Schools and universities can make mistakes when it comes to reports of sexual harassment or sex discrimination. University administrators may try and cover up complaints of sexual assault against faculty. Alternatively, a college may be too aggressive in responding to a complaint and punish someone who was falsely accused of assault. When someone is a victim of the school's improper investigation of harassment, they may be able to file an appeal to reverse the decision and get compensation for their damages.
If you are a student and your school did not properly respond to a Title IX complaint you filed or a complaint that was made against you, contact Title IX advisor Joseph D. Lento today for assistance.
Title IX Rights and Appeals
The appeals process for a Title IX complaint depends on the type of complaint and how the initial complaint was filed and how the school responded.
What is Title IX?
Title IX is a federal civil rights law that forbids gender-based discrimination committed by or against students, staff, or faculty. Named after a statute in the of the Education Amendments of 1972, Title IX prohibits sex discrimination in educational institutions that receive federal funding.
“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.”
Title IX protections extend to students, staff, and faculty at most educational schools or institutions, including elementary schools, secondary schools, colleges, universities, and charter schools.
Prohibited discrimination under Title IX can include sexual harassment, sexual violence, or unequal opportunity. Schools are generally required to have a coordinator to handle investigating and responding to Title IX violations and monitor compliance with federal laws. However, each school's individual Title IX policy and process may be different.
Sexual Harassment
Sexual harassment is unwelcome conduct of a sexual nature. Sexual harassment in an educational setting includes any unwelcome sexual advances, requests for sexual favors, and other conduct of a sexual nature.
Sexual Violence
According to the Department of Education Office of Civil Rights (OCR), sexual violence refers to physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent. Lack of consent can include the use of drugs or alcohol, intellectual disability that prevents one from having the capacity to give consent, and a person who is under the age of legal consent. Sexual violence can include rape, sexual assault, sexual battery, sexual abuse, and sexual coercion.
Gender-Based Harassment
Gender-based harassment is unwelcome conduct based on a student's actual or perceived sex. Harassment may include gender-based slurs, taunting, stereotypes, physical threats, attacks, bullying, or other hateful conduct.
Equal Opportunity in Athletics
School districts, colleges, and universities are required to provide an equal opportunity for students in sports and athletic programs, including providing equipment, supplies, and recruitment opportunities.
Making a Title IX Complaint
When someone is unlawfully harassed or discriminated against based on gender, they may have a few options. This includes:
- Going through the school's Title IX process,
- File a complaint with the Department of Education, Office of Civil Rights (OCR), or
- File a civil lawsuit.
If either party is not satisfied with the way the school handled the complaint or the decision made by the school or the court, they may be able to appeal the decision through the school's process or through filing an appeal in court.
Can You Appeal a Title IX Decision?
You can appeal a Title IX complaint decision. The appeal will depend on the school's individual procedure and the basis for appeal. Your options for filing an appeal may include:
- File an appeal through the school or university's appeals process, if the school provides for an appeal process.
- File an appeal of the OCR's determinations.
- File a civil lawsuit in federal court.
- File an appeal of the civil court's decision.
What is the College or University's Appeals Process?
Each college, university, and school district have their own Title IX policies and procedures. Title IX does not require that a school provides an appeals process. However, the OCR recommends schools provide for an appeals process where:
- There is a procedural error;
- Where previously unavailable relevant evidence could significantly impact the outcome of a case; or
- Where a sanction is substantially disproportionate to the findings.
If a school does provide for an appeals process, the school must do so equally for both parties, the accuser and the accused.
Can the Complainant Appeal a Title IX Decision?
If a school chooses to provide for an appeal of the findings or remedy or both, it must do so equally for both parties. The complainant is the person who files a complaint with the school or OCR. If the complainant is not satisfied with the findings of the investigation or the school's proposed remedy, the complainant can file an appeal with the school, if the school has an appeals process.
For example, even if the school found there was sufficient evidence of a violation, the complainant may not believe the steps taken were sufficient to address the incidents in question or did not restore a nondiscriminatory environment.
If the complainant filed a complaint with the Department of Education OCR, and the complainant was not satisfied with the resolution of the case, the complainant can submit an appeal of OCR's letter finding insufficient evidence of a violation.
If OCR fails to take action after a finding of no evidence of a violation, the complainant can also file a federal lawsuit against the school for a Title IX violation.
Can the Respondent Appeal a Title IX Decision?
Just like for the complainant, if a school chooses to provide for an appeal of the findings or remedy or both, it must do so equally for the respondent. The respondent is the party who is generally accused of some wrongdoing in a Title IX complaint. If the school makes a finding that the respondent committed sexual discrimination or harassment, the respondent can file an appeal with the school, if the school has an appeals process.
If the respondent is not satisfied with the outcome of the school's remedy, findings, or how the school handled the Title IX investigation, the respondent may be able to file a federal lawsuit against the school for a Title IX violation.
How to Appeal a Title IX Decision?
In filing an appeal of how the school handled the Title IX complaint, the specific design of the appeals process is up to the school.
