It's among a parent's worst nightmares: your child is accused of sexual misconduct. Afraid to appear unresponsive to the victim, your school is taking an aggressive approach to the case. You don't know just what you're facing. What can you do to protect your child?
First things first: breathe.
A Title IX defense can be an uphill battle. In today's climate, respondents (the accused) are often treated as guilty even before an investigation. Schools don't always have a good grasp of the law, and they frequently get things wrong. Judicial processes can be complicated and difficult to navigate.
You can win, though, especially if you have the right kind of help. A successful defense requires courage, commitment, and tenacity. It also requires you hire an experienced Title IX attorney. So, learn what you can do to make sure your child gets treated fairly, but know that you don't have to do it alone. There are people out there, people like attorney Joseph D. Lento, who are ready to stand beside you.
What is Title IX?
Your first question may be, just what is Title IX anyway? Don't be embarrassed. Not a lot of people know about this federal law, and even fewer actually understand it.
In simplest terms, Title IX is the primary mechanism by which American education institutions deal with student sexual misconduct. That's a relatively recent development in the law's history, though, and its use in this regard is still a subject of contentious debate.
Title IX was originally passed by the US Congress in 1972. It was meant to guarantee women were treated equally in educational programs. The central portion of the text reads,
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.
This seems like a reasonable enough proposition. In fact, early on, the most controversial aspect of Title IX had to do with its impact on college athletics.
In recent years, however, the law has been interpreted to mean that schools aren't just required to eliminate their own discriminatory policies. Rather, they are obligated to promote a non-discriminatory atmosphere among their student bodies. At the same time, the definition of “discrimination” has been broadened to include not just prejudicial actions but any behavior that might potentially interfere with a woman's right to an equal education. That has been taken to mean all forms of sexual misconduct, from simple harassment to stalking, assault, and even rape.
Together, these two changes have left schools in charge of investigating and adjudicating even the most severe allegations of sexual misconduct.
Schools are meant to be places of learning, so, as you might expect, they aren't usually well-equipped to deal with matters of justice, especially weighty matters like these. In response, the government stepped in again in 2020. In May of that year, the Trump administration issued new guidelines designed to mandate how schools should deal with Title IX violations. Schools today are governed by a very specific set of rules. This has helped bring order to the system.
However, it is worth knowing that the debate continues. The Biden administration, unhappy with Trump's rules, has vowed to replace them with its own. Thus, while there are at present a clear set of procedures in place for how Title IX investigations should be conducted, these could easily change in the near future.
Title IX Procedures
How exactly does a Title IX investigation work? What can you and your child expect as the process moves forward?
Cases begin with a complaint. All school districts are required by law to have a Title IX Coordinator. Accusers make complaints to this individual. In addition, all high school staff and faculty are required by law to report any knowledge they may have of sexual misconduct. This means that, even without a willing complainant, a Coordinator can sign a complaint and initiate an investigation.
As soon as they sign a complaint, the Coordinator is required to notify the accused, or respondent, of the specific charges. You are entitled to know who has accused your child of misconduct and the details of the allegation. Notification should also include a statement about some of your fundamental rights:
- Right to be presumed not responsible until proven responsible
- Right to be treated equally to the complainant
- Right to choose an advisor, who may be an attorney
The Coordinator then appoints an investigator to gather evidence in the case. This person will interview both parties. They will also collect any physical evidence and talk to any witnesses. Investigators are expected to gather facts but to do so in an objective way. That is, they are not responsible for deciding your child's responsibility. That job belongs to yet another official, the “decision-maker.”
At the conclusion of the investigative period, the investigator completes a thorough written review of the case. Both sides have the opportunity to respond to this document before it is forwarded to the Title IX Coordinator.
At this point, the Coordinator has two options. They may appoint a single decision-maker to review the evidence and decide whether or not your child is responsible. Or they may schedule a hearing into the case, at which an individual or a committee will hear evidence from both sides before rendering judgment.
In either situation, you have the right to be engaged in the process. You may, for instance, submit questions for the complainant or for any witnesses. In addition, of course, your child will be asked to answer questions as well. If a hearing is convened, your advisor — not you — will ask relevant questions on your behalf to any necessary parties. Your advisor will also cross-examine the complainant and any necessary witnesses.
Once this part of the process is complete, the decision-maker(s) deliberate and issue their findings. They do not use the standard most of us are familiar with, the “beyond a reasonable doubt” standard. Instead, most use the “preponderance of evidence” standard, which states that a decision-maker must believe it is “more likely than not” that a violation occurred before they can find your child responsible.
