Title IX was an educational amendment first implemented in 1972 by the U.S. Department of Education and current guidance and enforcement is the responsibility of the Office of Civil Rights (OCR). The purpose was to address concerns related to sexual discrimination in educational environments. Sex or gender-based acts of discrimination such as obstructing entry or preventing equal access are strictly prohibited.
Acts of sexually-based discrimination in educational institutions may occur in admissions, accessing benefits, athletic participation, academic programs, and others. Title IX also prohibits serious violent acts such as sexual assault that are committed against unwilling victims. Acts of sexual harassment relating to someone's sexual orientation or gender identity are also not tolerated. Common examples include promoting stereotypes or inappropriate slurs made against those whose sexual identity does not conform to societal norms.
Each school names a Title IX Coordinator who is responsible for maintaining the institution's policies and provisions. Upon receiving a complaint, the allegations are to be investigated promptly, fairly, and equitably. If the complaint appears to have merit, the administration may summon the parties to a hearing. Federal guidelines emphasize that all parties are entitled to due process.
All parties can choose an advisor that will provide support and assistance. Parties facing allegations of violating Title IX are encouraged to promptly speak with an experienced attorney to act in this capacity. If the allegations are proven, a student is likely to face sanctions including suspension or expulsion from the school.
The allegations have traditionally been evaluated using a “preponderance of the evidence” standard. Recently, federal guidelines were expanded to allow institutions the option of also using a “clear and convincing” evidence standard. Having a seasoned attorney-adviser is essential for protecting your rights and pursuing a positive outcome.
Recent Transitions in Title IX Due Process Rights
The Department of Education under the Obama Administration revised the institutional requirements associated with Title IX and emphasized that non-compliant college or universities would risk their eligibility for federal education funds. The reaction was described as “over-compliance” that was focused on the rights of victims of sexual assault (complainants). Many students facing allegations (respondents) claimed that their rights to due process were being ignored. Many respondents claimed that they had not received summaries of evidence from Title IX investigations and complained that schools were preventing them from directly questioning the opposing party or witnesses.
In recent years, many of the newer process rules and protections have been related to protecting the rights of respondents. Live hearings are increasingly common and more institutions have begun to allow for cross-examination of witnesses. Respondents are also much more likely to be afforded their right to review all the evidence as part of a written investigative summary.
Due Process Clause Principles
Within the Fourteenth Amendment is a Due Process Clause that requires states to adhere to certain provisions when “depriving individuals of life, life, or property.” The individual must be afforded due process, which is not fixed and may be adapted based on the nature of the situation. For example, the provisions allow the protections to be applied based on “time, place, and circumstances.”
Supreme Court Addresses Due Process in Scholastic Disciplinary Actions
In Goss v. Lopez U.S. (1975), several high school students were suspended for 10 days without having an opportunity to be heard. Judges explained that the students were entitled to public education and that some formal opportunity to review the evidence and to answer the allegations is appropriate under the Fourteenth Amendment's Due Process Clause. Before imposing suspensions of 10 days or more, the schools must provide prior notice and conduct a hearing.
Types of Due Process Violations in Title IX Actions
There have been many instances where student respondents who were accused of violations related to sexual misconduct felt they were not afforded their due process rights. Examples include a failure to give sufficient notice and not being permitted to address or confront opposing witnesses. Respondents have alleged that measures were not taken to ensure that the decision-makers were impartial and that the disciplinary process was unfair. Federal guidance regarding due process has clarified that student respondents should be promptly informed of all allegations and be afforded a reasonable amount of time to prepare for a hearing.
Due Process in College and University Disciplinary Proceedings
Many student respondents have brought claims for failures in the due process after being denied the opportunity to cross-examine witnesses in hearings. Several courts have reiterated that these disciplinary proceedings are not intended to emulate criminal proceedings and that respondents are not entitled to the same rights. The majority of such claims have been denied unless the witness provided testimony that was disputed and the respondent was not permitted to challenge its credibility.
The Fifth Circuit heard a case involving a respondent who claimed a lack of due process based on not being permitted to cross-examine a witness. The claim was denied because the school administrators explained that this particular testimony did not influence their decision; rather, they had relied on the decisive photo and video evidence.
Importance of Having an Experienced Attorney-Adviser
A student respondent that is found to violate Title IX will face additional challenges beyond suspension or dismissal. Evidence of the disciplinary misconduct is typically documented in a student's records and transcripts, which can hinder admission to a different institution. Students accused of violating Title IX guidelines should promptly consult with knowledgeable legal counsel. Some of the primary advantages of having an attorney serve in this role are:
- Your attorney can individually re-examine and scrutinize the evidence and identify weaknesses or inconsistencies
- The institution's unique policies and procedures will be accurately interpreted
- He or she may engage in negotiations with key administrations to seek an amicable resolution to the matter
- Ensure you are properly prepared to confidently deliver statements and effectively respond to questions in hearings
Experienced Advisory Representation for Students in Actions of Title IX Misconduct
The consequences of a Title IX violation can have a devastating effect on your future. Joseph D. Lento is well-versed in this unique area of legal practice. He will create a customized defense strategy on your behalf. Contact the office today at (888) 535-3686 for additional information.