A Law in Flux: The Department of Education’s July 2021 Guidance on Title IX

You're a student, just trying to maintain your grade point average and figure out what you want to do with your life. Suddenly you find yourself accused of sexual misconduct. Your college sends you a letter explaining that it has initiated a Title IX investigation against you. You're angry, upset, scared. You probably have dozens of questions. Will you have to talk to the police? Will the school try to expel you? Could they suspend you now, while they investigate? What are your rights during this whole process?

We've designed this guide to try and provide some answers to important questions like these. Here's the unfortunate reality, though: many of these questions don't always have clear answers. That's because politicians, judges, lawyers continue to fight over just what the law says.

Title IX, the federal law schools use to investigate and prosecute most instances of sexual misconduct, has been in a constant state of flux, almost from the moment it was passed in 1972. Members of both parties in Congress have tried to change it; the courts have weighed in on what it means; presidents have used their authority to try and dictate how it is enforced.

In fact, the debate over Title IX has reached a fever pitch in the last five years. As the arguments from all sides have grown louder, confusion over the law has grown as well.

In July 2021, the Department of Education's Office of Civil Rights released a brand-new document with the rather unwieldy title, “Questions and Answers on the Title IX Regulations on Sexual Harassment.” As that title suggests, the document is a set of “questions and answers” meant to clarify how Title IX is supposed to work. Unfortunately, it didn't accomplish that task. It's certainly thorough enough. The document is 67 pages long, addresses 67 separate questions, and includes an extensive appendix. Yet, it ultimately raises more questions than it answers.

Our goal here is to untangle some of the confusion over Title IX. We put the document into historical context, look at its central arguments, and draw some conclusions about what impact it might have on current Title IX investigations.

The bottom line, though, is that if you have been accused, the very first thing you should do is contact a qualified Title IX attorney. You'll discover as you read through this guide that the law is complex and, as we've just suggested, the debate over how it should be used is far from settled. Educating yourself about the law is an important first step in defending yourself. You also need someone on your side, though, someone who can navigate through these complexities, protect your rights, and get you the best possible outcome for your case.

A History of Change

To understand Title IX today, you first need to understand its history since that history shows just how and where all the confusion got started.

A Necessary Corrective

Title IX was passed by the US Congress in 1972, one of several “education amendments” meant to bring greater equality to American education. Title IX specifically was aimed at eliminating sexual discrimination and harassment at elementary, secondary, and post-secondary institutions. As such, the law was a crucial step forward in the struggle for women's rights.

Prior to its passage, colleges and universities could sometimes be openly hostile towards women. In fact, some schools had only recently admitted women. Others still had strict regulations about where women could go on campus, how late they could be out, even what subjects they could study. Title IX demanded all students be treated equally, regardless of their sex.

The law worked extraordinarily well. The numbers tell the story. At the time it was enacted, only 43% of college students were female. Today, that number is 57%. Today, schools in this country are among the most welcoming institutions for women in all of American society, bastions of liberalism and home to countless feminist studies programs.

A Matter of Interpretation

As necessary as the law was, however, and as much as it has done to advance the cause of women's rights, there were problems with Title IX right from the start. Chief among these: it was written so generally that it left too much open to interpretation. Certainly, the law's broad intent is clear enough. The central text of Title IX reads,

“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.”

There is no ambiguity as to the meaning of this sentence: everyone is entitled to an education regardless of what their sex might be.

Yet, if the law's goals were clear, how these goals were to be achieved was not. Right away, for instance, legislators began debating the meaning of the phrase “education program or activity.” Did that phrase include sports? If so, the law seemed to suggest men's and women's athletic programs must be treated equally. That made a number of sports fans uneasy. What might happen to college football, for instance, if the federal government insisted schools have equal numbers of male and female athletes, give each the same number of scholarships, and fund programs at the same level?

