A Title IX Primer for Graduate Students

If you're a graduate student, you already know you're held to a higher standard than you were as an undergrad. Papers are longer; readings are more intense; you may be trying to balance teaching responsibilities with your class schedule. Those higher expectations extend to all aspects of your university experience, including your personal and professional behavior.

That means your school will likely hold you more accountable for sexual misconduct violations. You're older, wiser, and more experienced now. You're expected to make fewer and less serious mistakes. Thus, where an undergraduate might face probation or suspension for such a violation, you may be facing the loss of an assistantship or even expulsion.

Second, you probably have a lot more responsibilities as a graduate student, and this means there is a lot more potential for you to violate sexual misconduct policies. If you teach freshman comp, for instance, or run a chemistry lab, you have to be especially careful how you interact with your students. You can't know when one of them might take something you do or say the wrong way. Relationships with students are virtually always forbidden, and some schools go so far as to ban graduate students from dating any undergraduates who might take classes in their department.

It's also true that you have a lot more at stake than you did as an undergraduate. You've put in years of hard work to get to this point. You aren't just a student now. You're an academic with a bright future ahead of you. A Title IX finding of “responsible” could undo all of that.

We've put together this handy guide to all things Title IX, a guide specifically geared towards graduate students, because should your department chair ever come knocking, you want to be prepared.

Before you dive in, though, the most important thing you need to know about Title IX is that if you've been accused, you can't handle it on your own. You need help from a qualified Title IX attorney. That's why before we're done, we'll also make sure you know exactly how to get that help.

What is Title IX Anyway?

Let's get right to the important information because if you've been accused of a Title IX violation, you need answers now. Maybe you heard about Title IX as an undergrad, but maybe it just never came up. So, what is Title IX exactly, and if you have been accused, what are you facing?

In simplest terms, Title IX is a federal law, passed in 1972, prohibiting sexual discrimination in any educational program that receives federal funds.

If you know your history, you'll immediately recognize the importance of Title IX in the march towards women's equality in this country. In the late 1960s and early 1970s, college campuses could often be openly hostile environments for women. Many schools had only recently allowed women in, and almost all still maintained multiple restrictive policies. Women were sometimes barred from studying for certain degrees or enrolling in graduate courses. Frequently, they were subject to strict dress codes and curfews. At some schools, they needed a parent's signature just to apply.

Title IX put an end to all of that, revolutionizing academia and helping to change attitudes throughout American society.

Today's Title IX is far different than it was in 1972, though. The law has changed and evolved over its fifty-year history. Current Title IX guidelines extend well beyond simple discrimination, regulating a whole plethora of inappropriate behaviors, from dating violence to stalking to rape. In addition, the law has been refined so that it now includes very specific rules about how Title IX investigations and hearings should be conducted. In short, things aren't nearly as simple as they were in 1972.

Current Title IX Guidelines: The Investigation

You'll notice the title of this section is “current” Title IX guidelines. That's because Title IX remains in a constant state of flux. We can't give you a definitive guide to Title IX because the law is subject to change, potentially before the year is out. As recently as July 2021, the federal government issued revised instructions for how schools should enforce the law, and the Biden administration has promised to make sweeping changes in the very near future.

We'll explain more about this situation a little later, but first, let's talk about exactly how the Title IX process works, at least for now. The good news is the process is the same for every school. Even if your graduate work is at a completely different university than you studied at as an undergraduate, nothing changes.

When someone lodges a sexual misconduct complaint against you, it must go through your school's Title IX office. Only the complainant or the Title IX coordinator can make such a complaint. A school can require its faculty and staff may report misconduct, but none of those individuals can sign an official complaint.

The Title IX coordinator decides whether or not to pursue an allegation through Title IX channels. It is unusual for a coordinator to simply dismiss an accusation. Assuming they do move the case forward, they will appoint an investigator to look into the matter.

The investigator's first job is to contact both parties and offer support services. These typically include access to medical care and mental health care. Sometimes a university may also provide coursework exemptions or even the option to take a temporary leave of absence from school. Whatever the case, the university must offer you the same services it offers to the complainant.

The investigator will also apprise you of the charges against you, explain the investigation process, and apprise you of your rights. Among these, you have the right to appoint an advisor to help you, and this advisor can be an attorney.

Your school will have a standard timeline for completing the investigation—60 days, 90 days, 120 days. The law only states that it must be completed in a “timely” fashion and that every case must be treated the same way. As part of the process, the investigator will likely interview both you (the respondent) and the complainant. In addition, they may interview other witnesses and collect any pertinent physical evidence. This can include emails, text messages, dorm logs, pictures, and video, even clothing.

If you know of witnesses or have access to physical evidence, it's important you share this information with your advisor. They can bring it all to the investigator's attention. Don't conceal anything since your attorney might know how a piece of information could potentially exonerate you.

