If you've been accused of sexual misconduct by your college or university, you've probably already heard about Title IX. That's because for many years, Title IX has been the primary tool colleges and universities use to investigate and adjudicate sexually-based offenses.
Maybe you've even done some research into Title IX. If so, you'll know it offers a clear set of guidelines for how all schools are supposed to treat students charged with sexual misconduct. For instance, under Title IX:
- Your school must assume you are innocent until you are proven “guilty” or “responsible.”
- You are entitled to appoint an advisor to help you defend yourself, and this advisor can be an attorney.
- You will be given a chance to confront your accuser and respond to accusations during a formal hearing.
Good for you. It's never a bad thing to be prepared.
Here's the thing, though: You might not be dealing with Title IX. You could be facing a completely different process, one dictated not by the government but by the whims of your individual school.
Why? The answers are complicated and have to do with recent changes to the law and the political chaos these changes have caused. We'll get into all of that as we go. What you need to know now is that it's no longer enough just to research Title IX. These days, you also need to have a clear understanding of how your university deals with so-called non-Title IX sexual misconduct cases. You're in luck, though, because you'll find the answers you need below.
The Beginnings of the Title IX Era
It might seem odd to start a discussion of non-Title IX sexual misconduct cases by talking about Title IX. As it turns out, though, knowing a little about how things worked in the past is essential for understanding how things work today. So first: a little context.
The U.S. Congress passed Title IX nearly five decades ago, in 1972. The law's purpose was clear: to eliminate sexual harassment and discrimination in U.S. educational programs.
Today we take for granted that women are entitled to the same educational opportunities as men. College campuses are among the most welcoming spaces for women in all of American society. Indeed, academia has begun to grow concerned at the fact that men now make up only 40% of students nationally.
It wasn't always this way, though. There was a time when women weren't allowed to study certain majors or even to attend college at all. Many schools maintained strict dress codes and curfews for women. Some even required women to get their parents' permission before enrolling.
To the extent that things have changed, we have Title IX largely to thank. It helped make for better university environments, and those positive effects trickled into the larger society.
For all the good it has done, though, the law has also caused its fair share of problems.
Almost from the moment it was passed, Title IX has been a source of contention. The central text of the law is deceptively simple; it's just one sentence long. It 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.”
What, though, is the definition of “discrimination”? Most of us would probably take discrimination to mean something like “treating some people differently from others based on their status.” Thus, Title IX would prohibit treating women differently from men, specifically when it comes to pursuing an education. Under this basic definition, Title IX would seem to prohibit things like judging college applicants according to separate standards based solely on their sex; or assigning female students different assignments than males.
However, over time legislators and judges have interpreted discrimination to mean something much broader: for the purposes of Title IX, discrimination has come to mean any sex-based action of any kind that in any way interferes with a person's ability to obtain an equal education. That's pretty broad. Based on this interpretation, discrimination doesn't just mean unequal treatment. It refers to any barrier of any kind, whether or not the school is actually responsible for that barrier. Rape qualifies as a Title IX violation since it inhibits a person's ability to get an education. So, too, can inappropriate jokes.
This shift in definition came to have an enormous impact on how the law was enforced.
Schools in a Bind
Most schools fell quickly into line when it came to eliminating basic forms of discrimination like varying admission standards. That's because the law didn't just ban sexual discrimination - it also threatened to withhold federal dollars from any school that refused to cooperate. That provision made sense under the narrow definition of discrimination. It demanded colleges treat women fairly.
Problems arose, though, as the definition expanded.
When it came to discrimination, it was easy enough for universities to police their own employees. A faculty member who wouldn't stop barring women from his classes could be replaced. Under a broad definition of discrimination, though, schools were suddenly responsible for policing their students as well. Typically, companies have no trouble disciplining their employees. It's an entirely different matter, however, when a company has to discipline its customers.
Among other problems, schools were now forced to serve as stand-ins for the police and courts. They were dealing with alleged actions as serious as stalking and sexual assault. Yet, instead of seasoned judges and experienced attorneys working to find the truth, campus justice was forced to rely on physics professors and English adjuncts.
At this point, the government might have stepped in and corrected the situation, limiting the scope of “discrimination” or re-defining Title IX itself. It didn't. Instead, it allowed colleges and universities to use a watered-down version of American justice, one so simplified that it wouldn't require complexities like attorneys, juries, motions, and objections. No reason to worry about complicated legal principles like “guilty beyond a reasonable doubt.” Just let hearing panels use their best judgment. Why force faculty to make difficult decisions about whether or not a cross-examination question is appropriate? Allow panelists rather than attorneys to ask the questions and let them ask whatever they think is relevant.
