Title IX was an amendment established in 1972 that was intended to address sexually-based discrimination in all U.S. educational institutions. Schools must maintain compliance to remain eligible for federal education funding, which is enforced by the Office of Civil Rights (OCR). Among the most severe types of violations are acts of sexual violence, including rape, battery, and others committed against the will of a victim. Acts of sexual harassment such as unwelcome advances may be committed and place the victims in an environment that is not conducive to learning.
Discrimination may involve obstructing an individual from participating in programs or impeding access to benefits based on their gender or sexual orientation. Title IX violations are investigated and typically evaluated in a hearing that applies a “preponderance of the evidence” standard; however, recent changes also allow an institution to assess the allegations using a “clear and convincing” standard. Both options are a lesser standard than “beyond a reasonable doubt” that is used in criminal actions.
Acts of discrimination that violate Title IX in a college or university setting may occur in the admissions process, athletic participation, scholarship opportunities, and more. All members of the institutional community are subject to these guidelines. Examples include students, faculty, adjunct faculty, staff, resident assistants (RAs), coaches, graduate assistants, etc. Those who make are alleged victims are known as complainants and the accused party is a respondent.
Understanding Adjunct Faculty Members
In the U.S. today, an estimated 1.8 million individuals are working as faculty at colleges and universities. More than 75% of these individuals have no path to becoming a tenured professor. Roughly 50% of the total is known as an adjunct, which is those working part-time. Adjuncts are considered as instructors or professors that are generally hired on a contract and based on today's financial constraints; the percentage of adjuncts is expected to rise.
What is a Responsible Employee at a College or University Under Title IX?
Under the current Title IX guidelines, the majority of individuals employed by a post-secondary educational institution are deemed as responsible employees. Some types of employees such as professional counselors and pastoral advocates are exempt from this status. A responsible employee is one that has a mandatory reporting requirement according to Title IX. They are obligated to report suspected acts of sexual misconduct to the Title IX Coordinator or another school official.
The duty to report applies to potential Title IX violations that the responsible employee personally witnesses, is informed of directly from an alleged victim, through hearsay, etc. Academic institutions have a responsibility to properly educate employees about their role and obligations for reporting and any potential sanctions that may be imposed for failure to comply. An employee who reports an alleged violation should communicate all relevant information they receive including, the names of any parties involved, time, date, location, etc.
Responsible Employee Response to Student Complainant
If a student engages a responsible employee to inform them of a potential violation of Title IX, if possible, they are encouraged to share some information. The employee should disclose that they are required to report the information to proper officials. The student should be told that they may request that their identity remain private (confidential); however, depending on the circumstances, this may not be possible. The OCR supports and understands why someone would request confidentiality, particularly in matters involving alleged sexual violence.
The OCR recognizes that failing to maintain confidentiality requests may deter individuals from reporting incidents, but the institution also has an obligation to a respondent who may be unable to effectively defend themselves if this information is concealed. The student should also be made aware of other resources available for discussing information confidentially, such as counselors.
When Schools May Face Civil Liability
An educational institution or school district may potentially be liable for acts such as sexual harassment or assault committed by employees. To establish potential liability, the institution must have been made aware or should have recognized that acts of great severity occurred. The school is assumed to have actual knowledge when an appropriate school official is made aware and the institution's response is deliberately indifferent.
Allegations of Violations Against College or University Employees
A Title IX violation may occur if an employee commits a prohibited act while conducting their regular job responsibilities such as teaching or advising. Discrimination may involve an employee treating a student in a different way regarding their eligibility for services or benefits. Employees may not treat students differently based on their gender or sex, such as denying opportunities to certain students.
Acts of Retaliation Involving Employees
The Title IX guidelines prohibit acts of retaliation against complainants or witnesses. The school has a responsibility to document these concerns in its written guidelines and may impose penalties. A Title IX Coordinator or another school official may implement interim measures such as non-contact orders to efforts to protect parties.
Rights and Protections of Employee Respondents
With so much emphasis placed on protecting the rights of students who are parties in a Title IX investigation, the rights of an accused employee may be overlooked. College and universities must give any respondent employees all the same rights and protections that a student would be afforded. Examples may include being treated with respect, having their privacy rights protected according to policy, and to have all allegations fully disclosed. Unfortunately, there are instances where institutional administrators may fail to consider the rights of employee respondents; therefore faculty, staff, and others are encouraged to promptly consult with an attorney.
Importance of Retaining Seasoned Legal Representation
People working in roles on college and university campuses may face allegations of sexual misconduct if they violate Title IX or improperly respond to the complaints reported by others and potentially have harsh penalties imposed. Meanwhile, federal guidelines are continually modified, expanded, and clarified. Based on this volatility, it is vitally important that faculty and staff who are subject to these actions seek assistance from a lawyer that is familiar with this area of practice.
Title IX Attorney for Faulty and Staff at Academic Institutions
Joseph D. Lento is an experienced Title IX lawyer that understands the potentially difficult ramifications that can result from in these matters, such as to your current and future employment and reputation. He will ensure that your rights to due process are protected and pursue a positive outcome. Contact the office today at (888) 535-3686 for more information.