Athletics has remained a high-profile subject of contention, one that has not yet been completely resolved. Other Title IX debates quickly flared up as well, though. One of the most important had to do with the string of phrases “be excluded from participation in, be denied the benefits of, or be subjected to...” The wording here is noticeably passive voice. In other words, the law doesn't specifically identify who exactly is prohibited from “excluding,” “denying,” and “subjecting.” Obviously, those prohibitions would seem to apply to “any education program or activity receiving Federal financial assistance.” In simplest terms, the law barred schools themselves from discriminating against anyone on the basis of sex. A school couldn't, for example, deny women admission or restrict what women could study.

Just as obvious, the law would seem to apply to representatives of the school, faculty, and administrators. After all, a school is the people who work there. Just as schools weren't allowed to restrict entry based on sex, it was logical to assume professors couldn't show preferential treatment to male students in their classrooms.

Things become a little trickier when it comes to a school's students. If one student discriminates against another, is the school itself guilty of discrimination? Could the school in that situation be said to be in violation of Title IX? The logical answer would seem to be no. Students, after all, are a school's “customers.” Wal-Mart isn't responsible if one of its customers decides to assault another one. However, when it comes to schools, the answer that developed over time was, yes, schools were responsible for their students' behaviors. In other words, colleges and universities have an obligation under Title IX to make sure their students don't engage in discriminatory practices.

That answer made schools responsible for disciplining their students. Title IX itself included a powerful enforcement mechanism. The federal government vowed to withhold funding from any school that refused to cooperate with its campaign for equality. That mechanism only applied to schools themselves, though, not to their students. Schools were required to come up with their own methods for dealing with sexual discrimination. They weren't given any guidance about how to do this, though. As might be expected, every school created its own unique set of policies and procedures. As might further be expected, that resulted in total confusion.

More questions about Title IX followed, many of them only provisionally settled through long and contentious court cases. What did “shall not be” mean, for example? Did that phrase mean “should not,” as in “schools should do the best they can to prevent discrimination”? Or did it mean “must not,” as in “schools will be held to a zero-tolerance standard and any incident will be held against them”?

  • Were schools expected to eliminate discrimination altogether? If so, how were they supposed to do this?
  • Would schools be punished if discrimination continued among the student body despite their best efforts to discourage it?
  • Were schools merely responsible for investigating complaints made to them, or were they required to proactively organize campus campaigns to end discrimination?
  • Could a school's record of handling discrimination cases be used to cut its funding?
  • Were faculty and students required to report discrimination?
  • Were schools required to investigate formal complaints, or were they required to investigate any potential incident, whether someone lodged a complaint or not?

None of the answers to these questions was simple, and many of them have yet to be completely resolved.

Discrimination?

Perhaps the most important question, though, was how to define the word “discrimination” itself. In normal usage, that word means giving certain groups—in this case, men—preferential treatment over others. As Title IX has evolved, though, discrimination has come to mean something much broader. In fact, the courts have defined this term as any action or behavior that puts a student at a disadvantage because of their sex.

That interpretation has enormous implications. It means that Title IX applies not just to “discriminatory” behavior but to “harassing” behavior, since sexual harassment can interfere with a student's ability to get a fair and equal education. Under that definition, Title IX doesn't merely govern instances of sexual discrimination, then. It also dictates how schools respond to far more serious crimes, including stalking, assault, even rape. The consequences of this interpretation are far-reaching: physics professors and third years art students wind up hearing cases that even seasoned judges struggle to decide.

Presidential Interpretation

It's not just the courts that have shaped Title IX, however. Presidential administrations have played a crucial role in interpreting the law, especially over the past twenty years. To some extent, this began with the Clinton administration. In the late 1990s, the Supreme Court issued a string of decisions, all of which restricted the rights of complainants to sue schools in federal court. Basically, the court said schools were only liable if they had “actual knowledge” of sexual misconduct and acted with “deliberate indifference” to that knowledge. In response, the Clinton administration declared schools must not just respond to claims of discrimination but “prevent, eliminate, and remedy sexual harassment.” The message was clear: whatever the courts might say, the Department of Education would hold schools to a higher standard.