All of this might seem problematic from a justice standpoint. Yet, the argument was that since students weren't being sentenced to prison, justice didn't really need to bother with all the important safeguards that protect defendants from being falsely convicted. Never mind the lost tuition and opportunities that come with a school's finding.
Over time, this same argument led to the erosion of more and more rights for the accused. By the time of the Obama administration, schools were not required to hold hearings or to let the accused cross-examine witnesses against them. Investigators were instructed to believe all claimants, even if that meant pre-judging respondents. Given these attitudes, it's not surprising that some schools went further. Ole Miss actually published training materials that directed investigators to treat “lies” from the claimant as proof they were “telling the truth.”
Meanwhile, the punishments for Title IX cases became more severe. Typically, suspension is the minimum sanction a school will impose in such cases. Even in that best-case scenario, the student has a gap in their transcript they will have to explain forever. More frequently, schools expel students who are found responsible for sexual misconduct and include a transcript notation as to the nature of the offense. That means students aren't just removed from their universities; they are effectively being barred from enrolling anywhere else. A sentence that can obviously have a lasting effect on these students' careers, making it difficult to find a job in the first place and difficult to advance once they've found one. In short, the idea that schools should be permitted to bend the rules of jurisprudence because "so little is at stake" just doesn't hold water anymore. The stakes are incredibly high.
Enter Donald Trump
Surely, you knew Donald Trump would have to come into this story at some point.
From the moment Trump took office in January 2017, Title IX reform was at the top of his agenda, though it would take almost to the end of his first term to meet this goal. In May 2020, Trump's Department of Education, under the leadership of Secretary Betsy DeVos, finally released what it called the “Final Title IX Rule”. Those rules officially took effect in August 2020, with the start of the fall semester.
In broad terms, the new guidelines changed a number of key components of Title IX enforcement. Among these changes:
- The definition of “discrimination” was narrowed. Title IX today still applies to behaviors such as rape and stalking. However, the administration limited or eliminated the enforcement of what it viewed as less serious violations. Verbal harassment is a good example. To qualify as a Title IX offense, speech must now be “severe, pervasive, and objectively offensive.”
- School jurisdictions were limited as well. Under current guidelines, in order to qualify as a Title IX violation, an incident must occur on-campus or “in conjunction with an education program or activity.” In other words, activities that take place in apartments near campus aren't covered, even if both the persons involved are students. Nor are study abroad incidents that take place overseas.
In addition to these general changes, the administration was eager to extend more specific due process rights to respondents. The new rules place important restrictions on how investigations can be handled. More significantly, they mandate a live formal hearing in all Title IX cases. As part of this process, the accused now have the right to present evidence and cross-examine any witnesses.
The Response: “Non-Title IX Sexual Misconduct”
Still wondering what any of this has to do with non-Title IX cases? We're just getting to that part.
The new rules issued by the Trump administration might have served as an important correction to the Title IX process, restoring balance to a justice system that far too often favored complainants over respondents. In fact, defense attorneys, justice advocates, and free speech proponents had been calling for similar changes for a number of years. Reform was past due.
Instead of reasonable reform, however, the new rules wound up creating absolute chaos.
Victims' rights groups and informal women's organizations such as the #MeToo movement protested the changes loudly and vociferously. Meanwhile, many colleges and universities viewed the changes as a direct affront to their authority and an attempt to undermine the good work they had done over the last fifty years in the name of equal rights. Several states' attorneys general even sued the administration on their school systems' behalf to prevent the rules from taking effect.
When none of these tactics worked, many schools determined to take another, ultimately more insidious, approach to the problem. Rather than take on the Trump administration directly, these colleges and universities simply created a new system for dealing with sexual misconduct allegations. They wrote new policies, new rules—usually under their Student Codes of Conduct—that basically outlawed all the behaviors Title IX no longer covered.
Collectively, all these new violations have come to be known as “non-Title IX sexual misconduct.”
- Many of these universities have reclaimed their jurisdictional rights under their own rules, vowing to investigate any incidents that involve students, no matter where they may occur. If it happens in an apartment, a school has no authority under Title IX. They can grant themselves authority in the Student Code of Conduct, though.
- Where current Title IX rules don't mandate that all faculty and administrators must report any incident they hear of, schools have written such requirements into their own faculty handbooks.
- Where Title IX only covers “severe, pervasive, and objectively offensive” language, some schools have outlawed lesser harassment in their own policies.
