What is Title IX?
Title IX is a federal civil rights law that forbids gender-based discrimination committed by or against students, staff, or faculty in federally funded institutions. The vast majority of colleges and universities receive some form of financial assistance from the government, therefore these institutions are in compliance with Title IX.
What does sexual misconduct have to do with Title IX?
Sexual misconduct in all of its forms - sexual harassment, sexual assault, etc. - is considered gender-based discrimination in accordance with Title IX.
What constitutes “sexual assault” and “sexual harassment?”
Sexual assault and sexual harassment are types of gender discrimination prohibited by Title IX.
Sexual assault, also known as sexual violence, is defined as any coerced or forced sexual contact or behavior that occurs without consent or in situations when a person is not able to give consent (drug or alcohol incapacitation or an intellectual or physical disability).
Sexual harassment refers to conduct or behavior of a sexual nature that is unwelcomed by a victim. This type of misconduct includes unwanted requests for sexual favors, sexual advances and any other verbal, nonverbal or physical acts.
What is affirmative consent?
When mitigating Title IX cases, most schools have an interim policy that requires affirmative consent, or “a conscious decision by each participant to engage in mutually agreed upon sexual activity.” School policies dictate that affirmative consent must be conveyed through comprehensible words and/or actions by all parties involved in sexual activities for them to be deemed consensual. This notion reigns true for every individual intimate act that ensues between parties.
How do intoxication and drug use affect consent?
Intoxication and the consumption of drugs to the point of incapacitation can make consent ineffective. Incapacitation is defined as the physical and/or mental inability to make rational judgments. Unlike drunk and drugged driving, sexual misconduct cases do not have a certain blood alcohol concentration or drug consumption rate to assess impairment. This means that the degree of intoxication or drug use that causes someone to be in an incapacitated state is based on the perception of the school. With the help of an attorney, a respondent can provide evidence that may suggest that an accuser did not exhibit signs of being incapacitated.
Who is protected under Title IX?
Title IX protects all students and employees of higher education institutions in the United States that are recipients of federal funds. These protections are offered regardless of citizenship status, national origin or international status.
What are the responsibilities of schools in compliance with Title IX?
In the wake of sexual misconduct allegations involving students, schools are required to mitigate these cases. Once an accuser has filed a grievance to notify the school of perceived sexual misconduct, it must first determine whether the alleged conduct has created a “hostile environment” for this student. When a student feels as if they are incapable of participating or benefiting from the school's educational services due to misconduct, a hostile environment has been created. If this is the case, a school is obligated to take effective and prompt steps towards remedying the misconduct.
In addition to eliminating the misconduct, schools are also responsible for taking interim measures in the midst of processes. These measures entail that the accused and accusers are entitled to rights that provide them access to a campus counselor or psychiatrist, coursework extensions, campus escort services, work and class schedule modifications, increased security on certain areas of campus, a leave of absence and contact restrictions.
How must schools react to sexual misconduct?
Schools may receive notice of sexual misconduct a variety of ways. An individual - whether that be a student, parent or friend - can file a grievance detailing the perceived misconduct, or an employee may notify a Title IX coordinator of alleged misconduct. But how a school reacts to these allegations, however, is a huge concern for the Department of Education. It is such a serious matter that the DOE has imposed guidelines under Title IX for schools to follow specifically when taking action against sexual misconduct.
Schools are required to conduct a thorough and impartial investigation to determine what occurred. If it is discovered that the alleged sexual misconduct did, in fact, occur, institutions must take prompt and effective steps to end the misconduct, diminish the possibility of its recurrence, eliminate the hostile environment and rectify its effects.
How are grievance and disciplinary processes supposed to be carried out by schools?
Allegations of sexual misconduct will be followed by an investigation. Once an investigation has begun, a respondent or the person who has been accused of the misconduct will be notified of the allegations that have been brought against him or her. This notification should be sufficiently detailed and include the identities of the parties involved, the specific portion of the code of the conduct that was allegedly violated, and the date and location the perceived sexual misconduct occurred. Respondents will also receive notice of a hearing date and time, which should give them a reasonable amount of time to prepare for the school's “prompt and equitable” grievance and disciplinary processes.
What constitutes “prompt and equitable” grievance and disciplinary processes?
Under Title IX, grievance and disciplinary procedures must be “prompt and equitable.” The Office for Civil Rights (OCR) has provided the following elements that are used to gauge whether a school's processes correlate with the federal law's guidelines:
- The school details its own prospective grievance procedures to students, parents, and employees. This information should be accessible to every individual and should provide a clear and explicit explanation as to how to file a complaint, where the Title IX coordinator is located etc.
- The school carries out grievance procedures in response to complaints filed by students accusing fellow students, college employees or third parties of sexual misconduct.
- The school conducts an impartial, proper, and reliable investigation of complaints, giving both parties the opportunity to present witnesses and gather evidence.
- The school upholds a reasonable time frame for stages of the complaint process
- The school must notify all parties of the outcome of grievance processes and eliminate the sexual misconduct and the possibility of it recurring. The institution should also assure that sexual misconduct will not be tolerated on campus.
What standard of evidence do schools use during grievance and disciplinary processes?
As of now, schools are able to select which standard of evidence they wish to apply to sexual misconduct cases to determine guilt. The only rule is that this same standard is applicable in other student code of conduct violation cases also. Higher education institutions must choose one of two evidentiary standard options: (1) the preponderance of evidence standard and (2) the clear and convincing evidence standard.
The preponderance of evidence standard requires that the facts and the accuser's account of the alleged sexual misconduct are more likely than not to be true. However, the clear and convincing evidence standard is more rigorous. There must be additional evidence from an accuser that makes a case stronger than “more likely than not,” but less evidence to prove that the misconduct occurred “beyond a reasonable doubt” - which is the standard in criminal cases.
What if the perceived sexual misconduct occurred off campus?
In the event that an alleged instance of sexual misconduct occurred off of campus property, a school may still be required to mitigate a case. It is up to the higher education institution to assess the complaint and determine if the conduct transpired in the context of a school activity, event or educational program. If a school's findings affirm that this is the case, the school must approach this complaint in the same fashion that it would handle on-campus complaints.
What are the obligations of college employees under Title IX?
Employees of a college or university are required to comply with Title IX's mandatory reporting regulations. These rules require “responsible employees” - professors, faculty, staff, graduate assistants, teaching assistants etc. - the task of reporting instances of suspected sexual misconduct in all circumstances. It doesn't matter if a student confides in a college employee or the employee becomes aware of the alleged misconduct through hearsay, all information must be reported to the school's Title IX coordinator. The failure to do so could ultimately lead to Title IX charges.
Philadelphia Title IX Attorney Serving Pennsylvania, New Jersey, and Nationwide
As you can see, Title IX processes can be incredibly complex. If you are a student or an employee of a school and are facing allegations of sexual misconduct, you should consult with an attorney that is well-versed in your school's Title IX policy, and the state and federal regulations that govern your school. Even if you feel you have a coherent understanding of your college or university's processes, you still need the assistance of an attorney to maximize the likelihood of a favorable result. Skilled legal professional Joseph D. Lento has extensive experience successfully representing clients who have been in your shoes in Pennsylvania, New Jersey, and nationwide. Contact him today for assistance.