Title IX for Out-of-School Events

Many high school students and their parents appreciate to at least some degree that Title IX of the Education Amendments of 1972 prohibits certain forms of sexual misconduct such as sexual assault, stalking, and sexual harassment at high schools and other educational institutions. Your student can get in trouble for federal Title IX violations in high school. High school students generally know to obey conduct rules when on school grounds.

The question in many cases, though, is whether Title IX restrictions apply to high school events and activities off school grounds. While high school students generally behave reasonably well on school grounds, they may save their exploratory and risk-taking behavior for school events and activities that occur at museums, parks, conference centers, recreational facilities, and other locations conducive to school field trips, activities, and events. Those off-campus events and activities invite looser student behavior or at least often offer more opportunity for hijinks and less teacher supervision.

The short answer is that Title IX can apply to off-campus activities and events that your student's high school organizes and sponsors or otherwise controls. If your high school student faces Title IX charges based on outside-of-school activities, you and your student should take those charges just as seriously as charges for an on-school-grounds event. Title IX requirements may or may not reach that conduct, depending on the specific facts and circumstances. Get expert Title IX defense attorney help to defend off-campus charges. Retain national Title IX defense attorney Joseph D. Lento and the expert team at the Lento Law Firm. Call 888.535.3686 or contact online now.

Title IX's Geographic Reach

At its core, Title IX doesn't limit its reach to school grounds. The statute and its implementing regulations instead address school programs and activities. For example, the core implementing regulation 34 CFR Section 106.31(a) states Title IX's basic prohibition against sex discrimination as providing that “no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient which receives Federal financial assistance.” Note the reference to education program or activity rather than buildings and grounds. Title IX concerns itself with control over the event rather than the geographic location of the event.

Another implementing regulation 34 CFR Section 106.44(a) further clarifies that Title IX's reach has to do with control rather than location. The regulation states that schools receiving Title IX complaints “must respond promptly in a manner that is not deliberately indifferent.” The regulation then adds that for the purposes of that duty to respond, a covered education program or activity “includes locations, events, or circumstances over which the [school] exercised substantial control over both the respondent and the context in which the sexual harassment occurs….” Once again, control is the key factor, although this regulation clarifies that control must be over the alleged perpetrator of the Title IX violation and the context in which the Title IX violation occurred.

Title IX's focus on control rather than location makes sense. Schools, at least in their traditional form, generally have identifiable buildings and grounds. Yet schools, especially colleges and universities but also high schools, operate educational programs in many off-campus locations. Students may participate in clinics, internships, athletic training, competitions, conferences, and other school activities at locations all around the campus or even around the city, state, or nation, not to mention internationally. Student safety should be a school concern no matter the location of the school activity. Indeed, a good argument could be made that students need more protection, not less protection, when at school events off school grounds, where safety and security risks may naturally be greater.

Interpretive Guidance

A recent regulatory question-and-answer guide provides helpful detail as to where Title IX applies. The Department of Education's Office of Civil Rights, which Title IX charges with enforcement, published the guide, confirming its authority. The guide holds that Title IX applies not only to activities in “buildings or other locations that are part of the school's operations” but also to “remote learning platforms.” The guide also recognizes Title IX's reach to “[o]ff-campus settings if the school exercised substantial control over the respondent and the context in which the alleged sexual harassment occurred,” giving the example of “a school field trip to a museum.” The regulatory question-and-answer guide also explains how a school should decide whether it controlled the activity such that Title IX applies:

The school must make a fact-specific determination. [I]t ‘may be helpful or useful for a [school] to consider factors applied by Federal courts to determine the scope of a [school's] education program or activity'—such as ‘whether the [school] funded, promoted, or sponsored the event or circumstance where the alleged harassment occurred'—but also that ‘no single factor is determinative' in concluding whether the school has substantial control over the respondent and the context in which the reported harassment occurred.

In making this fact-specific determination, … [a] school ‘must consider whether, for example, a sexual harassment incident between two students that occurs in an off-campus apartment' or house is a ‘situation over which the [school] exercised substantial control [and], if so, the [school] must respond [to notice] of sexual harassment or allegations of sexual harassment that occurred there.' If an incident of sexual harassment between two students in a private hotel room occurs in a context related to a school-sponsored activity, such as a school field trip or travel with a school athletics team, the school would need to consider whether it exercised substantial control over the context in which the sexual harassment occurred.

... [A] school may have substantial control over an incident that occurred in a student's home, such as where ‘a teacher employed by a school visits a student's home ostensibly to give the student a book but in reality to instigate sexual activity with the student.'