While taking such approaches flies in the face of the new guidelines' intentions, it might have worked in a reasonably straightforward fashion if all these schools were after was ensuring no offensive behaviors go unpunished. Tightening their own policies merely has to do with defining offenses as they see fit. Plagiarism offers a good analogy. Copying someone else's work in a history class doesn't break any laws. Yet, schools are perfectly within their rights to make allegations and punish students found responsible for committing it.
However, schools seemed equally offended by the idea that they would have to respect the rights of the accused. Rather than just broaden their own definitions of “discrimination” to compete with the federal government's, they also moved the justice processes in such cases under the Student Code of Conduct. Doing so removed those cases from any government protections extended by Title IX. For the most part, schools haven't been eager to replace those protections with protections of their own.
The new Title IX rules don't expressly prohibit schools from creating and enforcing their own policies, and in fact, the Biden administration, since taking over in early 2021, has actively encouraged schools to do this, though that has created a somewhat awkward situation. In effect, the government has now taken the unusual step of trying to dilute its own law. In a Question and Answer document published in July 2021, for instance, the Department of Education's Office of Civil Rights noted, “The 2020 amendments set out the minimum steps that a school must take in response to notice of alleged sexual harassment. A school may take additional actions so long as those actions do not conflict with Title IX or the 2020 amendments.”
What does this mean? In simplest terms, it means that schools are free once again to treat sexual misconduct cases however they like. In some circumstances, you can be accused of a crime as serious as rape, be found responsible, and expelled, without ever having the opportunity to defend yourself or offer any evidence to exonerate yourself. That's how we wound up with non-Title IX sexual misconduct.
A Comparison: What Rights Does Title IX Guarantee?
Where does all this history leave things? Many schools now have two separate processes for dealing with sexual misconduct: The Title IX process and the non-Title IX process. Obviously, this situation confuses matters. You might ask, what difference does it really make? It turns out quite a lot.
It cannot be emphasized enough: Title IX is not perfect. Even after the Trump administration's changes, the law provides unfair incentives for universities to go after their own students too aggressively. The investigation and hearing processes remain heavily biased in favor of complainants.
However, under current guidelines, the law does provide respondents with some important basic rights:
- The right to a presumption of innocence: Under current Title IX rules, accused students must be presumed innocent until they are proven responsible. It is important to note that his presumption does not require schools to presume complainants are lying. Even so, it does mean schools cannot merely take a complainant's honesty for granted.
- The right to an advisor: Title IX specifies that respondents are entitled to appoint an advisor. In fact, it says that only an advisor can ask questions of witnesses during a Title IX hearing. That means schools must provide students with an advisor if a student doesn't have one. In addition, a student is entitled to hire an attorney to serve as their advisor (though schools aren't required to go this far). The advisor can accompany students to meetings with investigators. They can help students gather evidence and question witnesses. Ultimately, they represent the student during the hearing.
- The right to equal accommodations: When complainants arrive at the Title IX office to make their formal accusation, Title IX mandates that the school must offer them support services. These almost always include access to health and mental health care. In some cases, they can include relief from classwork or leaves of absence from the university. Current Title IX guidelines state that respondents are entitled to the same support services as claimants.
- The right to be judged by consistent standards. Title IX doesn't require schools to use the “guilty beyond a reasonable doubt” standard for deciding cases, and none do. Most use the “preponderance of evidence” standard. Based on this standard, case decision-makers must only decide a respondent is “more likely than not” to have committed the offense in order to find them responsible. Defense attorneys sometimes refer to this as the 50% plus a feather standard since decision-makers must be only just over half convinced a person is guilty in order to convict.
However, many faculty unions have negotiated for a higher standard, the “Clear and Convincing” standard. Clear and convincing means the facts must be “highly probable” in order to find someone responsible. Title IX rules say that students are entitled to be judged under the same standard as faculty members.
Further, Title IX dictates that a university's policy must be clear as to how investigations and hearings proceed. For example, schools must have a written policy that states how long an investigation can go on. They cannot change these policies to suit the parameters of an individual case. This applies to the standard of evidence as well.
- The right to present evidence: Respondents are entitled to present evidence of their innocence to an investigator, and investigators are required to take that evidence into account. Respondents also have the right to draw an investigator's attention to any potential witnesses.
- The right to a live hearing: Respondents have a right to a hearing at which they may defend themselves and present evidence. This hearing must be live, though it can be conducted via closed-circuit video. Hearing decision-makers may not rely solely on an investigator's report but must consider all materials from a fresh perspective. Further, decision-makers cannot rely on testimony from witnesses who do not appear.
