High School Consent Policies and Title IX

If your high school student has been accused of a Title IX violation, it's natural to be worried. Sexual misconduct accusations can have serious repercussions. If your child is found to be “responsible” (guilty), they might very well be expelled from school. Worse, this finding could affect their future: They might have trouble getting into college, applying for financial aid, even getting a job.

Given what is at stake, you probably have a lot of questions. How did my child wind up in this situation? What is the likelihood that my child will be found responsible? What can I do to protect my child?

Often, the answers to these questions have to do with issues of consent. Many Title IX cases come down to competing interpretations about what happened during a sexual encounter. Your child's accuser has one story; your child has another. Who is right may depend upon the school's definition of “consent.” That is, did your child do what was necessary to make sure they had their partner's permission to engage in sexual activity?

Victims' rights groups frequently argue that consent is a simple matter. If a person says they didn't want to have sex, then obviously they didn't. The fact is, sexual encounters are rarely so straightforward. Emotions run high; miscommunication happens. In all likelihood, your child didn't set out to hurt anyone.

To prove this, you need to know the facts of the case, but you also need to know how your child's high school defines consent. That will make a big difference in terms of how those facts are interpreted. Finally, you need to understand what consent means in a general sense and why it can be such a tricky matter to determine. Just because a school has a consent policy doesn't mean it's necessarily fair.

This guide offers a useful starting point for educating yourself about consent. Right from the start, though, you should know that the very best way to defend your child is to retain the services of a qualified Title IX attorney, someone with experience arguing the many subtleties of consent.

The Basics of Consent Policies

Let's start by looking at how high schools define consent, since these definitions can play a crucial role in how Title IX investigations unfold.

Title IX doesn't mandate any specific definition for consent. It leaves this matter up to individual schools. As a result, every school's definition is unique, and the only way to truly understand how your school thinks about the subject is to find the consent policy and read it.

However, there are some general principles that almost all policies agree on:

  • It is impossible to consent to sexual activity if you are incapacitated. If you are drunk, high, passed out, or asleep, you can't make an informed judgment about whether you want to engage in sexual activity or not.
  • You can refuse consent without literally saying “no.” In addition, refusing sexual activity does not require that you fight back. Body language is sufficient to convey your unwillingness to participate.
  • You have the right to withdraw consent at any time. Even if you are actively engaged in sexual activity, you can decide you no longer want it to continue.
  • You cannot consent if you are under duress. This applies to situations involving blackmail and physical treat. It also includes relationships where one person has authority over another. For example, although the age of consent is under 18 in many states, minors cannot consent to sexual activity with adults if there is an established relationship, such as between a student and teacher.
  • Just because you have agreed to sexual activity in the past does not mean you consent to future activity.
  • Just because you've consented to one type of sexual activity does not mean you consent to others.

Differences between school policies usually have to do with the interpretation of one or more of these principles. For instance, some schools insist that if a person has had even one drink they are “incapacitated.” Others use a more subjective measure for deciding if someone is capable of giving consent.

Likewise, some schools are quite rigid about how you must obtain consent. They may argue that consent is only valid if a person actually says “yes.” Other schools allow partners to signal willingness through gestures such as nodding or giving a thumbs up. Still, others make “enthusiasm” the deciding factor.

Again, the only way to know how your particular high school treats consent is to read its policy. Title IX dictates schools must have such a policy and that it must be publicly available.

Issues of Consent

The problem with high school consent policies is that they don't always apply to the rather messy realities of life. In fact, when it comes to sex, there are a whole range of things that can go wrong and lead to serious misunderstandings and even radically different interpretations of what happened.

  • Miscommunication: Probably the most common way things go wrong when it comes to a sexual encounter is that people simply don't communicate effectively. Even under the best of circumstances, humans don't always express themselves clearly. Sexual situations exacerbate that situation. We feel awkward talking about sex, so maybe we don't say what we want. We hope the other person reads our signals. The result: one partner makes a mistake. This is especially true with minors, who generally don't have a lot of experience with sex in the first place.
  • Alcohol: Miscommunication is even more likely when alcohol is involved. Of course, no one would argue that it is reasonable to take advantage of someone who is incapacitated. The problem is that it isn't always easy to determine precisely when someone has reached that point. Again, most kids aren't experienced when it comes to alcohol and may not recognize the signs that a partner is too drunk to give consent.
  • Emotions: Sex can be a highly emotional activity, especially for those who may be new to it. Hopefully, these emotions are positive: love, excitement, tenderness. However, some young people do experience negative emotions like guilt and regret afterward, particularly if they're worried their parents may disapprove of what they've done. Emotions like these can muddy the issue of consent. A person with extreme regret may even manage to convince themselves that they didn't actually consent to have sex at all.

