How Does a College or University Decide When to Pursue a Title IX Claim Against an Accused Student?

Posted by Joseph D. Lento | Aug 02, 2017 | 0 Comments

All colleges and universities in Pennsylvania, New Jersey, and nationwide, that receive federal funding must remain in compliance with Title IX policies to continue to receive federal funding.  For this reason, colleges and universities aggressively enforce sexual assault and sexual misconduct claims against students.  Although exceptions make the headlines, a student found responsible for a Title IX violation can expect to be suspended at a minimum in most instances, and expulsion is often a likely outcome.  Mitigation can potentially help lessen a standard sanction, but accused students and parents must understand how much is at stake, and must be proactive in trying to achieve the best possible outcome as early as possible once a student finds him or herself the subject of a Title IX complaint and investigation.

Because schools aggressively enforce Title IX policies in most instances (there are exceptions that also make the headlines), students and parents should also understand how a school decides when campus disciplinary proceedings under Title IX are warranted.  A related consideration is that the first time students and parents usually hear the term "Title IX" is after a college student is accused of sexual misconduct, a brief explanation what Title IX is, and what it has to do with student disciplinary proceedings, will help provide clarity during a difficult time.. 

What is Title IX?  How does Title IX relate to a college or university when a student is accused of sexual misconduct?

Title IX of the Education Amendments of 1972 (“Title IX”) is a federal civil rights law that prohibits discrimination on the basis of sex in federally funded education programs and activities. Among other educational institutions, colleges and universities, whether in Pennsylvania, New Jersey, or nationwide, that receive any federal financial assistance will be subject to Title IX policies

How do colleges and universities decide if a charges should be brought against a student under Title IX?

Colleges and universities look to Department of Education policies for guidance as to what their obligations are when a complaint alleging sexual misconduct is alleged against a student; policies effectuated by the Department of Education's Office of Civil Rights in particular.

The Department of Education's Office of Civil Rights (DOE-OCR) considers a variety of related factors to in its determination if a "hostile environment" has been created at a college or university.  In campus disciplinary cases involving students, a "hostile environment" will be deemed to have been created when the sexual misconduct or sexually harassing conduct by an another student is sufficiently serious that it denies or limits the ability of the student who is the victim of the alleged conduct to participate in or benefit from his or her college's or university's program based on sex. 

The DOE-OCR also considers the alleged conduct from both a subjective and an objective perspective.  The DOE-OCR requires that the alleged conduct be evaluated from the perspective of a reasonable person in the alleged victim's position, with all circumstances to be considered.  (The alleged victim in a Title IX case is known as the "complainant," and the accused student is known as the "respondent.").

How is the complainant's "subjective perspective" determined in a campus Title IX case?

The United States Supreme Court used its prior analysis of Title VII of the Civil Rights Act of 1964 in determining how Title IX cases at colleges and universities should be addressed.  (Title VII prohibits discrimination based on race, color, religion, sex, or national origin).  Specifically, through federal case law that addressed Title VII issues, and thereafter applied to Title IX cases at colleges and universities (based on sexual harassment in education under Title IX), the United States Supreme Court addressed the issue of how a complainant's "subjective perspective" should be taken into account; in particular, the requirement for considering the “subjective perspective” when determining the existence of a hostile environment. 

The United States Supreme Court has stated that "if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's [circumstances], and there is no Title VII violation."  Harris v. Forklift Systems Inc., 510 U.S. 14, 21-22 (1993).  Although the Supreme Court's holding involved Title VII, the same standard is applied to campus Title IX cases to determine if a hostile environment has been created at a college or university.

How is the complainant's "objective perspective" determined in a campus Title IX case?

As with the complainant's subjective perspective, the United States Supreme Court addressed how a complainant's "objective perspective" should be determined through its analysis of Title VII issues.  As with a victim's subjective perspective, the "objective perspective" standard that was established by the Supreme Court was also applied to disciplinary cases at colleges and universities under Title IX based on sexual harassment in education.  As in all Title IX cases, sexual harassment can take many forms, including, sexual violence, sexual assault, or the more general claim of sexual misconduct.

In addressing how a complainant's "objective perspective" will determine when a hostile environment has been created at a school, and therefore invoking the school's Title IX policies, the United States Supreme Court "emphasized that the objective severity of harassment should be judged from the perspective of a reasonable person in the [victim's] position, considering ‘all the circumstances.'"  As with the alleged victim's "subjective perspective," the Supreme Court noted that a “reasonable person” standard should be used to determine whether alleged sexual conduct (or more accurately, sexual misconduct) constituted harassment.  The Supreme Court also made a distinction between male and female victims under Title VII, and in doing so, the Supreme Court considered the sex of the subject of the harassment.  In one case for example, the Supreme Court applied a “reasonable woman” standard to the victim of sexual harassment.

