Retaliation and Title IX Cases

Title IX was established in 1972 and was intended to address sexually-based discrimination in all U.S. educational institutions. Compliance is required for maintaining eligibility for federal education funding. Among the most severe types of violations are rape, battery, and other acts of sexual violence committed against the will of a victim. Acts of sexual harassment may be committed either verbally or non-verbally and place the victims in an environment that is not conducive to learning.

Acts of discrimination may involve preventing someone from participating in programs or impede access to benefits based on someone's gender or sexual orientation. Other examples of violations include making inappropriate sexual advances or requests for sexual favors. Title IX violations are typically assessed in a hearing that applies a “preponderance of the evidence” standard and recent changes also allow an institution to evaluate the allegations using a “clear and convincing” standard. Both options are a lesser burden of proof compared to “beyond a reasonable doubt” that is used in criminal actions.

If a Title IX complaint is proven, the student will likely be suspended or dismissed from the institution. Schools are all required to designate a Title IX Coordinator that will create and maintain their Title IX written guidelines, which should be reasonably accessible to all within the college or university community. Federal guidelines allow the school some flexibility in creating their policies and processes; however, the emphasis is placed on ensuring all parties are treated fairly and equitably.

Parties are all permitted to choose an advisor that will assist and provide support during hearings and other Title IX proceedings. Respondents facing allegations related to sexual misconduct are strongly encouraged to retain a seasoned lawyer to serve in this critical role. An attorney-adviser will assist in interpreting your institution's unique guidelines, will work to ensure your rights are protected, and make sure you are sufficiently prepared to clearly deliver statements and confidently respond to any questions.

Retaliation and Federal Civil Rights

The Office of Civil Rights (OCR) has responsibility for administrating federal laws involving civil rights such as those that forbid discrimination of the basis of race, sex, sexual orientation, national origin, etc. Federal law also prohibits acts of retaliation against others for making complaints or having other involvement in Title IX actions. Individuals are encouraged to confront discrimination and other acts that detract from equality; therefore, retaliation must be prevented against anyone involved in protected activity such as:

  • Those acting in opposition to behavior such as harassment or discrimination
  • People who file a formal complaint about a potential violation of Title IX against a student
  • Individuals that have involvement in investigating, testifying, or otherwise participating in Title IX matters

Respondent Retaliation Against Complainant Who Reports Misconduct

Schools must make efforts to prevent retaliation against students who file a complaint on their behalf or behalf of another potential victim such as a witness. Title IX guidelines require schools to take action to ensure the safety of complainants and witnesses. These actions may include interim measures such as no-contact orders that prohibit any contact between an alleged perpetrator and a complainant or witness.

The institution's written Title IX provisions should address retaliation and explain that those in violation will face significant consequences. Administrators should be aware that complainants or witnesses to acts of sexual violence may be at greater risk for retaliatory action committed by the subject of the complaint or third-parties associated with the accused.

Retaliation Against a Student for Participating in OCR Action 

Schools and other recipients of federal funding are prohibited from taking retaliatory action against individuals who report or otherwise participate in an OCR investigation, such as for non-compliance with Title IX or other laws. Guidance from the OCR explained that individuals should be encouraged to and applauded for reporting potential non-compliance with civil rights provisions rather than discouraged or penalized for doing so.

Violations such as those related to sexual discrimination may go unreported if students, parents, faculty, or others are subject to acts of retaliation for addressing such concerns. Examples of retaliation against a student who makes a complaint or otherwise engages in an OCR probe or proceeding may include giving poor grades, not permitting the individual to participate in school-related activities or additional penalties.

OCR Process for Responding to Institutional Retaliation

The OCR will investigate potential violations. The OCR may initially propose that the institution agree to voluntarily participate in creating a plan of action to resolve the failure in proper compliance. This process may involve some reparations for the party that was the subject of retaliation and remedial actions necessary to prevent further breaches of institutional compliance.

Based on the specific circumstance and the nature of the failure in compliance, the OCR may impose monetary penalties as well as some of the following measures:

  • That a training program be implemented for faculty and staff regarding the importance of preventing retaliatory actions
  • The implementation of a comprehensive strategy for communicating information regarding compliance and preventing retaliation to all staff, which may include community outreach and educational initiatives
  • Efforts to reach the public that provide reassurances that measures have been taken toward compliance

The OCR does have the option to impose additional penalties. These may include suspending or terminating eligibility for federal funding and assistance.

Importance of Having Knowledgeable Advisory Representation

Those pursuing higher education are making a substantial commitment of time and financial resources. In today's dynamic and competitive academic environment, institutional administrators are well-aware of the importance of maintaining an excellent image and reputation. The school's leaders tend to have lofty expectations and are often seeking to swiftly and strictly resolve any matters associated with sexual misconduct.

Respondents faced with allegations of violating Title IX provisions will likely be the subject of an investigation, which may be conducted by individuals who are overworked and may proceed haphazardly. Often, these individuals take "shortcuts" or somehow fail to properly recognize the rights of accused parties under federal guidelines.

Experienced Title IX Attorney Represents Students in Disciplinary Proceedings

The Lento Law Firm has many years of experience representing college students faced with allegations of violating Title IX. They will strive to safeguard your right to due process and serve as an advocate for your best interests. Please call the office today at (888) 535-3686 for assistance.

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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 our offices today, and let us help secure your academic career.

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