Ten years later, in 2011, the Obama administration made another bold move. In what has come to be known as the “Dear Colleague” letter, Obama's Department of Education sought to lay new ground rules for how schools should treat Title IX complaints. Among these, the government required schools use the relatively weak “preponderance of evidence” standard for determining a defendant's guilt or innocence. That standard only required decision-makers to be just over 50% sure the accused committed the crime.

In addition, the letter expanded the definition of harassment to include “verbal conduct” like sexual comments or jokes, spreading sexual rumors, or creating sexually oriented websites. It further demanded that schools believe complainants, even if this meant pre-judging the accused.

What does all this history reveal? For one thing, it reveals the government's willingness to bend Title IX to its own purposes. Republicans and Democrats alike have consistently sought to use Title IX as a battering ram in support of their own ideological causes.

It is equally clear that the law has slowly become unbalanced in favor of complainants. To begin with, by tying investigations to funding, Title IX created a built-in incentive for colleges and universities to be aggressive—often too aggressive—in going after their own students. Meanwhile, the government has systematically stripped due process, rights normally afforded defendants in actual courts of law, away from student defendants. Prior to 2020, for instance, respondents at many schools weren't entitled to a hearing. Investigators were given authority both to investigate the allegation and render a verdict. Many Title IX investigators were trained to “believe the victims” first, presuming the accused to be guilty. In one famous case, a school even used training materials that said investigators should accept complainant lies as proof the complainants were telling the truth.

Perhaps most importantly, though, the history of Title IX demonstrates just how unsettled the law is. For now, at least, it seems to be subject to the whim of whatever presidential administration happens to be in power at the moment. That makes defending yourself from an accusation of sexual misconduct a particularly difficult proposition.

The Trump Changes

Donald Trump consistently demonstrated a willingness, even an eagerness, to wade into the middle of raging controversies. In 2020, he did so in relation to Title IX. In May that year, the Department of Education, under the direction of then-Secretary Betsy DeVos, issued a set of very specific guidelines for how schools should conduct Title IX investigations. These went into effect in August, with the start of the fall semester.

The guidelines were meant to provide a clear structure for investigations and hearings, outlining a process and setting up some very definite rules in the place of vague interpretation. Trump's argument was that the guidelines would standardize how schools dealt with sexual misconduct. At the same time, the administration clearly wanted to provide some important due process protections for defendants. Trump had already repealed many of the Obama-era edicts. This initiative went further.

The new rules changed Title IX in three important ways. First, they narrowed the definition of “harassment.” For example, the administration did away with the requirement that schools necessarily treat speech as a Title IX offense. Second, the new rules limited schools to investigating incidents that occurred on campus or as part of school-sponsored activities. Incidents between students in apartment complexes were excluded, as were incidents that happened overseas in exchange programs. Finally, the new rules gave the accused several important rights. Among these, schools were required to treat defendants as innocent until proven guilty. In addition, defendants now had the right to a hearing and to cross-examine any witnesses.

The guidelines might have brought order to a disordered system. Instead, they brought additional chaos. Like so much about the Trump administration, these guidelines were almost immediately controversial. Victims' rights groups decried them, claiming they put victims at risk. Several schools sued the federal government to prevent their implementation. All the 2020 Democratic presidential candidates, including Joe Biden, vowed to repeal them if elected.

As it turned out, Biden was elected, and almost immediately, he began the process of doing just what presidents before him had done: redefining Title IX. Experts say undoing what Trump did won't be easy, but Biden has already assembled a task force to work on the problem. That committee is set to deliver its recommendations in May 2022. Those recommendations will likely change the nature of Title IX yet again.

In the meantime, the Biden administration has made two important moves. First, in June 2021, the DOE extended Title IX protections to transgender students. Then, in July, the DOE's Office of Civil Rights issued a lengthy set of “Questions and Answers on the Title IX Regulations on Sexual Harassment.” Those questions and answers, like Trump's guidelines before them, were meant to bring order to chaos. Like Trump's guidelines before them, they haven't managed to succeed at that task.