As with a complainant's "subjective perspective," all of above considerations related to a complainant's "objective perspective" as addressed by the United States Supreme Court have been applied to sexual harassment in education under Title IX.  In doing so, the Supreme Court has specifically adopted a "reasonable victim" standard, and has referred to the Department of Education's Office of Civil Rights' use of the "reasonable victim" standard..  Patricia H. v. Berkeley Unified School Dist., 830 F.Supp. 1288, 1296 (N.D. Cal. 1993).

A School Must Consider All Relevant Circumstances When a Title IX Claim is Made

In evaluating the severity and pervasiveness of the alleged conduct (perpetrated upon the complainant student by the respondent student), the Department of Education Office of Civil Rights considers all relevant circumstances; specifically, “the constellation of surrounding circumstances, expectations, and relationships.”  Colleges and universities are guided by Title IX policies to consider specific factors when evaluating alleged conduct in order to draw commonsense distinctions between conduct that constitutes sexual harassment under Title IX, and conduct that does not rise to that level, and therefore would not require a Title IX response (although charges under a school's code of conduct may be appropriate in such instances). 

Factors in Evaluating Whether Title IX Charges Are Appropriate to the Allegations

Title IX relevant factors as outlined by the DOE-OCR, and to be considered by colleges and universities in evaluating Title IX claims, include the following:

  • The degree to which the conduct affected one or more students' education.
  • The type, frequency, and duration of the conduct.
  • The identity of and relationship between the alleged harasser and the subject or ubjects of the harassment.
  • The number of individuals involved.
  • The age and sex of the alleged harasser and the subject or subjects of the harassment.
  • The size of the school, location of the incidents, and context in which they occurred.
  • Other incidents at the school.
  • Incidents of gender-based, but nonsexual harassment.

In determining where an accused student should be charged under the school's Title IX policy, or in the alternative, the school's code of conduct, the Department of Education Office of Civil Rights states that the more severe the alleged conduct by the respondent against the complainant, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical. Accordingly,, a single or isolated incident of sexual violence or sexual misconduct may create a hostile environment at complainant's college or university, and therefore invoke Title IX disciplinary proceedings.

Ultimately, the "totality of the circumstances" in which the alleged sexual misconduct is critical in determining whether a hostile environment exists at a college or university.  Per the Department of Education Office of Civil Rights' guidance, colleges and universities in Pennsylvania, New Jersey, and nationwide, in using the above-referenced factors to evaluate incidents of alleged sexual harassment, are instructed to always to use "common sense" and "reasonable judgement" in determining whether a sexually-hostile environment has been created; therefore, requiring schools to pursue charges against an accused student under its Title IX policies.  Unfortunately, it will be of no relief to a student who is the subject of a complaint that most any allegation involving any intimate act, or any act that has sexual overtones of any kind, will invoke a school's Title IX policies.

Pennsylvania & New Jersey Title IX Student Defense Attorney

A college or university disciplinary record should be avoided at all costs.  The unfortunate reality of the student disciplinary proceedings at most colleges and universities does not favor an accused student however.  Whether guided by good intentions or not, student disciplinary proceedings at many schools are a kangaroo court; providing limited rights to an accused student, if any, and allowing for potential negative issues to develop throughout the process, despite the stakes being incredibly high.  Students have often worked hard their entire lives to get into a good college or graduate program, and to find oneself the subject of a disciplinary complaint can be hard to bear. 

Another unfortunate reality is that the stakes are raised that much higher when allegations against a student involve the prospect of disciplinary proceedings brought under Title IX. The reason being that a student charged under his or her school's Title IX policies as opposed to the school's code of conduct can mean the difference between a potential finding of responsibility that can affect a student for years to come, or a potential finding of responsibility that, although to be avoided at all costs, will not necessarily cause a potential lifetime of consequences.

When a school decides, based on Department of Education Office of Civil Rights guidance, that charges should be brought under Title IX, the stakes cannot be higher, and what a young person has worked so hard for his or her entire life can be gone in an instant if the proper steps are not taken to defend against Title IX allegations. Whether pursuing one's goals, at the undergraduate level, or in a graduate program such as business school (MBA), law school, medical school, and whether a local student, be it from the Philadelphia, Pittsburgh, New Brunswick, or Newark area, or an international student for example, an accused student and his or her family must make certain the respondent's interests are represented and protected as soon as possible.  Contact attorney Joseph D. Lento today.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento passionately fights for the futures of his clients nationwide. Attorney Lento and his team represent students and others in disciplinary cases and various other proceedings at colleges and universities across the United States. Attorney Lento has helped countless students, professors, and others in academia at more than a thousand colleges and universities across the United States, and when necessary, he and his team have sought justice on behalf of clients in courts across the nation. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, is admitted pro hac vice as needed nationwide, and he can help you or your student address any school-related issue or concern anywhere in the United States.


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