- The right to cross-examine. Respondents have the right to cross-examine any witnesses, including their accusers. Hearing officers can limit questions if they are repetitive or if they violate certain prohibitions, such as discussing a complainant's sexual history. However, they cannot prevent open questioning. This includes the right to cross-examine a complainant who testifies.
Non-Title IX Sexual Misconduct Cases
If you're facing a non-Title IX sexual misconduct case, what can you expect? The simple answer is, there is no simple answer. Once schools are operating outside the bounds of Title IX, they are under no obligation to take any particular actions. That is, every school can develop its own justice procedures with its own idiosyncrasies. If that sounds chaotic, it is.
What kinds of rights are you guaranteed if your school doesn't use Title IX to investigate? The answer there is easier: None. Because you aren't being tried in a court of law, a school doesn't have to afford you any particular rights. Of course, most schools do incorporate some basic safeguards into their Student Code of Conduct. However, these are often minimal and certainly well below what you'd expect in a courtroom.
By and large, schools are now dealing with non-Title IX sexual misconduct cases in one of three general ways:
- First, some schools have actually adopted Title IX guidelines for all their sexual misconduct cases. They follow the basic rules laid out in 2020 by the Trump administration. Some only deal with sexual misconduct as defined by Title IX. Others use the same procedures even in instances that don't fit the law's strict definitions.
Some schools only use the Title IX standards in non-Title IX cases if suspension or expulsion are potential sanctions.
A few schools, though, have gone so far as to adopt such standards in all cases where suspension or expulsion might be the penalty, even when those cases don't have a sexual component.
- Other schools use some modified version of Title IX procedures. Often, for example, respondents in non-Title IX cases are still entitled to a full investigation and to appoint an advisor who may be an attorney. They may even be entitled to a hearing.
Important Title IX protections may be missing from the process, however. Some schools, for example, provide only an investigation. At the conclusion of the investigation, the investigator basically decides the case.
Other schools provide a hearing but place severe limitations on the proceedings. Advisors may not be allowed to speak. It may be that only hearing officers or members of the panel are allowed to ask questions. The case may not be heard by a panel or committee at all but rather by a single individual empowered to make all the decisions.
- Finally, there are those schools that afford students almost no protections in non-Title IX cases. Some colleges and universities don't even guarantee a formal investigation will take place. Instead, a committee decides the case. The members may not hear from the defendant at all. They may not actually examine physical evidence. Often, they base their decisions on a version of events rather than looking at all the facts.
If your case falls outside the new Title IX guidelines, your school will use one of these three approaches for handing it. The only way you can know which one they will use and what specific processes and procedures you'll face is to do some investigating for yourself.
Sometimes you can find the answers by looking up “non-Title IX sexual misconduct.” Not every school defines things so clearly, though.
Another useful strategy is to examine your specific school's Student Code of Conduct. Start by looking through the rules to see if the school has its own definition of sexual misconduct. What is that definition exactly, and how does the allegation against you fit within its parameters? Next, find out how your school deals with Student Code of Conduct violations. You can be sure they will have a set of procedures they follow in such cases. Take careful note of just what you might be facing.
What Do You Do?
No matter what kind of sexual misconduct case you may be dealing with, Title IX or non-Title IX, your first priorities should be roughly the same.
First and foremost, take a deep breath. The situation, as we've outlined it, may seem difficult. It may very well be difficult. That doesn't mean you can't get through it with patience and resolve. You should most certainly take the accusation against you seriously. By the same token, though, you should not panic.
Once you have a handle on the situation, your next job is to find a qualified Title IX attorney to help. Most schools will allow you to choose an advisor to help you with your case, especially if you could be suspended or expelled. And most allow you to choose an attorney as your advisor. This is usually true whether you're being investigated under Title IX or not.
Why do you need a Title IX attorney specifically? After all, you may be looking at a non-Title IX case. Remember that non-Title IX cases have come about as the result of the history of Title IX itself. No one understands that history better than the lawyers who have specifically trained to defend against it.
Keep in mind as well that a non-Title IX case involves many of the same components as a Title IX case.
- You'll still be dealing with school administrators and faculty. Title IX attorneys know how to negotiate effectively with these groups, whatever kind of accusation you may be facing.
- You'll still be trying to balance the demands of defending yourself with continuing as a student. Title IX attorneys are experienced in working with students and with helping them deal with the specific problems posed by campus justice systems.
More specifically, what can a Title IX attorney do for you if you've been charged with a non-Title IX sexual misconduct offense? That may depend on your specific situation and which of those three approaches your particular school uses.
