Title IX Allegations and ROTC

An accusation of sexual harassment or assault while in college can be frightening and devastating for any student. But for students in an ROTC program or hold ROTC scholarships, a Title IX accusation can also mean getting kicked out of ROTC, known as “disenrollment.” The Department of Defense can also require that students pay back all or a portion of scholarship funds. Disenrollment in ROTC can also mean losing a future career as a military officer and mandatory active-duty service. In short, a Title IX allegation could ruin an ROTC student's future. If you or someone you love faces a Title IX allegation, you need an experienced student defense lawyer with experience with ROTC honor board hearings to guide you through the process.

Military Service Obligations and Contracts

Reserve Officers' Training Corps (ROTC) is a prime recruiting and training avenue for future military officers. The Army, Navy, and Air Force each have ROTC programs at colleges across the country. While the Marine Corps and Space Force do not have their own ROTC programs, interested students may become Marines through Navy ROTC and Guardians through the Air Force ROTC programs.

Some students enter ROTC through full or partial scholarships, which provide a reduced-cost college education in exchange for military service. Others join ROTC in college to learn more about military history and gain the leadership and time management skills necessary to become a successful officer in the U.S. military. ROTC scholarship holders must serve for four years in the military after college. However, if a scholarship holder leaves college or disenrolls for some reason, they may still have a mandatory military obligation. Non-scholarship holders can also join ROTC with no obligation for the first two years. However, in their junior year, cadets may choose to accept a contract to become an officer after college. At that point, cadets who leave the program may have a mandatory military service obligation.

When ROTC scholarship students accept their scholarships, and when non-scholarship students contract to become officers after college, they enter a complex contract with the Department of Defense. The contract requires that cadets maintain physical fitness standards, academic standards, weight requirements, complete military training, and maintain military standards of ethical, moral, and legal conduct. If a cadet fails to maintain these standards, their command may refer them for disenrollment.

What is Title IX?

Title IX is federal legislation that mandates how colleges and universities must handle allegations of sexual misconduct, violence, or discrimination on campus. Title IX gets its name from Title IX of the Education Amendments of 1972 (“Title IX”). 20 U.S.C. §1681 et seq. Title IX applies to all schools that receive federal funding, including kindergarten through grade 12 schools and publicly-funded colleges and universities. The law states:

“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.”

The legislation protects against discrimination in college admissions, athletics, employment, and financial aid decisions. However, Title IX also applies to sexual harassment and assault, which are considered discrimination “on the basis of sex” under the law. If a college or university knows about sexual harassment, violence, or assault on campus or at a university-sanctioned event, it has legal obligations under Title IX. The school must investigate the incident, even if no student reported it. The college must also:

  • End the behavior and prevent it from happening in the future
  • Protect the alleged victim
  • Provide grievance or disciplinary procedures
  • Address the effects of sexual violence on campus

Possible Penalties for Title IX Violations

While all students can face penalties from their college or university if “convicted” or found responsible for a Title IX violation, ROTC students can face an additional level of scrutiny from their ROTC command. Moreover, they can face the loss of a military career before it even begins.

Title IX Penalties at School

Title IX regulations don't mandate specific penalties for Title IX violations. As a result, penalties vary widely from school to school and depend upon the severity and circumstances of the violation. Penalties may include:

  • Probation
  • A written warning
  • A formal written apology
  • Suspension from classes or the dorm
  • Changing living arrangements
  • Changing schedules
  • Preventing the defendant from contacting the complainant
  • Losing a job or suspension from a job
  • Loss of school scholarships
  • Loss of tenure
  • Restitution to the complainant
  • Counseling for the defendant
  • Revoking or withholding a degree
  • Expulsion from the college or university

In determining punishments, colleges will consider:

  • How they can best enforce their code of conduct
  • What the impact of removing a student from their educational path could be
  • Whether the punishment is a fair and proportionate response to the violation

All these factors are subjective, meaning it's essential that any defendant to Title IX allegations have legal guidance and representation during school disciplinary proceedings.

ROTC Title IX Penalties

While ROTC is a track to military service, ROTC students are still college students and aren't technically in military service yet. Therefore, Title IX regulations still apply. If a university disciplinary panel finds an ROTC student guilty of a Title IX violation, the student could face disenrollment from the ROTC program.

Disenrollment involves a different procedure for each branch of service but ultimately results in removal from service, the ROTC program, or the possibility of future military service as an officer. The Department of Defense may also require scholarship winners disenrolled from ROTC to repay all their scholarship funds and serve time in the military.

  • Education Repayment: Funds awarded to ROTC students can range from partial to full scholarships for more than $100,000 in value. Most students that leave the ROTC program voluntarily or those disenrolled by their command must repay these funds.
  • Military Service: The DoD will require most non-scholarship students disenrolled from ROTC to serve in the military on active duty for at least two years.