Questions and Answers from the Biden Administration

Theoretically, the “Questions and Answers” document released by the Biden Department of Education in July 2021 is the most up-to-date guidance on how schools should implement Title IX. As a result, if you've been accused of sexual misconduct recently, this guidance will likely play an important role in how you are investigated and what rights you'll have.

What do these questions and answers actually say, and how do they offer yet another new interpretation of Title IX?

The Definition of Harassment

Early on, the document seems to accept the significant changes the Trump guidelines have wrought on Title IX. One of the first things it does is remind readers of the new, restricted definition for “sexual harassment.” As the document points out, there are currently three categories into which harassment can fall:

  1. “An employee of the [school] conditioning the provision of an aid, benefit, or service of the recipient on an individual's participation in unwelcome sexual conduct;
  2. “Unwelcome conduct, determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the school's education program or activity”;
  3. “Sexual assault” as defined by the Clery Act and the Violence Against Women Act.

Noticeably absent from this list: sexual comments, jokes, and other “verbal conduct” as the Obama administration had defined this phrase. In fact, the phrase “severe, pervasive, or objectively offensive” would seem to protect individuals from being accused under any but the most egregious circumstances.

Reassurance

Yet, beneath the apparent acceptance of the new Title IX guidelines, this newer document pushes back against them. In fact, this pushback begins even before the document defines “sexual harassment.” In the document's introduction, the DOE notes that it is intended to clarify the Trump administration's 2020 amendments, and more specifically, to answer “questions related to the most recent amendments to the regulations in 2020.” That seems like a reasonable objective.

However, it also says it is intended to be an “interpretation of schools' responsibility” under these new regulations. The message in this phrase is clear. In the document, Biden's DOE will do what it can to ameliorate what Trump's DOE put in place. Simply put, the document is intended to serve as cover for schools who decide to return to something like their previous policies. In some places, the document seeks to reassure schools. In others, it tries to give as much authority back to schools as it can. There are even spots, especially in the appendix, where the DOE seems to be deliberately pointing out loopholes in the Trump guidelines, loopholes schools are encouraged to exploit.

First, the document tries to reassure schools, to let them know that the new guidelines are not as extreme as they may at first appear.

  • Who can file a complaint?

The document acknowledges that the new guidelines limit who can file a formal Title IX complaint to the alleged victim, the Title IX coordinator, and—if the victim is a minor—the victim's parents or guardians. In addition, the school isn't required to accept complaints from anyone who isn't enrolled or trying to enroll in the school. Faculty can't lodge complaints on their students' behalf. Neither can administrators.

However, the document goes to some lengths to emphasize that complaints don't have to originate with complainants; they can also originate with Title IX coordinators.

  • Reluctant complainants

The Trump guidelines discourage coordinators from filing complaints on their own initiative, cautioning them not to override a complainant's wishes:

“We believe that complainants should retain as much control as possible over whether a school's response includes involving the complainant in a grievance process.”

Biden's DOE takes the complete opposite stance. The “Questions and Answers” document points out that coordinators may be “required” to file a complaint, even if the complainant and/ or the respondent are no longer enrolled at the institution.

  • Presumption of innocence

The document notes that under the Trump guidelines, respondents (defendants) must now be presumed innocent until proven guilty.

Once again, though, the DOE makes sure to point out that this stricture doesn't mean complainants' stories should not be believed. Instead, schools are asked to maintain a dual perspective, accepting both sides' stories until they can gather enough evidence to make a determination.

Further, schools are cautioned not to punish complainants if respondents are found “not responsible” unless those complainants acted in “bad faith.” Where the spirit of the new guidelines attempts to restore some balance to the Title IX investigation, this document does what it can to tilt that balance back in the claimant's favor.

  • Absent witnesses

Trump's guidelines specify that decision-makers (those judging the case) can only consider testimony from witnesses who are actually willing to testify at a hearing. Witnesses can't be compelled to testify. Further, witnesses cannot be excused even for disability or a death in the family. If a witness cannot appear, the decision-maker(s) must ignore their written statements.

