If you're one of the 75 million people worldwide who has been diagnosed with an autism spectrum disorder (ASD), you know the world isn't always set up with you in mind.
One of the most challenging places for anyone with ASD is the classroom. That's true whether you're in fourth grade or taking a senior college lecture. Loud noise can disrupt an ASD student's learning. So too can changes to the learning routine. Social interaction and communication happen differently for ASD students than for everyone else.
As a society, how do we generally react to people who are different from us? Too often, with fear and suspicion. If we don't understand someone else's behaviors, we're likely to label those behaviors as “wrong,” “aberrant,” perhaps even “illegal.” This may be one reason why ASD students are particularly vulnerable to allegations of Title IX sexual misconduct.
Title IX is a federal law that ensures schools cannot discriminate on the basis of sex. In the last several decades, Title IX has served as an important shield for women, not just from discriminatory treatment in the classroom but from the hostile language and even sexual assaults they might face at educational institutions.
Of course, no one has the right to commit crimes with impunity, especially not such serious crimes as assault. At the same time, no one should have to suffer a false accusation, or a false conviction, simply because their disability leaves them vulnerable to being misunderstood.
Just as schools are required to enforce Title IX, they must also enforce the Americans with Disabilities Act (ADA). If you are an ASD student who's been accused of a Title IX violation, you must know your rights. ASD isn't an excuse for breaking the law, but it should be considered in Title IX investigations and prosecutions.
What is Autism Spectrum Disorder?
According to the Centers for Disease Control (CDC), “Autism Spectrum Disorder is a developmental disorder that can cause significant social, communication and behavioral changes.” It is a broad-ranging disorder. One of the most problematic aspects of ASD is that others may not always recognize when someone has it. Even if a person doesn't exhibit stereotypical ASD behaviors, they may still struggle with some of the disorder's myriad challenges.
ASD typically causes problems with a person's social, emotional, or communication skills, but those problems can manifest in many different ways, including:
- Trouble relating to others
- Trouble making eye-contact
- A desire to be alone
- Repetition of words and phrases
- Difficulty adapting to changes in routine
- Unusual reactions to sensory experiences (taste, smell, sound, touch, sight)
These behaviors may strike outside observers as “abnormal,” leaving those with ASD particularly vulnerable to verbal and even physical attacks. In addition, because they sometimes have trouble communicating with others, a person with ASD can't always respond appropriately to such attacks and may not even understand what's happening to them. Even trained educators can sometimes misread their ASD students or fail to recognize a student has ASD.
ASD can present particular problems in a learning environment. Many ASD students, for example, require a quiet area in which to take exams. They may get upset if the classroom routine changes, need written or visual rather than auditory instructions, or have trouble fitting in because they miss important social cues. As a result, teachers who haven't been trained to understand ASD can sometimes decide an ASD student is simply “acting out” or being deliberately disruptive. It's no surprise, then, that ASD students in our school systems frequently wind up labeled as troublemakers or disciplinary problems. These labels can follow students out of the classroom and into their daily lives.
ASD Protections Under IDEA
If you are an ASD student, you should know that you have no obligation to report your disability to your school or any of your instructors. You are entitled to your privacy. However, letting your school know could help ease the struggles you may be facing in the classroom. You are entitled to important protections. These protections aren't “special treatment”; they're designed to help make education fair for everyone.
Two important federal laws help protect ASD students from discrimination. The Individuals with Disabilities Education Act (IDEA), the first of these, aimed specifically at protecting students. IDEA provides several important guarantees for disabled students, including those with ASD:
- Free and appropriate education: IDEA ensures all students can receive a public school education and, further, that students with disabilities have access to classes and materials best suited to help them learn.
- Least restrictive environment: Students with disabilities are entitled to classroom spaces and situations that fit their particular learning styles.
- Individualized education plans (IEPs): Each student with a disability must have their own IEP, which specifies their educational goals and outlines the paths to help them achieve these goals.
- Parent participation: Schools must allow parents to be actively engaged in their child's education and keep parents apprised of their child's progress.
- Appropriate evaluation: Students with ASD or other disabilities often learn differently from other students. This can mean they need to be evaluated using criteria explicitly created for them.
This last point is particularly significant when it comes to Title IX violations. “Evaluation” isn't just about quizzes, homework, and tests. It includes disciplinary evaluations as well. ASD students are entitled to disciplinary procedures and disciplinary sanctions that are “appropriate” to their disability.
ASD Protections Under ADA
IDEA typically applies only to k-12 students. Its focus is on making sure all primary and secondary school students have equal access to public education.
The Americans with Disabilities Act (ADA) has an impact beyond the classroom. It's a far more sweeping law that provides persons with disabilities equal access to a whole host of social benefits. These include:
- Employment opportunities: The ADA says employers cannot discriminate against a person on the basis of their disability. It further states that employers must make reasonable accommodations for disabled employees to perform their work effectively.