Title IX Disciplinary Process

Under Title IX and its regulations, students are entitled to a minimum level of due process during the disciplinary process. The right to due process comes from the Fifth Amendment to the U.S. Constitution, providing that no one shall “be deprived of life, liberty, or property without due process of law,” and the Fourteenth Amendment applies the Fifth Amendment to all 50 states. Over time, the courts expanded the idea of due process beyond criminal proceedings to encompass many situations where a person could lose an individual right or privilege.

When you are a college student, your education is considered something of value, and the value of the loss of that education can be high. As a result, the government can't simply arbitrarily take education from a student without affording them adequate due process. In effect, state universities and colleges are agents of the state in student disciplinary matters, and they can't remove a student or revoke or withhold a degree without due process. As a result, much of the government regulations concerning Title IX set forth the minimum due process a college or university must provide to students in the disciplinary process.

Some of students due process entitlements include:

  • Written notice of Title IX allegations with enough detail, including the names of other parties, the alleged conduct, the specific sections of the student conduct code allegedly violated, and the date and time of the alleged incident
  • Receiving notice with time to prepare before a hearing
  • A fair, unbiased, and trained tribunal
  • The ability to introduce evidence in witnesses in their defense
  • The ability to cross-examine witnesses, including the complainant or the defendant
  • The ability to have an attorney or advisor represent them
  • The school's application of the correct standard of proof
  • Disclosure of all the evidence against the defendant
  • The right to examine all the evidence
  • The right to talk about the allegations and to contact witnesses
  • Having any procedure provided to either party available to both, including cross-examination, submitting questions for witnesses, and the right to have an attorney or advisor
  • The right to cross-examine witnesses, including the complainant or defendant
  • The right to receive a written report ten days before any hearing
  • Receiving written findings of fact and conclusions of law and a reason for the results, sanctions, and remedies

Under new Title IX regulations, schools can use the “preponderance of the evidence” or the more rigorous “clear and convincing evidence” standard for Title IX cases, provided they use the same standard for everyone, including faculty and students. See 34 C.F.R. §106.45(b)(1)(vii); §106.45(b)(7)(i).

ROTC Disciplinary Investigations

If an ROTC student faces a Title IX violation, they will face disenrollment from ROTC. But cadets are entitled to due process, much as they are during college Title IX disciplinary proceedings, including a disenrollment hearing board. During the hearing, the board will determine:

  • Whether there is a reason to disenroll the student from ROTC
  • Whether the command should disenroll the student
  • Whether the student should repay their scholarship funds
  • Whether the DoD should require that the student serve a term of service on active duty

However, Title IX regulations don't outline a cadet's due process rights during the disenrollment process. As a result, many ROTC commands aren't as familiar with a student's rights. That means it's essential to have a student disciplinary lawyer protect their rights during a disenrollment hearing and the entire ROTC disciplinary process.

Right to a Disenrollment Board Hearing

Any student referred for disenrollment in ROTC is entitled to a disenrollment hearing board after receiving written notice. The cadet can waive or exercise this right. If a student chooses to waive their right to attend the board hearing, they can still submit written requests or other evidence related to the matter at hand.

Due Process During the Hearing

If a student elects to have a hearing, they're entitled to have a neutral and impartial military officer hear the evidence. The student has the right to present evidence, including documents, witnesses, and other evidence. The student can also cross-examine any witnesses the ROTC command presents and challenge the evidence.

During all stages of disenrollment, the ROTC student is entitled to have a lawyer representing them, including during the disenrollment board hearing. However, the lawyer can't speak on the student's behalf unless the hearing officer allows them to do so. Still, the lawyer can provide advice and guidance to the student during the process and the hearing, including during cross-examination of witnesses. The student can confer with their attorney privately, outside of the hearing, and collaborate on strategy and the approach to the case. An experienced student defense attorney can also ensure that the command and the hearing officer follow all necessary regulations and protect the student's due process rights.

Findings and Recommendations

The hearing officer will hear the evidence from both the student and the command and make factual findings. Along with factual findings, they will also make recommendations regarding the questions about disenrollment, repayment of scholarship funds, and active duty service.

Cadet Command Final Decision

After the hearing officer makes factual findings and recommendations, the student can respond in writing and present written materials. The student's attorney can assist with this response as well and submit a written submission in response. The hearing officer will forward all these materials to the student's ROTC command for final approval or disapproval.

Hire a Student Defense Attorney Experienced in ROTC Disciplinary Matters

If you or someone you love faces the accusation of a Title IX violation, it is an incredibly serious matter. For ROTC students, a finding of wrongdoing can prevent a student from finishing school, require repayment of significant scholarship funds, and force a student to forego an education while serving on active duty. This process isn't something any cadet should face alone. You need an experienced Title IX litigator with experience in ROTC disciplinary matters and disenrollment hearings.

Attorney Joseph D. Lento is an experienced student disciplinary defense attorney and has helped protect the rights of countless ROTC students across the country. He has handled hundreds of Title IX investigations, Title IX hearings, and ROTC disenrollment matters countless schools. Attorney Lento can help you too. Call the Lento Law Firm at 888-535-3686 or contact them online to schedule your consultation.

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