Biden's DOE finds exceptions, pointing out that witnesses don't have to be physically present to testify but can do so via video chat. In addition, the DOE reminds schools in this new document that there is an exception in the guidelines that allows schools to postpone a hearing for a reasonable amount of time in extraordinary circumstances, time enough, the wording implies, to allow witnesses to attend a hearing. Finally, the “Questions and Answers” document reminds schools that some evidence—text messages, videos—don't need to be introduced by a witness. This includes video or audio evidence from persons who aren't actually testifying.

School Authority

Beyond providing reassurance, the document works to give as much authority as it can back to schools.

  • Older cases

The DOE notes that the new guidelines are not retroactive. That is, a school can—and, by implication, should—apply its prior policies whenever it possibly can. That includes incidents reported now that may have occurred before the new Trump rules were put into place.

  • Electronic harassment

The DOE reminds schools that, while Title IX no longer allows a school to investigate students for non-school websites and non-academic emails and texts, it can still pursue any claims related to electronic spaces if those spaces are connected in any way to the educational mission of the school. So, for example, a school might reasonably investigate a student in class for sending a harassing text to another student in the same class, even if the text doesn't concern classwork. Likewise, harassing comments on a course discussion board would be Title IX violations, even if they weren't posted during class time.

  • “Sexual discrimination”

The DOE notes that “sexual discrimination” isn't covered under the new guidelines. Schools still have the right to deal with simple discrimination cases—unequal classroom treatment, unfair admission standards—in any way they see fit. That is, they need to feel constrained by the new guidelines.

  • Going further

Schools can do more than what is required in the Title IX guidelines. Specifically, schools aren't prohibited from investigating and prosecuting any behaviors that violate their student code of conduct. This means that even if an incident doesn't fit the new narrower definitions of “sexual harassment,” schools can still pursue respondents. In fact, in such instances, they don't have to provide respondents with any Title IX protections, like a hearing. In short, schools must do at least what Title IX dictates, but this doesn't preclude them from being stricter if they so choose.

  • Defining “consent”

The DOE points out that schools can define “consent” for themselves. Here again, the Trump administration's intent seems to have been to allow schools to apply a relaxed standard of consent. Biden's DOE seems to be encouraging schools to use that same language as a justification for implementing harsh standards.

  • Determining time frames

Under Title IX, schools are allowed to institute their own time frames for completing an investigation and rendering a verdict. The Trump guidelines suggest they should do so “expeditiously,” but they don't impose any specific requirements. The Biden DOE suggests they take advantage of this vague language where they need to.

  • Choosing penalties

Schools also have the right to assign whatever penalty they choose. Here again, the DOE notes that the guidelines about punishments are vague. The guidelines suggest schools publish their sanctions but allow schools to tailor penalties to a given situation. The DOE wants schools to understand this gives them room to maneuver.

Identifying Loopholes

Finally, the document goes so far as to identify some important loopholes in the Title IX guidelines, loopholes a school might use to get around some of the current law's limitations.

  • Suspending the accused

The DOE points out that Title IX requires schools to offer victims some services and allows schools to define what those might be. The Trump guidelines specifically state that these services should not “unduly burden” the respondent. Among other things, schools are meant to avoid suspending defendants unless they have legitimate safety concerns for the campus. The DOE notes this but then reminds schools that they do still have the power to suspend the accused.

  • Mandated reporting

The Trump guidelines make clear that students and faculty are not required to report suspected Title IX violations. The DOE's new document suggests that, by the same token, schools aren't prohibited from making their own rules about reporting. That is, Title IX doesn't mandate reporting, but the school is perfectly within its rights to do that itself.

  • Standards of guilt

The Trump administration removed the Obama-era requirement that schools use the “preponderance of evidence” standard to determine guilt. Current Title IX rules allow schools to use the somewhat stricter “clear and convincing” standard. In addition, the Trump guidelines state that schools must use the same standard for both employee violations and student violations. This was one way of forcing some colleges and universities, those with faculty bargaining agreements in place, to use this stricter standard. In response, the current DOE offers this piece of advice: “work cooperatively with [your] employee unions to renegotiate the standard of proof used in employee sexual harassment investigations.” In simple terms, water down employee rights if it means you can more easily convict students.