As an example, UPenn has published student disciplinary procedures for resolving complaints of sexual misconduct. The policy provides that a sexual misconduct panel decision is subject to appeal by either party. The appeal must be made in writing to a Disciplinary Appellate Officer (DAO). Appeals are to be submitted within 10 business days after the decision of the panel.
“Letters of appeal should specifically state whether the objection is to the judgment of responsibility, the sanction, or both, and explain in detail the grounds for appeal.”
Under the policy, the DAO will review the investigators' report, supporting evidence, panel hearing record, and any other material the DAO deems relevant. The DAO will review the decision to ensure the process was consistent with the university's policy and that the result was not arbitrary or capricious. The DAO is to promptly issue a decision in writing to all parties.
Where Do I File a Title IX Appeal?
If your school provides for an appeals process, you should be notified of the appeals process after the hearing. Your school, college, or university should also provide a copy of the Title IX procedures, which should detail how to file an appeal and the grounds to file an appeal.
Can I Appeal an OCR Decision?
If a complaint is filed with OCR, first, OCR will determine if it will investigate the complaint. If OCR accepts the claim to be investigated, it will issue letters of notification to the complainant and the recipient. During the investigation, OCR is supposed to act as a neutral fact-finder. OCR will gather information to determine if there is a possible violation. Even if OCR finds that there may have been harassment or a sexual assault, OCR may try and get the parties to come to a mutual agreement over what to do.
OCR acts like a mediator in many situations. OCR attempts to get the parties involved to come to a mutual agreement. Schools are often looking to comply and will follow OCR suggestions and remedies. By following OCR's recommendations, the school or university is protecting itself against further legal action. However, even if the school voluntarily complies with OCR, it does not mean that the school did not violate Title IX. Students, faculty, and teachers may still have a claim against the school for Title IX violations.
OCR Complaint Appeals
OCR affords complainants an opportunity to appeal a determination based on a finding of noncompliance and dismissals. You can file an OCR appeal electronically, by mail, or fax. The filing date of an appeal submitted by mail is the date the appeal is postmarked or submitted electronically or by fax.
The complaint itself should be filed with the applicable OCR office. The headquarters in located in Washington, D.C., but there are 12 satellite offices which have jurisdiction over cases based on the state where the college or university or other institution is located.
Mail: Office for Civil Rights, U.S. Department of Education, 400 Maryland Avenue SW, Washington, D.C. 20202.
E-mail: [email protected];
Fax: 202-453-6012;
- Boston Office: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont
- Chicago Office: Illinois, Indiana, Iowa, Minnesota, North Dakota, Wisconsin
- New York Office: New Jersey, New York, Puerto Rico, Virgin Islands
- Cleveland Office: Michigan, Ohio
- Philadelphia Office: Delaware, Maryland, Kentucky, West Virginia
- Kansas City Office: Arkansas, Kansas, Missouri, Nebraska, Oklahoma, South Dakota
- Atlanta Office: Alabama, Florida, Georgia, Tennessee
- Denver Office: Arizona, Colorado, New Mexico, Utah, Wyoming
- Dallas Office: Louisiana, Mississippi, Texas
- San Francisco Office: California
- District of Columbia Office: North Carolina, South Carolina, Virginia, Washington, D.C.
- Seattle Office: Alaska, American Samoa, Guam, Hawaii, Idaho, Montana, Nevada, Oregon, Washington and the Northern Mariana Islands
Grounds for a Title IX Appeal
An appeal is not a chance to have the case heard all over again. Grounds for an appeal of the OCR process requires a showing of why the complainant believes:
- The factual information was incomplete or incorrect,
- The legal analysis was incorrect, or
- The appropriate legal standard was not applied.
In addition, the complainant must show how correction of any errors would change the outcome of the case. Failure to make a showing may result in dismissal of the appeal.
An appeal must be submitted within 60 calendar days of the date indicated on the letter of finding or the dismissal. However, a waiver of the deadline may be granted where the complainant was unable to submit the appeal because of illness or other circumstances, or because OCR's action has adversely affected the complainant's ability to submit the appeal timely.
After the complainant files an appeal, OCR will forward a copy of the appeal to the recipient. The recipient has the option to submit a response to OCR. Any response must be submitted to OCR within 14 calendar days of the date that OCR forwarded a copy of the complainant's appeal to the recipient.
OCR will issue a written response to an appeal. A decision of the OCR Office Director constitutes the agency's final decision. The final decision will inform the complainant that he or she "may have the right to file a private suit in federal court whether or not OCR finds a violation."
What if OCR Denies the Appeal?
If OCR denies the appeal, you may be able to file a federal lawsuit against the school or administrators for Title IX violations. The complainant generally does not even need to wait until OCR makes a finding to file a civil lawsuit. The complainant may have the right to file a federal lawsuit regardless of OCR's findings.
What if My School Denies the Appeal?
If your school denies the appeal, you may be able to file a federal lawsuit against the school or administrators for Title IX violations. You do not need to wait until the school or makes a finding to file a civil lawsuit. The complainant may have the right to file a federal lawsuit regardless of the school's findings or appeal outcome.
Why Should I Appeal the Title IX Findings?
