Most American colleges and universities rely upon federal funding to operate. This funding is contingent upon compliance with Title IX. When employees are accused of misconduct, the school may unfairly punish the staff members, so they stay in compliance. This practice illustrates just how important the role of a defense attorney can be.
An experienced Title IX attorney can investigate the claims, interview witnesses, and obtain necessary documentation to help support your defense. With legal counsel on your side from the outset of any Title IX proceedings, your rights will be protected throughout the entire affair. These protections are especially essential if a criminal investigation into the matter is also pending.
Title IX Explained
Title IX is a federal law. Created as part of the Education Amendments of 1972, the law aims to protect college students and employees from gender discrimination, sexual harassment, and unlawful retaliation. Title IX applies to any college or university that receives federal funding. Those accused of a Title IX violation have the right to a robust notice of allegations, live hearings, the presence of a student advisor, cross-examination of parties and witnesses, as well as a pre-established standard of proof.
Employees accused of Title IX violations have the right to due process. Because investigations vary so widely from campus to campus, those accused of violations must seek legal representation as soon as possible. It's the best way to protect your rights and fight for your good name.
Title IX vs. Criminal Charges
Campus Title IX investigations are not criminal cases. Colleges and universities are not courts. While criminal cases and Title IX investigations may involve the same alleged conduct and same individuals, that's where the similarities end. Title IX cases are administrative matters. Criminal cases involve charges prosecuted in court. An accused faculty member in a Title IX case can be held responsible but will not receive criminal penalties. Those found guilty of criminal cases may face expensive fines and jail time.
Those accused in Title IX investigations do not have a constitutionally protected right to silence like those involved in criminal cases. The burdens of proof are also different. While criminal charges must be proved beyond a reasonable doubt, Title IX claims are evaluated for a preponderance of the evidence.
A complainant in a Title IX case may decide to report the alleged conduct to the police at any time. Just because someone makes a police report, though, does not mean criminal charges will be filed. Police may conduct an investigation, and a prosecutor will review it to determine whether charges are appropriate.
Common Types of Title IX Allegations Against College Faculty and Staff
While Title IX complaints can include a wide range of accusations, sexual harassment, sexual misconduct, and sex or gender discrimination are among the most common. Professors, coaches, graduate students, teaching assistants, deans, resident assistants, and administrative officials are all subject to Title IX rules and regulations. When a student, co-worker, or other person affiliated with the school files a Title IX complaint against staff, the institution is required to investigate.
Sexual harassment in violation of Title IX can also extend to workplace harassment. Professors, administrators, and other university employees may violate the law if they make sexist comments, bully colleagues, or mistreat someone on the basis of their sex or gender. Retaliation is another common type of Title IX allegations. Students and employees who face negative consequences, increased harassment, or disciplinary measures because they filed a Title IX complaint are protected from retaliation.
How Title IX Claims Work
While Title IX was originally designed to prevent a wide range of discrimination in educational settings, college disciplinary actions often hinge on sexual misconduct. Harassment, violence, assault, and other acts on the basis of sex are views so severe that they interfere with a student or employee's right to participate in educational programs. As such, the school is required to investigate reports of misconduct and punish those who violate Title IX.
Administrators and other school officials may try to question the alleged offender, with or without their attorney present. They will interview witnesses, collect statements, gather evidence, and conduct a hearing under the oversight of university employees. In their overzealousness to protect the school's interests, officials often jeopardize the rights of the accused. The emotional burden and interference with a person's career can have long-term consequences.
Title IX seeks to protect accusers, witnesses, and all other parties involved in an investigation until a determination can be made. Until the matter is settled, interim measures may be introduced. A “no contact” order may be issued, access may be restricted from certain school events or activities, and, in some cases, temporary removal from campus may be required until the investigation is complete.
While interim measures may feel punitive, it's important not to take them personally. Acts of retaliation, on the other hand, cannot be tolerated. Title IX expressly forbids retaliation against employees under investigation.
A Four-Step Process
Once a Title IX complaint has been filed, you have the right to prompt notification of the accusations. Under Title IX regulations, notice of the allegations of sexual harassment must include details of the conduct allegedly involved. At the bare minimum, this should include the identities of the parties involved, the conduct allegedly constituting harassment, and the date and location of the incident.
Next, you'll want to start building your defense. This means hiring an experienced Title IX defense attorney. By going through every detail of the alleged incident, a defense can start to take shape. This can be an uncomfortable process; most sexual assault and harassment cases require in-depth discussion of the incident in question. It's important to gather as much information as possible to help prepare a defense.