  • Due process limitations

Finally, while the Trump guidelines provide defendants with the right to a hearing and to cross-examine witnesses, the new document takes some time to explain ways schools might limit these rights. The DOE even provides example language in the document's appendix for how a school might write these restrictions into its grievance policy.

So, for example, the DOE document suggests a school might institute “rules of decorum” to keep advisors in check. In addition, it notes that schools have the authority to restrict an advisor's role in a hearing: “a post-secondary school could limit the role of advisors to relaying questions drafted by their party.”

In the appendix, the DOE offers this example of how a school might write its policy:

“The role of the advisor is narrow in scope: the advisor may attend any interview or meeting connected with the grievance process that the party whom they are advising is invited to attend, but the advisor may not actively participate in interviews and may not serve as a proxy for the party. The advisor may attend the hearing and may conduct cross-examination of the other party and any witnesses at the hearing; otherwise, the advisor may not actively participate in the hearing.”

Of course, the most immediate impact of all this “interpretation” is to undo as much as possible what the Trump administration tried to accomplish. The larger impact, however, is to create more confusion about how Title IX should be implemented.

The Title IX Process

So, where does the Question and Answer document leave Title IX? That is, what exactly does the Title IX process look like for those who are facing it?

The Complaint

The first thing that happens in a Title IX case is that someone lodges a formal complaint against you. Faculty and administrators may report incidents they learn about, and the school may even force them to do so. However, only the complainant or the Title IX Coordinator may make an official complaint.

Nothing in Title IX specifies how your school must treat you once a complaint has been made. In most instances, though, they won't treat you well. They may, for example, send the campus police to arrest you in the middle of the night and lead you away in handcuffs. They may try to suspend you by claiming you are a “threat to the campus community.” They may try other tricks like disabling your email account, so you can't access important evidence.

Almost certainly, you will be treated unequally. Title IX requires your school offer services to the complainant, including medical care and counseling. The school can also offer them academic help. Your accuser might be allowed to take a leave of absence. They might be forgiven for class absences or even relieved of coursework. On the other hand, your school will likely do nothing for you other than apprise you of your rights.

The Investigation

Your school's Title IX officer will decide whether or not to pursue the case. Given the pressure the government puts on schools, though, you can be sure they will pursue it. Once they've made that decision, the Title IX officer will appoint an investigator to the case. Some schools hire outside investigators. Others appoint members of the campus police to serve this role. Ultimately, though, the school can appoint whomever they like, so long as the person doesn't have an obvious bias against you. Sometimes they provide investigators with minimal training, but even this isn't required.

The investigator will interview you and the complainant separately. The July 2021 document suggests schools don't have to allow your advisor to be present at these interviews. If your attorney can be there, though, they can advise you which questions to answer and help you decide what to say.

The investigator will interview any other witnesses as well and review any physical evidence in the case. This evidence might include text messages, clothing, even dorm logs—anything and everything that might have a bearing on determining what happened.

Once the investigation is complete, the investigator will submit a written report of their findings to both sides. You then have the chance to comment on what they've said before this document is submitted to the Title IX Coordinator.

The Hearing

Once the coordinator has examined the report, they will begin the process of setting up a formal hearing. Many schools use a panel of three to serve as “decision-makers” (judges) in the case. However, schools are allowed to choose a single decision-maker or a panel of twelve, again so long as judges have no clear bias towards either side. Typically, decision-makers are drawn from a pool of faculty and students who have been given some minimal training in the school's judicial procedures. However, you should not expect them to be experts on the law. Title IX is complex. Sexual misconduct cases can be even more complex. The panel may very likely make mistakes in administering justice.