- Government services: Disabled persons have a right to access public services. This can include outfitting buses for wheelchair access. It can also involve providing verbal instructions for driver's license applications at the DMV.
- Public accommodations: This portion of the law states that even private enterprises must create accommodations for disabled persons if their business or service is “publicly available.” This applies, for example, to retail stores, restaurants, golf courses, and movie theaters.
- Telecommunications accommodations: Disabled persons are also entitled to equal access to public forms of telecommunications. This includes phone adaptations for anyone with hearing or speech disabilities. It also mandates closed captioning for certain kinds of television programming.
When it comes to criminal accusations, including accusations against students on college campuses, the ADA gives those with ASD and other disabilities several fundamental rights. Among these, it provides the accused equal access to any materials or services that can help them defend themselves against accusations. For instance, a deaf person has a right to a sign language interpreter. A person in a wheelchair must be able to enter the courtroom where they're being tried. And in some cases, the police may be required to modify their interrogation techniques if they're dealing with someone with ASD.
What is Title IX?
What does all this have to do with Title IX? If you have ASD and you've been accused of violating Title IX, you should know your rights under IDEA and ADA and how those rights can be used to help you defend yourself.
Title IX is a federal law passed in 1972 that guarantees equal rights to all students regardless of their sex. Initially, Title IX provided protection for women against simple discrimination by educational institutions. Colleges and universities, for example, were barred from using sex in determining school admission. Instructors were prohibited from applying different evaluation standards to women than they applied to men.
Over the years, however, Title IX has come to be applied to several other kinds of sex-based behaviors, including stalking, online harassment, even sexual assault, and rape.
Schools can't send you to jail for violating Title IX (though an accuser may also file criminal charges against you with the police). However, Title IX gives colleges and universities the right to investigate and prosecute their students and to expel those students they believe have committed various forms of sexual misconduct. Expulsion from school can, in many cases, be just as traumatic an outcome as a jail sentence. Many schools, for instance, include a transcript notation with expulsion explaining the precise reason a student was expelled. This can prevent you from enrolling at another school, effectively ending your academic career and making it difficult to find work.
Schools aren't just allowed to investigate their students. Title IX requires them to do so. Schools that don't comply risk losing their federal funding. As a result, colleges and universities are often over-zealous in their attempts to convict students and overly harsh in the kinds of penalties they assign to the guilty.
Title IX Procedures
The investigation and prosecution process for Title IX can be confusing for anyone, but it can be especially baffling for someone with ASD.
Every school must have a Title IX officer who coordinates all Title IX investigations. Sexual misconduct complaints are typically filed with this officer. The IX officer then determines whether or not to pursue an investigation. Given the pressure the government exerts on schools, virtually every accusation gets investigated.
The Title IX officer appoints an investigator(s) to review the case. The investigator may be a school employee or an outside party.This person interviews both parties as well as any witnesses and collects any physical evidence. Once they've completed their investigation, they write a report on their findings. Both sides have the opportunity to respond to this report.
Under current Title IX guidelines, both sides then have the right to a live hearing. While specific procedures will vary from district to district, most schools select a panel to hear the case, drawn from a pool of faculty, staff, students, or others, who have received some training in the school's justice procedures.
Students can appoint an advisor to help them with their case, and this advisor can be an attorney. Both sides have the right to question each other and examine and cross-examine any witnesses at the hearing.
After the hearing, the panel decides on the accused student's responsibility and, if necessary, sanctions the student. Convicted students can appeal their verdicts to the university president, but only under very specific circumstances, such as the demonstration of clear bias on the part of the investigator.
There are many problematic aspects to Title IX investigations, starting with the incentive schools have to pursue every accusation no matter how spurious. While a Title IX hearing may be set up to resemble a court case, students don't have to be proven guilty “beyond a reasonable doubt.” Instead, panels must simply decide the events are more likely than not to have occurred. A guilty verdict also doesn't require unanimous agreement among the decision-makers the way it would in a courtroom. Instead, a simple majority serves to convict the accused.
ASD Relevance to Title IX Cases
Many of these problems with Title IX can be exacerbated in cases involving students with ASD. When it comes to Title IX accusations, ASD can play an important role in two respects.
First and foremost, students with ASD shouldn't be discriminated against in any way. They have the right under ADA to be treated fairly and equally. It is incumbent upon Title IX investigators, for example, to recognize that someone who is especially sensitive to bright lights and loud noises should not be subjected to these as part of the questioning.