At the conclusion of the investigation, the investigator writes a report detailing their findings. Both sides then have ten days to respond to this report with any suggestions for revision. Finally, the report is forwarded to the Title IX office.

Current Title IX Guidelines: The Hearing

Under Title IX, you are entitled to defend yourself at a full, official hearing. This hearing must be live, though it can be conducted via closed-circuit video if either side requests it. The case is heard by one or more “decision-maker(s).” Most schools appoint a three-member panel, made up of faculty, staff, and students, who have been given some minimal training in how to deal with matters of school justice. However, under Title IX, the school can appoint a single person who has the sole responsibility for deciding whether or not you are responsible.

During the hearing itself, you have the right to call witnesses on your behalf and cross-examine any witnesses for the complainant. This includes the complainant themselves if they decide to testify. Title IX makes clear that only advisors may do the actual questioning, however. If you do not have an advisor, the school must appoint one to serve on your behalf.

Recently, the federal government has recommended that panels review all questions before they are asked to eliminate repetition and to make sure all questions are pertinent. Questions about a complainant's past, for instance, are almost always forbidden.

At the conclusion of the hearing, the decision-maker(s) render a verdict as to whether or not you are “responsible” for the accusation. Decision-maker(s) aren't required to use the standard of evidence you're probably most familiar with, “guilty beyond a reasonable doubt.” Instead, most base decisions on the “preponderance of evidence” standard. According to this standard, decision-maker(s) must only decide whether it is “more likely than not” that you committed the violation. Defense attorneys often refer to this as the “50 percent plus a feather” standard since decision-maker(s) must only be just over 50 percent sure you are responsible.

If the majority of the panel decides you are responsible, the panel then moves on to assigning you a sanction for your actions. Most schools claim they provide a range of possible penalties, from verbal warnings to mandated therapy and financial restitution. In practice, though, suspension is the minimum sanction you'll face. More likely, your school with expel you if you're found responsible.

You do have the right to appeal the decision to the president or provost. Appeals, however, are only accepted for very specific reasons. For example:

• Discovery of new and relevant evidence
• Clear demonstration of bias on the part of the Title IX Coordinator, the investigator, or the panel
• Clear demonstration that some part of the Title IX procedures was done incorrectly
• Disproportionate sanctions

Finally, you should know that your institution will likely investigate you even if you or the complainant decide to leave school. In fact, while current Title IX guidelines discourage this, Title IX coordinators can sign a complaint against you even if the complainant refuses to cooperate.

Alternative Justice

Most schools maintain a sexual misconduct policy in addition to Title IX for incidents that aren't covered by federal law. For example, schools aren't allowed under Title IX to investigate incidents that occur in off-campus housing. However, a university can investigate such incidents under its own Student Code of Conduct.

As a result, many schools have a separate track for resolving non-Title IX sexual misconduct allegations. Because these tracks aren't mandated by the federal government, every school's policies are unique. There are some basic standards among them, though.

For the most part, non-Title IX sexual misconduct is treated in one of three ways:

• Using Title IX policies and procedures: Some schools apply Title IX policies and procedures whether or not the case qualifies officially under Title IX. Some schools are now using the guidelines to deal with every case, even non-sexual misconduct cases.
• Using a modified version of the Title IX guidelines: The majority of schools use some version of Title IX procedures to investigate sexual misconduct allegations. They may, for example, limit how much an advisor may participate in the process, or they may only allow for a hearing in suspension and expulsion cases. Or they may follow investigative procedures but let the investigator decide the case rather than allowing you a full hearing.
• Using a separate, non-Title IX process: A few schools use a completely separate set of procedures for dealing with non-Title IX sexual misconduct. A campus committee, for instance, might decide the case without an investigation or any other sort of official proceedings.

Issues with Title IX

You may already have noticed, at this point, that the justice system at colleges and universities doesn't exactly work like what you've seen on Law and Order. If you've been accused, you may be expecting to appear in an oak-paneled courtroom before a seasoned judge and a jury of your peers. Instead, you'll likely find yourself in some basement seminar room, making your case before a chemistry professor, an English adjunct, and a third-year accounting major.

More importantly, you don't get the same rights under Title IX that you do in an actual court of law.

