If your child has been found “responsible” (guilty) for a Title IX sexual misconduct violation at their high school, you're probably anxious to find out what you can do to appeal that decision. In fact, even if you're only dealing with an allegation at this point, it can be useful to know what options you might have as the investigation continues.
Unfortunately, Title IX doesn't always treat “respondents” (defendants) as well as it might. Your child, for example, probably won't have the opportunity to defend themselves at a formal hearing. The officials who decide the case won't have to find your child “guilty beyond a reasonable doubt” in order to punish them. Instead, all they'll need to decide is that it is “more likely than not” that your child committed a violation.
As you might expect, given these conditions, high schools don't always get it right in these cases. It isn't unusual for a school to find a student responsible and then expel them, simply on the basis of a believable story from the complainant. When it's one person's word against another, you can't be sure who the school will decide to believe.
Should you lose your case, the appeals process can be an important next step. That means it's important to find out all you can about it.
Title IX defenses can be difficult, especially for high school students. “Difficult,” though, does not mean impossible. The real trick is to make sure you have someone on your side who understands all the subtleties of Title IX law. Your child's high school will make mistakes. They aren't experts in the law. Hire someone who is, someone who can help prevent the mistakes from happening, someone who can guarantee your child is treated fairly.
What is Title IX, Anyway?
First things first. Before we get to Title IX appeals, you should know the basics about Title IX itself. After all, you need to understand the whole process and how decisions are made before you start preparing to appeal one of those decisions.
In the simplest possible terms, Title IX is a federal law meant to protect students from sexual discrimination and harassment. It was originally passed in 1972 and since then has served as a bedrock protection for women's equality in the United States. The fact that we worry today about whether little girls are getting the same math and science education as little boys is largely the result of Title IX.
The law is not without its problems, though. For example, to make sure all schools obey the law, the federal government threatens to withhold funding from any that refuse. That is certainly a powerful incentive to get schools to cooperate. However, it also puts extraordinary pressure on schools to investigate every single allegation, no matter how unlikely that allegation might seem.
In addition, until recently there were no formal procedures in place for investigating and adjudicating sexual misconduct cases. High schools were almost entirely free to treat respondents in any way they liked. In the era of Me Too, that came to mean that every accuser had to be believed, and every respondent had to be treated as “guilty unless proven innocent.” In a system like that, it's hard to be sure true justice is being done.
Thankfully, the federal government instituted some important changes to Title IX in 2020, creating clear standards for how sexual misconduct cases should be handled. Among other things, schools today can only investigate students if an incident occurs on campus or in direct connection with a school-sponsored event. In addition, students are entitled to an advisor, and this advisor can be an attorney. The new rules also make clear that the investigator, decision-maker, and appeals official must be three separate individuals in order to eliminate any potential conflicts of interest.
These 2020 changes were an important step forward, but Title IX processes remain unbalanced in favor of complainants. That's one reason why it is important to know exactly what the procedures are, in order to improve your chances of successfully defending your child.
Title IX Investigations
What are the procedures in a Title IX case?
To begin with, under current Title IX guidelines, every school district must have a Title IX coordinator, an official who oversees all accusations of sexual misconduct. Some larger districts go further and assign a coordinator to each individual school.
Title IX requires that all school personnel, including teachers, administrators, and staff, report any sexual misconduct they're aware of. However, the courts have decided that no one can be held responsible for reporting an incident unless they have “direct knowledge” of it, and failing to act on that knowledge would constitute “deliberate indifference” on their part. In other words, school personnel aren't actively looking for sexual misconduct but are required to respond if they discover it.
In addition, the law states that only a complainant's guardian or the school's Title IX coordinator can issue a formal complaint.
Once a coordinator has signed a complaint, they must then appoint an investigator to look into the incident.
Before the investigation begins, the school must notify both the complainant's guardians and the respondent's guardians. Neither the complainant nor the respondent can be questioned without a guardian present. Finally, both parties have the right to retain a family advisor, and this advisor can be an attorney.
Importantly, the complainant and respondent must be treated equally. The school is required, for instance, to offer both students access to medical care and counseling. If the complainant is provided with time off or schoolwork accommodations, the respondent must be given the same considerations.
During the investigative phase of the case, the investigator is responsible for interviewing both parties and collecting any relevant evidence, including witness testimony.
Title IX is clear that investigators cannot promise to keep information confidential, and accusations do sometimes become public knowledge in a community. However, the law also encourages schools to do everything possible to maintain confidentiality.
Your district should have a set time limit for investigations: 45 days, for instance, or 60 days. At the conclusion of the investigation, the investigator submits a written report detailing their findings. Both parties have an opportunity to view this report and to suggest appropriate changes.