The school must have a “standard of evidence” they use in all cases. They are under no obligation to prove you guilty “beyond a reasonable doubt” before they convict you the way a real jury must. Schools can, and virtually all do implement a far lesser standard of guilt. Most often, they use the “preponderance of evidence” standard. According to this standard, decision-makers must only decide that it is more likely than not that you committed the crime in order to find you guilty. Many attorneys refer to this as the 51% standard or the 50% plus a feather standard since it means your jury must only be just over halfway sure you committed the crime.

It is important to note, though, that a school must treat its students and employees the same when it comes to Title IX. Some faculty have negotiated for a stricter standard, the “clear and convincing” standard. If they have, you are entitled to be judged by this same standard. Your attorney will be able to find out.

The hearing will be live, but either party can request that it take place via closed-circuit video. Witnesses may also testify without being physically present. You must make your own opening and closing statements. However, your advisor will question witnesses and present evidence on your behalf.

It is worth noting that the July 2021 document encourages schools to subvert the cross-examination process. For example, they recommend schools institute rules that say there must be a pause after each question, before witnesses answer, to give hearing officials time to declare a question inappropriate. This gives witnesses more time to invent answers, slows down the evidentiary process, and disrupts the flow of the hearing.

At the conclusion of the trial, the panel or decision-maker renders a verdict of “responsible” (guilty) or “not responsible” (not guilty). If you are found “not responsible,” the case is over. If you are found “responsible,” the decision-maker(s) and/ or the school will determine an appropriate penalty. This penalty is rarely less than suspension. In most cases, it is expulsion.

Penalties and Appeals

Both sides are entitled to appeal the verdict, but only under very strict circumstances:

  • New evidence
  • Clear bias on the part of the investigator or decision-maker(s)
  • Clear mistakes in Title IX procedure

These appeals are made to the school's president or provost. It is unusual for these individuals to overturn a hearing decision, especially if that decision is “responsible.” They would simply face too much negative response, especially in the era of Me Too, if they were to do so.

As noted above, schools have considerable leeway when it comes to investigating sexual misconduct. If a school determines, for instance, that an incident can't be prosecuted under Title IX, it can still institute proceedings against you under its own student code of conduct. This doesn't just mean schools can prosecute essentially any case they choose. In cases that don't fall within Title IX, schools are allowed to use any procedures they choose. Often, for instance, a school will invest the appointed investigator with total authority both to investigate the case and to decide a suspect's guilt or innocence. A school doesn't have to presume you are innocent. And it doesn't have to allow you a hearing to defend yourself.

What Inequities Still Exist

While the Trump guidelines tried to restore some balance to the Title IX judicial process, it didn't go far enough to giving defendants the due process rights they deserve. The “Questions and Answers” document has only made things worse for defendants. Biden has promised to do even more to undermine defendants' rights.

  • Perhaps the biggest problem with Title IX is that it creates clear incentives for colleges and universities to go after their own students. Under the threat of losing funding, this means schools go after the accused aggressively, often too aggressively. They are encouraged to investigate every allegation, no matter how spurious, to prosecute as vigorously as they possibly can, and to impose the harshest penalties they can devise.
  • From start to finish, schools treat the two sides of a Title IX case unfairly. Schools are required to believe complainants. They are required to provide special services to complainants. In fact, complainants who lose aren't punished, suggesting respondents are guilty even if they're found to be innocent.
  • Schools are both investigators and judges, creating an inherent conflict of interest.
  • The “Questions and Answers” document encourages schools to limit the role advisors can play, leaving the accused open to having their rights abused.

How to Prepare Your Defense

If you've been paying attention as you've read through this document, you may have noticed the entire Title IX process is deeply flawed. You may be feeling pretty grim about your prospects for defending yourself. There are things you can do, though, to improve your situation.

Don't Panic

  • Before you do anything else, take a deep breath. If you've hired a skilled Title IX attorney, you already have someone on your side to look out for your interests. You have work to do to prepare your case, but you should also remember to take care of yourself. Continue going to classes. Keep your day-to-day life as normal as possible. Be kind to yourself when you can.
  • Limit who you talk to about the case. You should let your parents know what's happening. You may also want to confide in a close friend or two. Otherwise, don't talk to anyone about your case. Remember: you aren't required to talk to investigators without your attorney. They may refuse to allow you to bring your attorney, but they can't force you to talk.