Unfortunately, few investigators and even fewer hearing panelists are trained to deal with ASD. The truth is, they aren't even required to have training in judicial procedures. While investigators sometimes take two- or three-day webinar courses in investigative methods, nothing in Title IX mandates they know anything about law enforcement. The same is true of panelists. It is not unusual for a physics professor or an English instructor, someone with essentially no understanding of the law, to preside over Title IX hearings.
Adding ASD to the mix only further complicates matters. Investigators may assume, for instance, that a student's behavior demonstrates they're guilty when, in fact, that behavior is simply a symptom of ASD. Persons with ASD don't like to make eye contact; that's frequently interpreted as a sign of guilt. They may seem uncomfortable because they're in an unusual situation or placed in a room with too many people. They may have trouble expressing themselves verbally and can be misunderstood.
But ASD can be relevant to a Title IX case in much more fundamental ways. ASD can be a contributing factor to the accusation itself, and many accusations of sexual misconduct happen due to simple miscommunication. Communication is difficult for all of us, and that is especially true when it comes to matters of sex. It isn't unusual for a young couple to develop a physical relationship before they've ever discussed it, which opens a world of possibilities for misunderstandings.
Persons with ASD, though, can struggle even more with communication. Many people who have ASD, for example, have trouble reading body language and interpreting tone of voice. Yet body language has been used as evidence a person didn't want to engage in sexual activity, even if the person said nothing. A person with ASD, a person who can't parse non-verbal cues, may be incapable of recognizing such signals, and under the law, shouldn't be held accountable for missing them.
Likewise, those with ASD can't always pick up on subtle cues. If the person they're dealing with isn't comfortable enough to give them a clear “no,” they may not necessarily get the message.
Even stalking may not always be what it appears. Persons with ASD sometimes have a deep fascination with human behavior and will watch or even follow other people closely in ways that make those people uncomfortable. Yet, such behavior isn't a sign of aggression but rather an outgrowth of the disorder itself. In short, it shouldn't serve as the basis of a sexual misconduct allegation, and it shouldn't be used as evidence to prove such an allegation.
ASD as a Title IX Defense
If ASD affects Title IX cases in two distinct ways—in terms of the accusation and the investigative process—a good Title IX defense for someone with ASD might focus on either of these areas.
As a starting point, ASD offers exonerating or mitigating evidence in Title IX cases. Often, the accuser may simply have misunderstood a respondent and assumed a respondent's words or behaviors meant something that they didn't. By the same token, a respondent may have misunderstood a complainant, taking something they said as an invitation when in fact, it wasn't. ASD certainly isn't an excuse for a crime, but it can provide a reasonable explanation for a person's behavior, an explanation that may not rise to the level of criminal intent.
Misunderstandings are just as likely to arise, though, during the investigation. That is, an investigator who doesn't understand ASD can assume perfectly innocent words and behaviors indicate guilt. An unwillingness to talk can be taken as a sign a respondent is refusing to cooperate. A panelist hearing a Title IX can decide a respondent is lying during their testimony simply because their voice modulation or mannerisms seem out of the ordinary.
Issues related to ASD can taint a Title IX case. Thus, they can be solid grounds for a defense or serve as the basis of a civil suit. A skilled Title IX attorney will remind investigators and school officials of an ASD diagnosis at every step of the Title IX process and demand rights for their clients. They know how to use ASD as a defense during the hearing itself.
In addition, though, one of a Title IX attorney's most important jobs is to keep a record of how a school violates their clients' rights. This record can then be used to file a civil suit and ultimately overturn the school's findings.
Attorney Joseph D. Lento Knows Title IX
Most schools bend over backward to accommodate their students with disabilities. Obviously, this is the right thing to do, but they are also keenly aware that the government says they must.
However, the government is adamant that schools must enforce Title IX, investigate every claim of sexual misconduct, and do everything they can to convict students who have been accused. If you've been accused, the school that has been so welcoming, that has worked so hard to accommodate your disability, may suddenly turn on you.
In general, when it comes to Title IX allegations, your school is not on your side, even if you have ASD. Often schools try to suspend accused students before an investigation has even begun. They will assume you are guilty. They will do everything they can to make sure you're convicted and expelled. No matter who you are, if you've been accused, you're at a disadvantage.
Make sure you aren't going through the process alone. Put an experienced Title IX attorney on your side. Attorney Joseph D. Lento has years of experience defending clients across the United States from sexual misconduct allegations, including many with ASD diagnoses. He understands what you're up against, and he'll stand by you from start to finish. More importantly, he knows the law. Attorney Joseph D. Lento built his career on Title IX cases. He knows the law inside and out, he knows how it can be abused, and he knows how to protect your rights.
If you or your child has been accused of a Title IX violation, especially if you have ASD, don't wait. Contact the Lento Law Firm today at 888-555-3686, or use our automated online form.