- If your school treats non-Title IX offenses using the same set of procedures as it does for Title IX offenses, a Title IX attorney will obviously be well-practiced in helping students through the entire process, from the investigation, through a hearing, and on into any appeals.
- If your school uses some modified version of Title IX procedures, it's likely you will still have the right to appoint an attorney as your advisor. Again, a Title IX attorney knows how Title IX works. Additionally, though, they'll know how to navigate through a non-Title IX procedure. It's important to remember that only recently did Title IX mandate hearings and cross-examination. Experienced Title IX attorneys will almost certainly have already dealt with whatever sort of approach your school takes.
- If your school doesn't incorporate any aspects of Title IX cases, you may have more difficulty defending yourself. There are some schools that will bar you from bringing an attorney to an investigative interview. Some may not even offer you a formal hearing. You might believe that in such cases, an attorney just won't be able to help you.
In fact, the opposite is true. First, your attorney can help you prepare, even if they can't actually accompany you to meetings. They can help you plot a strategy for defending yourself. Second, they can contact the school and let them know that you do have representation, that you do have someone in your corner looking out for your best interests and making sure your rights are protected. Finally, though, a Title IX attorney always keeps a thorough record of everything that happens during your case. Why is that important? More and more students have been bringing federal lawsuits against their schools over the last decade for violating their rights. Frequently, courts are siding with students. Should you lose your case, the notes your attorney takes can serve as the foundation of a lawsuit to restore your good name and get you the compensation you deserve for the unfair ways you've been treated.
What to Look for in a Lawyer
What you're facing isn't easy. It's an enormous step simply to recognize just how serious your situation really is. Finding an attorney to help can feel overwhelming.
Unfortunately, that leads many students to choose the wrong attorney. You may be tempted to use a family attorney. A family attorney knows you, you feel comfortable talking to them. You're not actually being tried in a court of law. You can't be sentenced to jail time. It should be easy, right?
If you take only one thing away from this guide, it should be that sexual misconduct cases are far from easy. Family attorneys aren't trained to deal with the specific problems inherent in dealing with a college or university. They don't know how faculty and administrators operate; they don't know how to talk with them, they don't know how to negotiate with them. Title IX attorneys specialize in helping students. They know what you're up against, and they know how to deal with it.
Other students opt to go with a local attorney, thinking it will be better to have someone on their side who knows the local system. Title IX is a federal law, though, and hometown lawyers aren't typically versed in all its particulars. Even in a non-Title IX case, you need someone on your side who understands Title IX.
Attorneys who work on student sexual misconduct cases aren't limited in where they can practice. It doesn't really matter what state you are in or what state your attorney is in. What matters is that you hire a qualified Title IX attorney.
How do you find out if your attorney is qualified? It's important to ask questions.
- How long have they been practicing law?
- How much experience do they have with student cases?
- What kind of record do they have defending students from Title IX and non-Title IX charges?
If you've already recognized just how serious the charges against you are, then you should also recognize that you need serious help. You wouldn't ask your family physician to perform heart surgery on you. Don't trust just any attorney to take your sexual misconduct case. Find someone who understands student defenses and can get you the best possible outcome for your case.
When to Contact Attorney Joseph D. Lento
If you've found out your sexual misconduct case isn't going to be treated as a Title IX violation, you may be breathing a sigh of relief. You may think the case won't be so serious. Maybe you won't have to deal with a formal hearing. Surely the worst that can happen is a slap on the wrist.
Don't believe it.
The fact is, non-Title IX cases can be far more complex than Title IX cases. Your school isn't under any obligation to follow government guidelines. They don't have to treat you fairly, and in all likelihood they won't. You will face serious sanctions. You are just as likely to be suspended or expelled. You'll likely have fewer rights as you fight to prevent that from happening, though.
Don't toy with your future. You need the best Title IX attorney out there: you need Joseph D. Lento. Attorney Joseph D. Lento built his career defending students just like you from sexual misconduct charges. He's dealt with all kinds of cases, and he's been doing it long enough to know every kind of situation you could possibly be facing. Attorney Joseph D. Lento is empathetic. He recognizes that you're a student and that your situation is unique. He's here to help.
Make no mistake, though: when it comes to fighting against school administrations, attorney Joseph D. Lento is tough as nails. He knows your school will try to deny you the rights you deserve, and he's devoted his life to preventing them from doing so.
If you or your child has been accused of a non-Title IX sexual misconduct offense, don't wait. Contact the Lento Law Firm today at 888-555-3686 or use our automated online form.