The Limits of Title IX's Reach

The above authority, even discussing school Title IX responsibility over students staying in a private hotel room together, suggests quite a broad Title IX reach. That said, Title IX must still have ordinary limits to its reach. Students have private lives. They also have responsible parents who may decide that their student can participate in non-school activities that carry different dangers, opportunities, and risks. Title IX is not a babysitter. Congress tied Title IX to school funding and thus to school control over programs and activities, not to students' private lives when away from school.

In short, Title IX has limits. The above regulations and guide show Title IX's expansive reach, but that authority also shows the limits of Title IX's reach. Lots of activity occurs between high school students entirely outside of school control and off school premises. If your student faces high school Title IX charges for alleged conduct occurring off school grounds, then your student may have a good defense that the school did not control the activity, whether your student has other defenses or not. Don't let your student's high school hold your student responsible for a Title IX violation that Title IX did not actually reach.

Procedural Rights to a Defense

The good news is that Title IX includes procedural protections that enable your student to raise exactly this kind of legal defense. Title IX regulations require that your student's high school give your student notice of the Title IX charges. That notice should include the day, time, and location of the alleged misconduct. The notice should enable you, your student, and your retained Title IX defense attorney to evaluate whether the alleged violation, whether it occurred or not, was within Title IX's school control reach. Your student cannot defend a charge about which your student doesn't know the details. Title IX's procedural protections guarantee due process, ensuring that your student will promptly learn those details to raise applicable defenses.

Title IX also requires your student's school to disclose the evidence against your student before and during the course of a formal hearing. Those procedures will once again enable you, your student, and your retained Title IX defense attorney to determine whether Title IX reaches the alleged event. With your retained Title IX defense attorney's help, your student can also put on a defense case showing that the conduct occurred outside of school control if that circumstance is, in fact, the case. Title IX also guarantees your student appeal rights in the unlikely event that the hearing official errs over whether Title IX applies. Title IX's procedural protections give your student plenty of opportunity to challenge any allegation beyond Title IX's reach.

The Critical Role of a Title IX Defense Attorney

The above procedural protections are clearly not self-enforcing. Your student may have a perfectly good defense to high school Title IX charges in that the alleged misconduct occurred off school grounds and outside of any school program or activity. But that defense won't prove itself. Your student instead needs to affirmatively raise, argue, and prevail in that defense. High school officials concerned about Title IX liability and publicity can prove obstinate over recognizing legitimate, even compelling, defenses. Simply invoking a beyond-the-reach defense in an answer to the school's Title IX charge may not do the trick. Nor may repeatedly mentioning the defense in correspondence and other communications with school disciplinary officials.

Your retained Title IX defense attorney can do much more than simply raise and repeat a beyond-the-reach defense. Your retained Title IX defense attorney can research, identify, and cite controlling authority like the above interpretive guidance. Your retained Title IX defense attorney can raise the defense at initial meetings with the school, during the course of the school's investigation, and at settlement conferences, mediations, and other informal opportunities for resolution. Your retained Title IX defense attorney can also give applicable examples of other controlling cases, rulings, and outcomes involving the same defense.

Your retained Title IX defense attorney can also present the defense at a formal hearing through direct examination and cross-examination of witnesses, research and document the defense in hearing briefs, and appeal any sanction on the grounds that ignoring the defense was a legal error. If necessary, your retained Title IX defense attorney can also raise the defense in civil litigation challenging erroneous Title IX results. Your student may well need to do much more with the defense than wave it as if it were a magic wand. Your student may need aggressive Title IX defense attorney advocacy and representation.

National Title IX Attorney Available for High School Defense

National Title IX defense attorney Joseph D. Lento and the expert team at the Lento Law Firm specialize in representing high school students accused of Title IX violations in any location in any state or territory of the United States. Attorney Lento and his team have successfully represented hundreds of high school and other students nationwide in Title IX defense. Often, those wins occur through prompt and effective negotiations leading to early informal resolution. Other times, those wins occur after formal hearings. Sometimes, those wins occur on appeal from an adverse decision. And other times, Attorney Lento and his team are able to win special relief through negotiations with a school or school district's attorneys after the student has exhausted all other administrative remedies.

You can and should trust attorney Joseph Lento with your high school Title IX defense. Attorney Lento has devoted his law practice to helping students overcome legal challenges, complete their education, and get on with their desired life. Attorney Lento knows the value of that ambition to the student, the student's family, and the student's community and schools. When you retain Attorney Lento, you also get the benefit of his expert team and network. Many other high school students nationwide, and their devoted parents, are glad that they retained Title IX defense attorney Joseph Lento. Don't delay your successful Title IX defense. Call 888.535.3686 or contact Attorney Lento online now.

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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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