The Importance of Due Process in High School Title IX Cases

We hear a lot these days about victims' rights, especially when it comes to allegations of sexual misconduct. Of course, we all want to see victims get the justice they deserve. That can be an essential part of the healing process. The problem is when that desire comes up against our commitment to treat accused persons fairly under the law. It's not always popular to argue for defendants' rights, but they may actually be more important than victims' rights.

Due process—the mechanism that ensures fairness—is one of the most essential elements of the American judicial system. The Fifth Amendment specifically guarantees that no person accused of a federal crime shall be “deprived of life, liberty, or property, without due process of law.” The Fourteenth Amendment extends the same protections to those accused of state crimes. In fact, the principle of due process dates back even further to the very foundations of modern Western government, the Magna Carta signed in 1215.

You might assume, then, that if your child has been charged by their high school with sexual misconduct, they're automatically entitled to due process protections, even in the contemporary political climate. After all, who deserves fair treatment more than children?

It turns out, things aren't quite so simple.

In many ways, issues of due process are at the heart of any discussion of Title IX, and understanding these issues is crucial to mounting a strong defense.

What Is Due Process?

The phrase “due process” gets thrown around a lot, but it's not a simple concept. It has a long history, and its usage has frequently been the subject of contentious debate. Legal experts argue over what qualifies as due process: Should the police be allowed to lie to suspects? They argue over how it may be applied: does it protect landowners from having their property seized under eminent domain laws?

In simplest terms, though, due process is usually taken to mean those procedural components of our justice system that are designed to ensure fairness. In general, our courts operate on the principle that we would rather some guilty people go free than that we punish someone who is innocent. So, we build in protections designed to make sure that's how it all works.

As a starting point, we presume that accused persons are “innocent until proven guilty.” No one must prove they are innocent; rather, it is the state's burden to prove they are guilty. Likewise, we don't force defendants to testify against themselves. We guarantee everyone the right to legal representation. We also believe those on trial have a right to be judged by a jury of their peers.

It's not hard to imagine what might happen if we didn't have these protections. If the police decided a defendant's guilt rather than the courts, the whole system would be much more streamlined. However, there would likely be a lot more people in prison. We need separation between the two to be sure no conflicts of interest develop.

Anyone who understands the law knows that we can't let go of due process rights without putting the very idea of justice in jeopardy.

A History of Title IX

Here's the thing, though: A high school isn't exactly the same as the federal government, and a school hearing for a policy violation isn't the same as a court of law. That has led some to believe that schools aren't obligated to provide students with due process rights.

Title IX was passed by the US Congress in 1972 with the aim of eliminating sexual discrimination in American education. Very quickly, it became the chief tool schools used to investigate and adjudicate campus incidents of sexual “discrimination.” That use was problematic, especially since the courts gradually widened the definition of “discrimination” to include “harassment” and “violence” as well. High schools and universities found themselves making difficult decisions about such weighty criminal matters as assault and rape.

In response to this situation, the government argued that schools shouldn't be held to the same judicial standards as American courts. They could use abbreviated processes and ignore procedural niceties such as the “rules of evidence.” Unfortunately, these concessions put Title IX justice in jeopardy. In one 2019 court case, for instance, judges found that Title IX investigators at the University of Mississippi had been instructed by training materials to assume the respondent was guilty and even to treat complainant lies as proof that an assault occurred.

The Trump administration took a different attitude towards Title IX, believing that because it is a federal law, respondents deserve due process protections. In May of 2020, the administration, under the leadership of education secretary Betsy DeVos, issued new Title IX guidelines, known as the Final Rule, which brought reform to a number of aspects of the law. In particular, the Final Rule guaranteed a number of important due process rights to respondents. These changes didn't solve all of the problems with the law, but they were a big step forward in achieving fairness.

Unfortunately, the Final Rule was not the end of the story. Candidate Joe Biden promised to repeal Trump's guidelines, and President Biden has already formed a task force to figure out how to do just that. More immediately, in the wake of the Final Rule, many schools instituted alternative policies designed to deal with sexual misconduct cases that Title IX no longer covered. In many cases, these policies don't guarantee any due process rights to students. Thus, the situation for those accused of misconduct is in some ways better now but in some ways worse. It's certainly not settled.

Title IX Due Process Protections

Current Title IX rules are not perfect. For instance, decision-makers in these cases are not required to use the “beyond a reasonable doubt” standard in evaluating evidence. Instead, most use the “preponderance of evidence” standard. According to “preponderance of evidence,” decision-makers can find respondents responsible if they believe it is “more likely than not” that the respondents committed a violation.

Still, the Final Rule did institute some important due process protections for the accused.