Finally, under Title IX, schools are required to provide an appeals process. Either side may appeal the decision-maker's findings, but only under limited circumstances such as the discovery of new evidence or the revelation of bias on the part of a Title IX official. Most often, the Appeals Officer—who must be a different individual from the Coordinator, Investigator, and Decision Maker—reviews the case material before making a final judgment. Appeals do not normally involve a new hearing.
Title IX does not tell schools how to sanction students. Normally, schools maintain a range of penalties for sexual misconduct cases. In practice, however, the minimum sanction is suspension. Expulsion is often the far more likely outcome.
Title IX Defenses
Choosing an appropriate strategy for defending your child from allegations of sexual misconduct will depend on the particular circumstances of your case. This is yet another reason why having an experienced attorney at your side can be so essential. An attorney who has dealt with Title IX before will know the best way to approach your individual situation.
Of course, there are two obvious approaches an attorney might take in arguing such a case:
- Arguing the incident never occurred at all or didn't occur as the claimant says it did: In a court of law, a prosecutor must prove a crime occurred before they can convict a defendant. That requires concrete evidence in the form of physical evidence or witness testimony. The same basic principle applies in a Title IX case. If there is no evidence against your child, it should be difficult to prove they are responsible for sexual misconduct.
However, a Title IX investigation is not the same as a police investigation. A Title IX decision is not the same as a jury decision. Schools often place a great deal of weight on the credibility of each party. In addition, you should remember that the decision-maker doesn't need to believe your child is responsible “beyond a reasonable doubt,” only that that they are “more likely than not” responsible.
- Arguing as to intent: Usually, arguing about intent comes down to the nature of “consent.” That is, did the complainant provide consent for sexual activity or not? If your child genuinely believed they had consent and can prove that, they may be able to claim no violation occurred.
There can, of course, be very subtle distinctions when it comes to consent. For instance, body language and tone of voice, as well as an individual's ability to read these, can plan a large part in deciding if a respondent intended to do harm to a claimant. Again, such questions can come down to each side's credibility.
Protecting your child, though, won't always be about proving their innocence. In some cases, the very best option is to negotiate a settlement with the district, something that will keep your child from facing unfair sanctions and help them rebuild their lives. Here too, attorneys have the backgrounds to facilitate precisely this kind of negotiation.
What Do I Do Right Now?
All of this information should help you better understand Title IX and how to go about mounting a Title IX defense. In the short term, though, what should you do to protect your family?
- First, before you do anything else, hire a Title IX attorney. This person will be able to handle most of the hard work that lies ahead.
- Don't talk to officials, especially without your attorney. As soon as you hire a lawyer, they will negotiate with the district to get you time to prepare your defense strategy. There's no reason you should be rushed into talking with district officials, the Title IX Coordinator, or an investigator.
- Don't try to contact the other party. You will be tempted to believe that if you can just talk to the other family, you can sort out the situation. It is too late for that. Even if that were possible, the school might still proceed against you. More likely, your attempt to negotiate a settlement directly will only further anger the complainant's family and be seen by the district as evidence of your child's guilt.
- Limit who you tell about your case. It can be useful to have a family friend you can talk to about your situation. Keep these to a minimum, though. The more people you tell, the greater the chance the case will become public. Never talk with the media.
- Keep records. Preserve evidence. You never know if a piece of evidence will help your case. Let your attorney decide. In addition, document every contact you have with school officials. This can be vital in determining if your child's rights were violated.
Call Attorney Joseph D. Lento for Title IX and Sexual Misconduct Help
It's your job to take care of your children, but you don't take care of them all on your own. You take them to doctors and dentists. You sign them up with coaches. You ask family members for advice. When your child is facing an accusation of sexual misconduct, you can't handle it on your own. The risks are too great, the situation too complex. You need help.
Joseph D. Lento is a qualified, experienced Title IX attorney. He built his practice on defending Title IX clients across the United States. He's helped hundreds of families just like yours respond to allegations.
Attorney Joseph D. Lento knows the law. He understands Title IX, its history, and its politics. He also knows how K-12 schools operate. He spends every day meeting with families, talking with school administrators, and helping the two reach fair solutions. Whether you're looking to prove your child's innocence or you're trying to negotiate a fair settlement that will preserve their educational career, attorney Joseph D. Lento will fight hard to get you the best possible outcome for your case.
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.
