High School Title IX Cases and the Clery Act

If your child has been charged by their high school with a Title IX violation, you probably already realize the situation is complicated. If not, you soon will. It's bad enough that your family has to suffer through such an accusation at all. The prospect of an investigation can be scary. Your child may be feeling hurt and confused about why someone they trusted has chosen to level an accusation at them. To have to navigate the complexities of federal law on top of all this can make the whole thing almost impossible to deal with.

Title IX itself can be confusing. It's easy to get lost among the several officials you have to deal with or the many rules you're expected to follow. And, to really understand Title IX, to mount a truly effective defense, you have to understand a host of other laws, such as the Violence Against Women Act.

Here, we examine the Clery Act in particular and what impact it has had on how Title IX is enforced.

You should know up-front, though, that when you're facing a legal matter that is this complex, you shouldn't try to take it on by yourself. You wouldn't try to perform surgery on your child; you'd go to a specially trained surgeon, someone with the knowledge and experience to do the job right. By the same token, you shouldn't try to defend your child all on your own either. That's what Title IX attorneys are for.

So, learn as much as you can about your child's situation. Be prepared to help them through this difficult experience. Then take the time to find a qualified, experienced attorney to represent you.

What Is Title IX?

First things first: What exactly is Title IX?

The simple answer: Title IX is a federal law that was passed in 1972 with the purpose of eliminating sexual discrimination in American educational programs. In the beginning, Title IX restricted how schools themselves could behave, barring admission offices from giving preferential treatment to male applicants and prohibiting professors from judging female students unfairly. Over the last fifty years, however, it has become the primary means by which universities and high schools deal with most allegations of student sexual misconduct.

Under Title IX, schools are obligated to investigate a range of misconduct, from simple sexual harassment to stalking, sexual assault, and rape. In addition, the law lays out a clear set of guidelines for how such investigations should proceed.

The Clery Act

What, then, is the Clery Act, and how exactly is it relevant to Title IX?

The Clery Act is also a federal law, in this case passed in 1990. It gave colleges and universities a number of specific responsibilities in relation to campus crime, including crimes of sexual harassment and violence:

  • Reporting campus crime data
  • Creating policies and procedures to improve campus safety
  • Publicly outlining safety policies and procedures
  • Providing support for victims of violence

Thus, while Clery was not aimed specifically at sexual misconduct, it has served to supplement many of the more important provisions of Title IX.

The Clery Act does not apply in any direct way to K-12 schools, including high schools. Its regulations apply strictly to post-secondary institutions. However, because it lays out some very specific definitions of “violence,” it has been an important influence on how Title IX is enforced at all educational levels.

The reason for this has to do with the history of Title IX. For many years, schools were largely allowed to determine for themselves how to investigate and adjudicate instances of sexual misconduct. Each school created its own idiosyncratic approach to doing so. Some used judicial processes that mirrored courtrooms; others put students' fates in the hands of a committee. Then, in 2020, the Department of Education issued its so-called “Final Rule,” which set up very specific guidelines for how all schools must conduct Title IX investigations. As part of these guidelines, the government also created clear definitions of exactly what constitutes “sexual harassment.”

Under current law, sexual harassment—at both the university and K-12 levels—includes three specific categories of behavior:

  • Quid pro quo by an employee
  • “Unwelcome conduct that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to a school's education program or activity”
  • Sexual assault, dating violence, domestic violence, stalking

“Sexual assault” is further defined by reference to the Clery Act, which specifies four specific categories of offense:

  • Rape, whether vaginal, anal, or oral
  • Fondling
  • Incest
  • Statutory rape

Thus, while high schools are not required to abide by any of the Clery Act's requirements, they do utilize Clery's framework for “sexual assault” when deciding whether or not a student has committed a Title IX offense.

Title IX Investigations

If your child should be accused of one of the several types of sexual harassment, then what procedures will they face?

First, you should know that all faculty and staff at high schools are required by Title IX to report any sexual misconduct they know of. This means an accusation can originate almost anywhere, from a counselor, a teacher, even a bus driver. However, only a complainant, a complainant's guardian, or the district's Title IX coordinator can sign an official complaint.

Once a complaint has been signed, the Title IX Coordinator must notify you of the allegation. As part of this notice, they must provide you with the complainant's name and details about the alleged incident. In addition, they must apprise you of your rights. In particular, your child has the right to be judged “not responsible” until proven responsible. You also have the right to choose an advisor to help you through your case. That advisor can be an attorney.

The Coordinator then appoints a separate, unbiased Investigator to pursue the case. The Investigator's job is to gather as much factual information as possible about what happened. This means they visit with both sides, collect any physical evidence, and interview potential witnesses.