Most importantly, don't contact your accuser. You may be tempted to try to “work things out” on your own. It is too late for this. Your school will likely proceed even if your accuser changes their mind. Worse, your attempt to contact them can be used as a sign of your guilt. Most schools prohibit contact between the two parties in a Title IX case. Even if they don't, make sure you stay far away from the complainant.

  • Take the time, in the beginning, to write out a complete description of what happened. Don't leave out any details. You may think something in your story makes you look guilty, but your attorney may know how to use this information to prove your innocence.
  • Collect and preserve any evidence relating to the case. Again, keep everything and let your attorney decide how to use it.
  • Make a list of witnesses - all witnesses. Even if they may be hostile towards you, their testimony could be important.

Joseph D. Lento: National Title IX Attorney

It's impossible to say with certainty how your school might choose to investigate and prosecute you. While there are some firm rules since the Trump administration issued its guidelines, much remains unclear. And while those guidelines helped to bring balance to the process, the “Questions and Answers” document has done as much as it can to return control over the process back to schools. This has generally been at the expense of your rights.

Here's what is clear: you need an attorney and not just any attorney. You need an attorney with knowledge of Title IX and experience defending students at school hearings.

An allegation of sexual misconduct is serious, and you should take it seriously. Nothing less than your academic future is on the line. Most schools claim that they apply a variety of different sanctions to students who are found guilty of sexual misconduct. The reality is the minimum penalty they'll apply is suspension. More likely, if you're found guilty, your school will expel you.

Expulsion is difficult enough on its own. Most schools, though, include a notation on your transcript about the nature of your offense. A notation for sexual misconduct will likely mean you won't be able to enroll at another school. Your academic career will effectively be over. This will make it harder to get jobs and harder to advance in your career over the course of your lifetime.

Beyond these obvious penalties, though, schools are under no obligation to maintain your anonymity. The Trump guidelines encourage them to do this, but it doesn't absolutely prohibit it. If the Title IX investigation should become public, the allegations against you could follow you around online for the rest of your life.

How can a Title IX attorney help? An attorney can help you prepare for the Title IX investigation, helping you refine your story so it comes across clearly and coaching you on how to answer the questions you may face. A Title IX attorney can represent you in front of the media and help protect your name should the accusation become public. A Title IX attorney will also be a crucial aid in your Title IX hearing. They will represent you, raise objections on your behalf, question witnesses.

Finally, though, if you should lose your Title IX hearing, a Title IX attorney can file suit for you in federal court to overturn the verdict and give you back control over your life. Courts have begun to recognize that schools aren't treating defendants fairly in Title IX cases. They have stepped in in several recent instances to force schools to readmit students and, in some cases, pay damages as well. As you go through your school's investigation process, your Title IX attorney will be keeping a detailed record of all the times they violate your rights. This record can then become the basis for your suit.

Joseph D. Lento is a nationally recognized Title IX attorney. Joseph D. Lento built his career on Title IX cases and has years of experience defending clients just like you. He knows the law, its regulations, its history, its political evolution. He knows how to stop your school from violating your rights, how to prevent them from taking advantage of loopholes to mistreat you. Joseph D. Lento cares about your case. He's passionate about putting a stop to the most egregious abuses of Title IX and restoring balance to the justice system. Joseph D. Lento will stand beside you from start to finish and make sure you get the result you deserve.

If you or your child has been accused by your school of sexual misconduct, don't wait to see what the school will do. You can count on them to come after you as hard as they can. Call attorney Joseph D. Lento today and find out how we can help.

Contact the Lento Law Firm at 888-555-3686 or use our automated online form.

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If you, or your student, are facing any kind of disciplinary action, or other negative academic sanction, and are having feelings of uncertainty and anxiety for what the future may hold, contact our offices today, and let us help secure your academic career.

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