The bottom line is sex is complicated. Your child may very well stand accused of a Title IX violation because of a misunderstanding they have with their partner about what exactly happened. A misunderstanding, though, shouldn't doom your child's future.

What is Title IX Anyway?

If your child has been accused of sexual misconduct, what happens next?

Most of the time, high schools investigate these allegations under Title IX, a federal law passed in 1972. Title IX was meant to eliminate sexual discrimination and harassment in American educational programs, a noble goal. Without Title IX, girls might not have many of the educational opportunities they do today. However, as the law has evolved, it has become increasingly complex. It doesn't always guarantee rights to the accused, and it doesn't always bring about justice when it comes to sexual misconduct cases.

What does the law actually say?

First, you should know that Title IX mandates that all high school personnel—teachers, administrators, support staff—must report any and all Title IX violations to the district's Title IX coordinator. This means the allegation may not have originated with another student. However, only a complainant or the coordinator can actually sign an official complaint.

Schools are required to offer complainants access to support services, including medical care and counseling. Some schools offer students additional help, including time off from classes and tutoring help with assignments. Current Title IX rules guarantee that the accused (respondents) should have access to exactly the same services as complainants.

Neither the school nor any of its representatives can interview minors without their legal guardians. In addition, both sides in the case have the right to choose an advisor to help them manage the investigation. This advisor can be an attorney. Some schools limit the role advisors can play, prohibiting them, for instance, from speaking openly during investigative interviews. However, you have a right to consult your advisor during every stage of the case.

Title IX Investigations

Once an official complaint is filed, the Title IX Coordinator appoints an investigator to look into the incident. This person will interview both the complainant and the respondent. They will also collect any physical evidence and interview any relevant witnesses. Both sides may present evidence to the investigator and suggest witnesses.

The investigator will have a set time to complete their investigation, often 45-60 days from when the complaint is filed. At the end of this time period, the investigator creates a written report of their findings. Both sides then have a set amount of time to respond to this report and suggest any revisions before the document is finally submitted to the Title IX Coordinator.

Title IX Decisions and Appeals

Once the Title IX Coordinator receives the investigator's report, they appoint a decision-maker to review the case. This person examines the report but may also make their own inquiries. Typically, for example, decision-makers meet with both sides in the case to get additional information.

A decision-maker's final decision is usually based on a number of factors, including the school's consent policy. That is, whether or not your child took reasonable actions to make sure the claimant consented to the sexual activity will be a key issue. In the end, though, the decision-maker doesn't use the evidence standard most of us are familiar with--“guilty beyond a reasonable doubt.” Instead, Title IX allows them to use the much less strict standard, “preponderance of evidence.” Based on this standard, decision-makers must only decide that it is “more likely than not” that your child committed the offense.

If your child is found responsible, the decision-maker also assigns a sanction or punishment.

Both sides have the right to appeal a decision-maker's findings if new evidence should arise or it is clear that mistakes occurred during the investigative process. In addition, either side can choose to accept the findings but appeal the penalty if they feel that penalty is too lenient or too harsh. According to Title IX, investigators, decision-makers, and appeals officers must be three separate individuals. This helps provide a check on the validity of the process.

Title IX leaves it to the school to decide what penalty a responsible student should face. Most schools say there are a range of penalties in such cases, such as verbal warnings, formal apologies, restitution, and mandated counseling. In practice, however, the minimum penalty is usually suspension. Far more often, students found to have violated Title IX are expelled.

Attorney Joseph D. Lento Knows Title IX

Title IX cases are complicated, and there's a lot at stake. You want to do the best for your child, to make sure their rights are protected and their future stays safe. That means understanding issues like consent. It also means hiring an attorney with the knowledge and experience to defend your child when it comes to these issues.

Joseph D. Lento is a highly-qualified Title IX attorney. He built his career defending students across the United States just like your child from sexual misconduct allegations. He's helped clients with every kind of accusation imaginable, from stalking to date rape. He understands what you're going through, and he's on your side. He won't let your school bully you.

Joseph D. Lento knows the law inside and out. He also knows how schools operate. Joseph D. Lento understands the language of high school administrators and how to negotiate fair settlements on your behalf. Whatever your situation, Joseph D. Lento won't rest until you get the very best possible outcome.

If your child has been accused of a Title IX violation, it is important you act now. The more time passes, the more the facts in the case can become confused. Don't wait. Contact attorney Joseph D. Lento and the Lento Law Firm today at 888-555-3686 or use our automated online form.

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If you, or your student, are facing any kind of disciplinary action, or other negative academic sanction, and are having feelings of uncertainty and anxiety for what the future may hold, contact the Lento Law Firm today, and let us help secure your academic career.

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