At the conclusion of the investigation, the Investigator must complete a summary of their findings. Both sides have the right to comment on this document and to suggest revisions before it is forwarded to the Title IX Coordinator.

At this point, the investigative portion of the case is over, and the decision-making portion begins.

Title IX Hearings

Once they've received the investigative report, the Coordinator must appoint one or more Decision-Makers to “hear” the case and decide whether or not your child is responsible for a Title IX violation. The law is clear: to avoid any conflict of interest, investigators may not serve as decision-makers. The decision-making process must be a separate, independent review of the evidence.

Your school may have procedures in place for an official live hearing of the evidence. If so, you'll have a formal opportunity to present your side of the case through your advisor. In addition to submitting evidence and calling witnesses, your advisor can cross-examine the complainant and any witnesses against you.

Title IX does not require high schools, though, to provide hearings. Instead, the appointed Decision-Maker may simply review the investigative report and render a decision. However, even in these instances, you have the right to submit evidence to the Decision-Maker and to suggest witnesses. In addition, you have the right to submit questions to be asked of the claimant and any witnesses against you.

Once they have reviewed all the evidence, the Decision-Maker must then come to a conclusion as to your child's responsibility (guilt) or non-responsibility (innocence). Most schools use what is known as the “preponderance of evidence” standard in deciding Title IX cases. This standard is somewhat more relaxed than the one most of us are used to, the “beyond a reasonable doubt” standard. Under “preponderance of evidence,” a Decision-Maker must find your child responsible if they believe it is “more likely than not” that your child committed a violation. Attorneys often refer to this as the 50 percent plus a feather standard since it demands so little to reach a guilty verdict.

The school must notify both parties of the outcome of the case at the same time.

Both sides then have the opportunity to appeal that outcome. That is, it is important to recognize that the case may not be over just because your child is found not responsible since the complainant can appeal that decision.

Generally, schools allow a limited time period in which to file an appeal. In addition, they generally grant appeals only under very limited circumstances, such as the discovery of new evidence or the demonstration of a mistake in the Title IX procedures. Here again, the Appeals Official must be someone other than the Coordinator, Investigator, or Decision-Maker.

Title IX Sanctions

Neither Title IX nor the Clery Act dictates how schools must respond to a “responsible” finding.

Most schools maintain a list of punishments that they use for the various disciplinary matters that arise over the course of a year. Often these include such time-tested sanctions as verbal and written warnings and detention. Many schools punish students by taking away privileges. A student might be barred from participating in sports, for example, or restricted from leaving campus during the school day. More enlightened schools offer sanctions such as mandated counseling or restorative justice options.

Technically, a school may use any of these to punish a Title IX violation. However, the reality is that suspension is generally the minimum punishment in such cases. Expulsion is the most common punishment.

Expulsion is problematic in and of itself. It can make getting an education difficult for your child. While some schools offer “alternative school” or online educational options, many expect students who are expelled to either enroll elsewhere or utilize homeschooling options. None of these resolutions are ideal. In fact, numerous studies have demonstrated that students who are suspended or expelled are often scarred by the experience and are far more likely to experience jail or prison in later life.

Expulsion can cause secondary problems as well, though. A record of expulsion, especially if your child's transcript details the reason for the expulsion, can make it hard for them to enroll in college, find financial aid, even join the military.

Joseph D. Lento, Title IX Attorney

Ultimately, if your child is facing a Title IX investigation, their entire future may be at stake. As a responsible parent, you want to give them their best possible chance to defend themselves. At a minimum, you're going to be there, beside them, every step of the way.

The problem is, you can't defend them by yourself. Title IX, the Clery Act, the Violence Against Women Act—these are complicated laws with complicated histories. The fact is, even the average family lawyer isn't up to the job.

Joseph D. Lento is a highly qualified, experienced Title IX attorney. He's helped hundreds of families across the United States, just like yours, chart a path through all types of Title IX charges. He knows the law, he knows its history, he knows its politics. At the same time, he has an extensive background in dealing with school faculty and administrators. He spends every day talking to superintendents and Title IX coordinators. Whether you're looking to prove your child's innocence or to negotiate a fair settlement that will let them continue their education, attorney Joseph D. Lento knows how to use the system to get you the best possible outcome.

Most of all, though, attorney Joseph D. Lento is empathetic to your cause. Whatever your situation, Joseph D. Lento understands that you deserve to be treated fairly. The law and the school district's procedures aren't always set up to ensure that happens. Joseph D. Lento is committed to protecting your rights.

If your child has been accused of Title IX sexual misconduct, don't wait. Contact 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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