• The school has a financial incentive to investigate you. The federal government withholds funding from any school it thinks isn't taking Title IX allegations seriously enough. That means colleges and universities almost always investigate a case, even if the accusations seem highly unlikely.
• In the American justice system, investigations and adjudication are handled by two distinct entities: the police and the courts. There's an important reason for that: allowing the police to make decisions about your guilt or innocence would create an inherent conflict of interest. Yet, colleges and universities are allowed to handle all aspects of a sexual misconduct case. Though they may appoint different people to handle these different jobs, ultimately, it is the school that accuses you, investigates you, and determines your responsibility.
• You are judged under a lesser standard than you would be in a court of law, the “preponderance of evidence” standard. Decision-maker(s) don't have to be certain you committed a violation. They only have to believe it's “likely” you committed a violation.
• Legal professionals aren't in charge of your case. You may have an attorney at your side, but the officials in charge of hearing and deciding your case often will have only minimal training in law and judicial procedures.
• Your case will be decided by a simple majority and may even be decided by a single individual. While guilt in a courtroom can be decided by unanimous jury decision, you'll be found responsible if two out of three panelists agree.

Of course, as flawed as it may be, Title IX is still structured to protect some of your due process rights. If your school investigates you under non-Title IX procedures, you may find you have few or no rights.

What's at Stake?

Title IX doesn't mandate sanctions. Schools are free to decide for themselves how to punish respondents who are found responsible for sexual misconduct. As we mentioned above, most schools pay lip service to the idea that violations can be treated using a variety of different sanctions. Your school may mention removal from campus housing. It might talk about counseling or barring you from accessing certain campus services.

The truth is, suspension is usually the minimum penalty in Title IX cases, and expulsion is more likely. In the current climate, especially in the era of Me Too, colleges and universities face a great deal of pressure, both publicly and privately, to offer respondents little to no mercy. It only takes one news story about a student who “got off lightly” to set off a community—or in some cases a national—firestorm. Hyper-aware of this possibility, most schools assign punishments that are too harsh rather than risk public outcry.

You should also know that, while expulsion is severe in and of itself, it often includes additional sanctions. If you've been expelled from a state school, you probably won't be allowed to enroll in any other schools in the state. In fact, many universities now include a transcript notation in expulsion cases, describing the reasons for the expulsion. That can prevent you from enrolling anywhere else, inside or outside the state. If you're found responsible, your academic career could essentially be over, making it difficult to find your next job, or even your first job, or to make any advancements over the lifetime of your professional career.

How Did We Get Here?

Now that we've laid out the situation, it's worthwhile understanding just why things are the way they are. After all, you're a graduate student. You don't just settle for Cliff's Notes version anymore.

Title IX was a vital and necessary step forward when it was originally passed in 1972. There were problems inherent in the law, though, from the very moment it was passed. These began with some of the law's terminology.

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.”

In the first decade or two after Title IX was passed, most arguments over it focused on the phrase “education program or activity.” In particular, there was fierce debate about whether that phrase should apply to college sports? Would football programs, for instance, be forced to use female linebackers?

More recently, the biggest fights over Title IX have had to do with the word “discrimination.” In ordinary usage, that word would seem to mean something like “unfair treatment.” Certainly, using different admissions standards for men and women would qualify as “discrimination.” So too would using separate rubrics to grade papers.

However, over time the courts have vastly expanded the definition of “discrimination,” widening Title IX's application. As it's currently used, the term refers to any behavior based on a person's sex that interferes in any way with their ability to get an equal education. Using that reading of “discrimination,” stalking qualifies. So too does sexual assault. At some points in the law's history, inappropriate jokes have qualified as well.

In and of itself, this broader definition is not a particular problem. Schools are entitled to make their own rules. However, the shift has had a number of troubling repercussions.

In the beginning, the law was meant to regulate schools, to make sure school administrators and faculty didn't mistreat female students. Once schools were required to protect students from sexual assault, however, their responsibilities suddenly extended far beyond policing professors and registrars. As interpreted today, colleges must also police their own students. That's problematic. Of course, any business has a responsibility for disciplining its employees. A restaurant manager won't keep his job long if he allows the wait staff to harass diners. It's a different matter, though, when the government requires businesses to discipline their customers.

Additionally, colleges and universities just aren't set up to deal with such serious, weighty matters as sexual assault. If a student turns in a plagiarized paper, a professor—no matter their discipline—should be qualified to investigate and judge whether that student should be punished. It's harder to see, though, how a physics professor is qualified to sit in judgment on a student who's been accused of rape. Such a situation is problematic for the professor. It puts them in the position of deciding a student's entire future. Likewise, it is problematic for the student, whose future rests in the hands of someone ill-equipped to make fine legal distinctions.

The government's response to this awkward situation wasn't to repeal or revise Title IX, so schools didn't bear this heavy responsibility. Rather, the government tried to minimize the burden on schools by abbreviating the justice processes of Title IX. In short, it tried to make investigations simpler and easier. Unfortunately, most of the complications the government removed related to protections for the accused. Without question it is easier to conduct a hearing if decision-maker(s) don't have to worry over complex objections about procedure. Most of those objections, though, ensure respondents are treated fairly. Remove them, and the very foundation of justice is in question.

