Title IX was established in 1972 by the U.S. Department of Education and ongoing guidance and enforcement is the responsibility of the Office of Civil Rights (OCR). The purpose was to address concerns related to sexual discrimination in the nation's education system. Schools must maintain compliance to remain eligible for critical federal funding. Complaints may be brought against students, faculty, staff, adjunct staff, coaches, and others associated with the college or university community.
Sexually-based discrimination may involve preventing entry into programs, denying someone access to benefits, or impeding participation in activities based on sex or gender. These acts may occur in areas such as admissions, scholarships, athletics, employment, and others. Title IX also prohibits acts of sexually-based violence such as assault or coercion that are committed against unwilling victims. Violations may involve sexual harassment such as promoting false stereotypes or making inappropriate slurs against those whose gender identity or sexual orientation does not conform to societal norms.
Those who make are alleged victims are known as complainants and the accused party is a respondent. After receiving a complaint, the allegations are to be investigated promptly, fairly, and equitably. Federal guidelines emphasize that all parties are afforded their due process. Having a knowledgeable Title IX attorney is critical in protecting these rights and minimizing potential ramifications.
Role of Resident Advisors (RA) in Post-Secondary Education
A resident advisor is typically both a student and employee at their college or university who is responsible for the supervision of those students living in a residence hall (dormitory). They often are provided with housing and meals free of charge or at a reduced rate and some form of a stipend or other compensation. The individual is often seen as a mentor for students living on campus and an enforcer of school policy.
The RA usually resides within the housing unit(s) that they have responsibility for and have significant interaction with the students. An RA may find themselves among the first people to respond to incidents of sexual violence; therefore, they are generally trained in the school's security protocol and know the options available for students seeking counseling, community health, and other support services.
RA Role as a Responsible Employee Under Title IX
Under the current Title IX guidelines, the majority of those employed at a post-secondary educational institution are deemed as responsible employees. Exemptions to this requirement are most common among those working as professional counselors or pastoral advocates. Responsible employees have a mandatory reporting requirement according to Title IX. They are obligated to promptly report suspected acts of sexual misconduct to the Title IX Coordinator or another school official.
The mandatory duty to report applies to potential Title IX violations that the responsible employee witnesses, is informed of directly from an alleged victim, through hearsay, etc. Schools are responsible for properly educating these employees about their role and obligations and any potential sanctions that may be imposed for failure to comply. An employee who reports an alleged violation should communicate any relevant information they receive including, the names of any parties involved, time, date, location, etc.
The Basis for RA as a Responsible Employee
The OCR addressed the role of an RA specifically in Questions and Answers on Title IX and Sexual Violence report. Schools must assess which employees should have a mandatory reporting requirement under Title IX. In making this determination, the institution must consider if the RA generally has some authority to prevent and respond to acts of misconduct and whether students perceive them as serving in some disciplinary role. This is generally the case among students who reside within the residential units where they are assigned.
RA Response to Student Complaints
If a student approaches an RA with information regarding a potential violation of Title IX, they are encouraged to share (disclose) some specific information when possible. The RA should explain that they have a reporting requirement based on their role as a responsible employee. The student should be informed that they may request that their identity remain private (confidential); however, depending on the circumstances, this may not be possible. OCR guidance has indicated that they respect and support the concept of confidentiality, particularly in matters involving alleged sexual violence.
The OCR recognizes that a failure to comply with complainant requests for confidentiality may deter other individuals from reporting incidents. This must be considered in light of the federal obligation that the institution has to all respondents who may be unable to effectively defend themselves if the identity of the complainant is not revealed. Also, the responsible employee is encouraged to inform the respondent of the resources available for discussing information confidentially, such as counselors.
When Schools May Face Civil Liability
A school or district may potentially be liable for acts such as sexual harassment or assault committed by employees, such as an RA. This applies if the institution has been made aware or should have been aware that acts of great severity occurred. The school is deemed as having actual knowledge when an appropriate school official is made aware and the institution's response is deliberately indifferent.
Title IX Violations Against Employees
A Title IX violation may be committed when an employee violates the provisions while conducting their regular job responsibilities such as teaching or advising. Discrimination may involve an employee treating students in different ways regarding their eligibility for services or benefits based on their gender or sex, such as denying opportunities to certain students.
Some examples that may involve an RA include:
- Failing to report an allegation that a student was being stalked by another student
- Making an unwelcome sexual advance toward a student that constitutes harassment
- Sexual misconduct such as non-consensual sexual contact, sexual assault, and other offenses
When a resident advisor is accused of almost any kind of violation under Title IX, but especially those involving sexual misconduct allegations or serious dereliction of duty, the school will suspend the RA from his or her responsibilities as an RA.
A suspension, in addition to the immediate harm to one's reputation and disruption to one's day to day schedule, can have other consequences such as when a student depends on his or her position to help with the cost of college when a student is hoping that his or her performance as a RA can help with a competitive advantage towards future goals such as securing internships or professional employment or when applying to graduate school, and so forth. In such instances, what was once a boon for a college student can, in fact, become a bane.
Employee Acts of Retaliation
The Title IX guidelines prohibit acts of retaliation against complainants or witnesses. The school has a responsibility to document these concerns in its written guidelines and may impose penalties. A Title IX Coordinator or another designated school official may implement interim measures such as non-contact orders to efforts to protect parties.
Rights and Protections of Employee Respondents
Faculty, staff, and other employees of a college or university are entitled to the same set of rights as students in Title IX actions. Some of the protections include being treated with respect, having the right to request confidentiality and to have all allegations fully disclosed in writing. Unfortunately, there are instances where institutional administrators may fail to consider the rights of employee respondents; therefore, is strongly suggested that faculty, staff, and others promptly consult with an attorney.
Benefits of Having Seasoned Legal Representation for Title IX Matters
Those employed in the many areas of an academic institution may face direct allegations of sexual misconduct that violate Title IX or be accused of improperly responding to complaints involving others. Federal guidelines are volatile and subject to modification. Faculty and staff who find themselves involved in these actions must seek assistance from a lawyer that remains abreast of this unique area of practice.
Title IX Attorney Represents Faculty and Staff at Colleges and Universities
Joseph D. Lento is a lawyer that is well-versed in handling matters related to Title IX. He understands the potentially difficult consequences that can result, such as challenges with your current and future employment and your personal and professional reputation. He will strive to protect your right to due process and pursue positive results. Contact the office today at (888) 535-3686 for additional information.