Once the investigative report has been finalized, the Title IX coordinator appoints a decision-maker to review the investigator's findings. This decision-maker can seek additional information on the case, including asking further questions of both parties.
Some schools convene a formal hearing in misconduct cases, where both sides may present evidence and ask questions of witnesses. Here again, advisors can be a crucial part of the process, serving as the voice of the family, submitting evidence, raising objections, and examining witnesses.
Ultimately, the decision-maker renders a decision in the case. Either the respondent is found “responsible,” or they are found “not responsible.”
It is important to note: A school is not a court of law, and the decision-maker is not required to find the respondent “guilty beyond a reasonable doubt” in order to determine they are responsible for the incident. Instead, decision-makers typically use what is known as the “preponderance of evidence” standard. According to this standard, they must only be just over fifty percent certain the respondent committed the violation. In other words, a student can be found responsible even if the school has some doubts about what actually happened.
When a student is found responsible, the decision-maker assigns a sanction for the violation. Title IX says nothing about what sanctions schools can impose. Typically, the range of possibilities includes everything from a warning to financial restitution, mandated counseling, and suspension. A common penalty for Title IX sexual misconduct, however, is expulsion.
What About Appeals?
Again, “responsible” verdicts are not uncommon. Schools are under enormous pressure, both from the federal government and their own communities, to set no-tolerance policies towards sexual offenders. As a result, very often high schools are too quick to judge, too unwilling to listen to the accused student's side of the story, and too harsh in the penalties they assign.
However, schools are required under Title IX to offer students an appeals procedure as a check on the entire investigative process. Further, the law makes quite clear that the person hearing an appeal must be different from the investigator and the decision-maker. An appeal should provide an unbiased perspective on the process.
It is important to note that both parties may appeal the decision. In other words, just because your child is found not responsible doesn't necessarily mean the case is over. The complainant can ask the appeals official to overturn that finding. As with all other aspects of Title IX, both sides are to be afforded the same rights during the process. For example, if either side files an appeal, the other must be notified and given a reasonable amount of time to respond.
Essentially, there are three acceptable bases for an appeal:
- New evidence: An appeals officer is required by law to consider any new evidence that might change the outcome of the case.
- Procedural errors: Likewise, an appeals officer must look into any allegation that any part of the Title IX process was tainted, either through mistake or deliberate misconduct.
- Questions about sanctions: Finally, either side may accept the decision-maker's final decision but disagree with the sanction they assigned.
In the end, both parties have yet one more means of appealing the outcome of a Title IX investigation: a civil lawsuit.
As the 2020 changes to Title IX suggest, debate about how the law should be interpreted and enforced continue to rage, both in the Department of Education and in the US courts. Over the last decade in particular, as more questions have been raised about the law, the courts have been increasingly willing to hear challenges to the outcomes of Title IX investigations.
While the outcomes of these civil lawsuits depend on the specific facts, judges have recognized that Title IX does not always protect respondents' due process rights. When that is the case, they have overturned school decisions and, in some suits, have ordered schools to pay plaintiffs financial restitution.
Attorney Joseph D. Lento Knows Title IX
If your child has been accused of a Title IX violation, they have rights. They have the right to be treated fairly, to receive the same treatment as the complainant. They have the right to defend themselves in a clearly defined process. They have the right to appeal whatever the decision-maker ultimately decides.
Perhaps most importantly, they have the right to an attorney. What can an attorney do? An attorney can:
- Represent you and your child when you meet with the investigator
- Help your family craft a winning defense strategy
- Help uncover evidence and witnesses
- Make sure your child's rights are protected
- Represent you if a hearing is convened to determine responsibility
- Help you respond in writing to the investigator's and decision maker's findings
- Negotiate settlements with the school district
- Represent your child in a civil suit if that becomes necessary
You don't want just any lawyer representing you in such a complicated matter, though. You want a Title IX attorney, someone who knows this federal law inside and out and who can make sure the school doesn't try to bulldoze over you and your child.
Attorney Joseph D. Lento built the Lento Law Firm on defending the accused in Title IX cases nationwide. He deals with high school administrators every single day, helping to get his student clients and their families the justice they deserve. He's defended literally hundreds of students just like your child from all kinds of sexual misconduct charges. He knows the law, and he knows how schools operate. Whether you're trying to prove your child's innocence or looking to make the best possible deal when it comes to punishment, attorney Joseph D. Lento stands ready to help.
If your child has been accused of a Title IX violation, don't wait to see what will happen next. The school is already building its case. It's time to build your defense. Contact the Lento Law Firm today at 888-555-3686 or use our automated online form.