A Law in Flux

Far from being resolved by the courts, these problems of definition have only grown more troublesome over the last fifty years. One big issue is that enforcement of the law was left to the executive branch. As a result, Title IX has become a political football, used by successive presidential administrations to try and enact ideologically driven social change.

This began with the Clinton administration. In cases in 1998 and 1999, the Supreme Court ruled that schools could not be held liable for sexual discrimination and harassment unless they had “actual knowledge” and acted with “deliberate indifference.” Those aren't particularly strict standards. In response, the Clinton administration insisted the decision applied to lawsuits but not Title IX funding. It issued new guidelines stating that universities weren't merely responsible for investigating sexual misconduct. They could lose federal funding simply for failing “to prevent, eliminate, and remedy sexual harassment.”

The Obama administration worked to create an even stricter interpretation of Title IX. In a so-called “Dear Colleague” letter issued in 2011, the Department of Education defined inappropriate speech as “harassment” and “discrimination,” putting this law directly at odds with First Amendment free speech protections. In addition, the letter insisted schools assume every complainant was telling the truth unless proven otherwise. With this kind of permission, some schools, such as the University of Mississippi, published materials directing investigators to treat lies from complainants as evidence they were telling the truth.

In 2020, things changed once again, this time in the opposite direction. The Trump administration, under the direction of education secretary Betsy DeVos, issued sweeping Title IX reforms that fundamentally changed the nature of the law. These changes narrowed the definitions of “discrimination” and “harassment,” limited school jurisdictional authority, and restored important due process rights to the accused, including the right to a hearing and the right to cross-examination. This actually helped restore some balance to Title IX.

As recent history has suggested, though, these new guidelines won't be the end of the matter. In fact, Joe Biden campaigned on a promise to repeal Trump's rules. Already since he has taken office, Biden has extended Title IX protections to transgender students. More significantly, the Department of Education's Office of Civil Rights released a set of Questions and Answers in July 2021, designed to undermine the Trump guidelines wherever it could. Among the suggestions: schools should create their own sexual misconduct policies when Title IX is insufficient.

In fact, that is just what most schools did: add sexual misconduct to their Student Code of Conduct policies. The result has been even greater confusion in the system. Accused students don't know whether they will be treated under the government's rules or the school's. Every school's rules are different, and no school is required by law to provide students with due process rights.

It seems unlikely this chaos will be resolved any time soon. While the Question and Answer document was a stopgap measure, Biden has already appointed a committee to examine the possibility of repealing Trump's guidelines altogether. That group is scheduled to report on its findings in early 2022.

Joseph D. Lento - Title IX Attorney Helping Clients Nationwide

By this point, you should have a clear sense of why you need an attorney to handle your Title IX case. The law is complicated. The procedures are still relatively new, and they can be confusing. And that's not even the worst part: the law is subject to change without warning, and when schools don't want to follow Title IX guidelines, they can simply adjudicate your case under their own homemade procedures.

You might still be asking, though, what can a qualified Title IX attorney do for me? The answer is quite a lot:

• Accompany you to interviews: Your attorney will help you prepare to answer the Title IX investigator's questions and sit beside you while you answer them.
• Represent you at the hearing: Your attorney will examine and cross-examine witnesses at the hearing. They may also introduce evidence and raise any objections.
• Negotiate: Not every case ends with a hearing decision. Your attorney can help you negotiate an informal resolution where there is no admission of responsibility. In limited instances, and in the face of overwhelming evidence, for example, you may decide it is in your best interest to accept some responsibility. An attorney can make sure you get the very best possible terms.
• Deal with the fallout that can take place on campus when accused of Title IX and the media: Schools usually say they'll do everything they can to ensure your anonymity. Accusations like these, though, have a way of getting out. If you find you're faced with angry classmates or television cameras, you will want a seasoned lawyer by your side to protect you and to answer questions.
• File a lawsuit on your behalf: In the last decade, a number of students have sued in federal court to overturn university decisions. Courts have increasingly recognized that Title IX cases don't do enough to safeguard respondent rights. Even if your case never goes to trial, a Title IX attorney can negotiate a settlement that will restore your good name.

Joseph D. Lento works nationwide as a Title IX attorney day in and day out. He built his practice dealing with Title IX and sexual misconduct cases, and he has help helped hundreds of graduate students across the United States overcome Title IX allegations. Joseph D. Lento knows the law. He also understands the complicated politics behind Title IX. Finally, though, he's experienced at working with colleges and universities. Joseph D. Lento will protect your rights and make sure you get the very best possible resolution to your case.

If you're a graduate student and you've been accused of sexual misconduct by your university, you need someone like attorney Joseph D. Lento by your side. Don't wait. Contact the Lento Law Firm today at 888-555-3686 or use our automated online form.