  • Right to notice: As soon as a Title IX Coordinator signs an official complaint against a student, they must notify that student that they've been formally accused. This notification must include the name of the complainant as well as details about the alleged incident. In addition, the school must continue to update the respondent as the case develops.
  • Right to presumption of innocence: While Title IX still instructs schools to believe complainants, schools must also now extend a presumption of innocence or “non-responsibility” to respondents.
  • Right to an advisor: Both sides in a Title IX case are entitled to choose an advisor to help them with the case. Importantly, this advisor can be an attorney, though the school is not obligated to provide students with attorneys.
  • Right to equal treatment: Under current Title IX rules, schools must treat both the complainant and the respondent equally in all respects. This means both must be offered the same support services; both must be subject to the same investigative procedures; both must be afforded the same rights.
  • Right to objective decision-makers: Both sides are entitled to be judged by persons who are free of bias. In addition, Title IX separates out the roles Title IX officials play. The school must appoint a Title IX Coordinator, an Investigator, one or more Decision Makers, and an Appeals Official. Each role must be undertaken by a different person, helping to eliminate any conflicts of interest as the case develops.

One important difference between college and high school cases is that high schools are not required to provide respondents with a live hearing. It is the school's choice whether or not to hold such a hearing. Investigators and Decision Makers are still required to meet with both parties. At these meetings, respondents may present evidence and suggest witnesses. They may also submit questions for witnesses and for the complainant. However, respondents don't necessarily have the right to confront their accusers as they would in a court of law.


One of the strongest arguments in favor of allowing schools to use relaxed judicial processes is that students aren't subject to the same kinds of harsh penalties as they would be in an actual court of law. That is, your student's high school can't send them to jail. Basically, the thinking is that if the punishments aren't as severe, the procedures don't need to be either.

The problem with this argument is that sanctions in Title IX cases can be severe, in many cases as severe as a jail sentence.

Title IX doesn't dictate how schools may punish students who are found responsible for sexual misconduct allegations. These decisions are left up to the schools. Most schools maintain a list of common sanctions for policy violations. These often include things like verbal or written warnings, detention, or the loss of privileges. Some schools require students who have violated policy complete disciplinary assignments like essays. Others may ask them to attend counseling. They may say any of these sanctions is a possibility in a Title IX case.

The minimum punishment for a sexual misconduct violation, though, is almost always suspension. The far more common penalty is expulsion. While minors are entitled to an education under state and federal laws, a school can insist that they obtain that education elsewhere. Some schools offer electronic educational opportunities to expelled students. Others may simply demand students find another school or make arrangements to be homeschooled.

In any case, a finding of “responsible” in a Title case will be a permanent black mark on a student's record. It will mar college applications, make it hard to obtain financial aid, potentially prevent military service, even interfere with getting a first job. In other words, everything is on the line when it comes to a Title IX case, especially at the high school level. No one who is found responsible simply walks away unscathed.

Joseph D. Lento Is a Title IX Attorney

With everything at stake, and the system seemingly stacked against you, you may be feeling more than a little overwhelmed at this point. You don't have to do this alone, though.

A Title IX defense is complicated. The rules can be difficult to navigate. Developing a winning defense strategy involves not just a deep knowledge of the law but an understanding of how the subtleties of your particular case can be organized to produce the best result. You can't handle all of that on your own. You don't have to.

Schools aren't set up to deal with the complex judicial processes required by Title IX. That means they make mistakes, sometimes a lot of mistakes. Maybe they don't do enough to give your child the benefit of the doubt or appoint an investigator who can't truly be objective or give a piece of evidence more weight than they should. Who's going to keep them honest? Who's going to make sure they abide by the law.

Joseph D. Lento is a highly experienced, qualified Title IX attorney. In fact, he built his practice helping families just like yours get through sexual misconduct cases. He's defended hundreds of students from all types of charges, from stalking to date rape. He knows the law, and he knows how high schools operate. He'll stand beside you every step of the way, keeping them honest and getting you justice.

Attorney Joseph D. Lento is empathetic to your situation. He's been doing this for many years, and one thing he's learned is that the Title IX system can be unfair. He's made it his life's mission to protect students from over-zealous school districts and draconian punishments. Whether you're trying to prove your child's innocence in the face of unfounded accusations or trying to negotiate a fair settlement that will let your child continue their education, Joseph D. Lento stands ready to fight for you.

If your child has been accused of Title IX sexual misconduct, don't wait. Contact attorney Joseph D. Lento and the Lento Law Firm today at 888-555-3686 or use our automated online form.

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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 the Lento Law Firm today, and let us help secure your academic career.

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