Over the last decade, one of the most controversial topics in higher education has been Title IX and schools' obligations under the legislation. Title IX is a federal civil right law passed as part of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et seq. The law prohibits sex discrimination for federally funded schools in things like admissions, athletics, and employment. Title IX states:

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.

The statute itself is brief, but the U.S. Department of Education also promulgates regulations that guide kindergarten through grade 12 schools and colleges and universities that accept federal funding. Over the years, regulations and court cases have shaped schools' obligations under the law, which also covers sexual assault and harassment. Until recently, if schools knew, or reasonably should have known about an incident of sexual assault, they were required to investigate and remediate the situation.

Old Title IX Regulations Weren't Always Fair

While schools may be well-intentioned, regulations handed down in 2011 worked more in favor of students who complained about an alleged sexual assault rather than those accused. In the past, students were expelled or suspended without a hearing reviewing the case against them. While many courts agree that having schools handle sexual misconduct cases, rather than the criminal justice system, is the best approach, this also implies that schools are offering the same due process rights provided by courts. This hasn’t been the case. Since 2011, more than 550 students have filed suit against their colleges, arguing that the educational institutions failed to offer them the due process required under the law in sexual misconduct cases.

In May of this year, the U.S. Department of Education issued new guidance regarding Title IX, changing the standard for school involvement in sexual misconduct cases, and changing the required due process schools must provide. The new regulations offer more due process to both the complainants and the accused in sexual misconduct claims, including:

· An express presumption of innocence;

· Live hearings and cross-examination of witnesses by an attorney or advisor;

· Access to evidence and sufficient time to prepare for interviews and a hearing;

· Impartial investigators and decision-makers; and

· An objective evaluation of all relevant evidence.

Fairer Due Process Procedures Prevail

In a groundbreaking new ruling, the U.S. Court of Appeals for the 3rd Circuit issued an opinion in the first significant court ruling since the U.S. Department of Education issued the new regulations. The court ruled that if a private university promises students a fair process in sexual misconduct cases, it must provide students with a live hearing to determine the matter and offer the complainant and respondent the opportunity to cross-examine witnesses through an attorney or advocate. The court noted that while the school does act in an “educational” rather than criminal court capacity, the alleged criminal activity requires more basic procedural protections for the respondent. Given the life-altering consequences of a guilty finding, ensuring due process offers the surest path to fairness.

Nationwide Title IX Defense

Mr. Lento has handled Title IX cases at countless colleges and universities across the country and he can put his experience and expertise to work for you.  If someone has charged you or a loved one with a Title IX sexual misconduct charge, contact attorney Joseph Lento as soon as possible at 888-535-3686 or through his online form.