There are a number of reasons why someone may want to appeal the Title IX findings. When a school mismanages a Title IX complaint, it could end up hurting multiple parties, including:
- The complainant,
- The accused,
- Other students,
- Other teachers, and
- Other faculty.
A poor response to a complaint could also leave students, faculty, and teachers with less confidence in how administrators handle complaints. This could embolden abusers, make victims feel like they do not have a right to be free of harassment, or intimidate innocent people who may be falsely accused of serious offenses.
An appeal is a way to hold the school and administrators accountable for their actions. Title IX complaints can be serious and could put the accused and the accuser at risk of further harassment or retaliation. The schools and universities have a duty to those involved in a complaint, both to the accuser and to the accused. The parties in a complaint have the right to:
- Be treated with respect and dignity;
- Be notified of the allegations made;
- Have access to the school's Title IX policy;
- Privacy (within the confines of school policy); and
- A prompt and thorough investigation of allegations.
Most people just try to deal with an unjust system after they have fallen victim to their school's mismanagement over a Title IX complaint. However, this leaves the victim paying the price and does nothing to hold the school accountable. Before just letting the school administrators get away with unjust treatment, consider the harm that you may be suffering.
Harm to Reputation
Some schools are too quick to act against the accused. The accused in a Title IX complaint deserves due process, including privacy and a prompt investigation. When the administrators leak information about the allegations or do not stop others from making false claims against the accused, it can lead to irreparable harm.
An innocent teacher, faculty member, or student who is accused of harassment, sexual assault, or discrimination may face harm to their reputation in the school and the community. Those accused of Title IX violations have the right to defend themselves against unjust accusations.
Failure to Take Action
Schools are generally required to take action after a complaint of abuse or harassment. Failure to take action puts other students at risk of harm. Some schools show a pattern of failing to respond to complaints, leaving victims and other students at risk of further harm because the administrators value the school's reputation over the safety of the students.
This is one of the reasons why Title IX provides a cause of action against schools that do not respond to sexual assault claims. When the school is threatened with losing money, that may be the only motivation for the administrators to take action.
Retaliation Against Victim
It is not easy for victims of sexual violence, sexual assault, and harassment to come forward to report what happened. Victims may fear they will be blamed, there will be action taken against the perpetrator, or the school will side with the perpetrator over the victim. Individuals who make a good faith report of wrongful conduct should not be subject to retaliation from any member of the faculty, staff, or student body.
Universities and colleges can not intimidate, threaten, coerce, or retaliate against anyone who asserts a right protected by Title IX civil rights laws, or who cooperates in a Title IX investigation. Anyone who believes that he or she has been intimidated or retaliated against can file a complaint with OCR.
Privacy Violations
There are strict privacy policies for those involved in Title IX complaints. Unfortunately, the administrators may not always play by the rules. The administration may prematurely leak private information about a student, staff member, or teacher who is accused of sex discrimination.
The school may also fail to stop others from leaking private information about the accused or the accuser. Once the information has been leaked, it may be impossible to repair the damage to the individual's reputation.
Loss of Your Job and Income
Accusations of sexual misconduct can ruin a school teacher or faculty member's career and their future. Before starting or finishing an investigation, the administrators or Title IX coordinator may violate an employee's rights by appearing to be tough on harassers. The respondent in a Title IX investigation still has the right to privacy, transparency, and a prompt and thorough investigation.
An improper investigation or mishandling of the complaint can ruin an innocent person's life. Especially in education and academia, other schools may not be willing to take a chance on hiring someone who had a past allegation of sexual harassment, even if there was no adverse finding against the accused.
Example:
Charlie and Murphy are freshmen at a state university. Charlie is about to fail and approaches Murphy about helping to cheat on the final exam. Murphy will not help Charlie cheat and says, “no.” Charlie fails the test. To get revenge, Charlie falsely claims Murphy sexually assaulted Charlie.
The school's sexual violence coordinator does not like Charlie. The coordinator tells other administrators, faculty, and students that Murphy sexually assaulted another student. Murphy's fellow classmates begin to retaliate against Murphy.
Murphy is eventually cleared of any wrongdoing but is forced to leave school. Murphy's reputation may have been seriously harmed because the school's Title IX coordinator failed to follow the Title IX process and made false allegations before the investigation was completed.
Cases of Title IX Appeals
The most important and significant Title IX cases often involve those cases which are appealed to the federal courts. The laws and guidance surrounding Title IX are changing all the time. This is why it is important to talk to a Title IX violation advisor who understands Title IX cases and stays up-to-date with the latest laws and developments.
Next Step in Filing a Title IX Appeal
A Title IX case can hurt your career and destroy your reputation. An appeal may be the only way to clear your name and get compensation for your damages. Even if the Title IX investigation and hearing found that you did nothing wrong, the way your school handled the investigation may be grounds for an appeal.
The next step in filing a Title IX appeal is to contact an experienced legal professional who understands the importance of challenging these hearings. Joseph D. Lento has extensive experience successfully protecting the rights of clients who have been accused of harassment or misconduct. Preserve your livelihood and contact Title IX advisor Joseph D. Lento today for assistance at 888-535-3686.