Under Title IX, the investigation into an alleged incident must be fair and equitable. Any rights or opportunities that a school makes available to one party must also be made for the other. Once the accused person has been notified, an impartial investigator will review the facts. They'll study police reports, social media posts, campus security reports, videos, text messages, and emails. The investigator is given a wide berth in their proceedings; just because you suggest a witness be interviewed doesn't mean the investigator is required to follow through.
Finally, a Title IX hearing will be scheduled. Under new regulations, all colleges and universities must have a live hearing with decision-makers who cannot be either the school's investigator or Title IX coordinator. This effectively eliminates the “judge, jury, executioner” dynamic so frequently found in earlier Title IX cases.
Title IX Hearings
All parties involved will have the chance to present both fact and expert witnesses. Inculpatory and exculpatory evidence is also permitted. Live oral cross-examination may be conducted by each party's advisor or lawyer. If a party or witness does not submit to cross-examination, the decision-maker cannot rely on any statement of that person in reaching a determination.
Hearings may be conducted in person or virtually. The school is required to create a record of the live hearing. Following the hearing, the decision-maker must issue a written description with findings as to whether the accused is indeed responsible for the charges. They will explain findings of fact and conclusions about whether the conduct occurred. They'll detail their rationale relating to each allegation and go over any disciplinary sanctions to be imposed. The decision-maker will also go over any remedies to be provided to the complainant.
Appeals are possible. Either party may request an appeal if there were procedural irregularities that impacted the outcome of the matter. Appeals can also be requested if new evidence comes to light, or if a conflict of interest by the Title IX coordinator can be proven.
Consequences of a Title IX Accusation
Unfortunately, retaliation is a common tactic used by employers hoping to cover up Title IX accusations. An employee at the center of such an investigation may find themselves passed over for promotions, moved to a different department, or let go entirely. This is in violation of Title IX law, but universities looking to protect their public image will often do whatever they can to rehabilitate their image. Even false allegations can lead to this kind of unfair retaliation.
Those accused of Title IX violations may see their once-robust careers wither before their eyes. They may be forced out of tenured positions and forced to seek employment elsewhere. Allegations of wrongdoing have a way of following a person from institution to institution, though – some even struggle to continue in their preferred line of work. In some cases, Title IX cases may even escalate to criminal charges, with long-reaching ramifications for the person accused.
Punishments are handed down by the school's Title IX panel. They have wide discretion over what type of punishment to impose. Typical punishments include termination, suspension, probation, and restrictions from participating in certain school functions or events.
If You've Been Accused of Wrongdoing
In the event that you receive a notice of an allegation made against you – or even if you just suspect that an uncomfortable interaction with a colleague or student may lead to a complaint – there are three steps to take immediately:
- Contact a Lawyer – Only an experienced Title IX defense attorney can analyze the details of your situation, formulate a strategy, and advise you on how best to proceed. It's essential that you contact an attorney as soon as you suspect a complaint may be filed against you. While you might assume you can handle this yourself, your career may be at risk. With so much on the line, why gamble with your professional reputation?
- Remain Silent – Those employed in higher education are used to putting their verbal communication skills to work. In the context of alleged Title IX violations, though, anything you say can – and will – be used against you. Whether you've already been accused or are simply anticipating a complaint being filed against you, remain silent until you speak with an attorney. Even well-intentioned friends and colleagues can misconstrue your statements, so it's best to keep quiet on the subject.
- Stay Off Social Media – Title IX violations have a way of capturing the attention of local news media. Resist the urge to respond to what people might be saying online. Rumors can spread like wildfire in the digital age, and anything you respond to can be taken out of context and used against you at a later date. It's best to avoid communicating about the allegations using your work email address, too. There's no legal expectation of privacy when using university servers, so anything you discuss via email can be used in a Title IX investigation.
Protect Your Rights and Reputation
There are a number of scenarios in which education faculty or staff may face discipline or termination under Title IX. Even when they haven't done anything that would strike the average person as misconduct, employees may risk their professional reputation and source of income. If there is even the slightest possibility of an inquisition, you should consider hiring an experienced Title IX defense attorney. Delaying representation until after something has gone wrong can cause you to miss important deadlines and may even jeopardize your rights.
If you're a faculty or staff member accused of a Title IX violation, reach out to attorney Joseph D. Lento. Do so as early as possible – we can help you navigate your way through your institution's procedures and possible liabilities. Our team is made up of nationally recognized Title IX education experts who have represented numerous education faculty members accused of all types of Title IX charges.
Allow us to be there to help plot a course through what are often difficult, one-sided procedures. If your investigation lacks fundamental fairness or due process, we'll be there to document the procedures for a possible Title IX lawsuit against the college or university. Call 888-535-3686 to schedule your consultation now or fill out our online form.