that disciplinary measures were taken. This may create longer-term challenges in being admitted to another school, accepted into a graduate-level program, and create other future problems.
Respondents are strongly encouraged to speak with a Title IX attorney-adviser that is familiar with this area of practice, as the ramifications can be very detrimental to your future. Some of the benefits include:
- The evidence will be subjected to greater scrutiny and weaknesses or inconsistencies may be uncovered
- The unique provisions of your institution will likely be more accurately interpreted
- He or she may enter into discussions with the administration to discuss potentially amicable resolutions
- You are more likely to be better prepared to deliver clear statements and confidently respond to questions
Joseph D. Lento has an understanding of what is at stake and will work to develop an effective strategy that pursues a positive outcome. Please contact the office today at (888) 535-3686 for more information.
