All U.S. educational institutions are responsible for maintaining compliance with federal Title IX guidelines, which prohibits all forms of sexually-based discrimination. Failing to comply may result in the school being made ineligible for federal education funds. Establishing a process for investigating complaints is a key element for proper conformity. Each school's designated Title IX Coordinator will develop how complaints are examined such as allegations of sexual harassment, sexual assault, or stalking.
If a complaint of sexual misconduct is received, the school must seek to eradicate the issue, prevent future acts, and resolve the harmful effects. Colleges and universities have an incentive to address these matters seriously and promptly, as these incidents reflect poorly on the institution and this adverse information is circulated rapidly and more widely in today's connected digital environment. The Title IX Coordinator must ensure that all the institution's guidelines and procedures are reasonably accessible to all.
In higher education, the majority of institutions have several options for filing complaints, including a means of confidential reporting. The Title IX investigation is independent of any legal probes into the same matter, such as investigative actions by local law enforcement into possible criminal charges for an act of sexual assault. The purpose of the school's investigation is to determine if a Title IX misconduct violation occurred—not to whether the allegations equate to a violation of the law.
Timeliness for Incident Reporting and Institutional Response
The vast majority of colleges and universities across the United States do not have what would be considered a "statute of limitations" on when a Title IX allegation or complaint would need to be made for it to be considered timely. One arguable reason is that schools are concerned about potential pushback from the complainant, students aligned with complainants' interests on campus, and also interest groups who advocate for Title IX campus sexual misconduct policies that favor complainants at the expense of respondent rights and interests.
Although not the case at almost all schools, there are a small number of schools that have a specified reporting deadline. At such schools, for example, the complaint would need to be made within 90 days, 6 months, and so forth, for the school to take action and investigate the claim. That being said, even at schools that have a prescribed reporting deadline, the school's policy often has a disclaimer for complaints made after the deadline for which good cause exists for the delay.
As to what would be considered good cause is subject to interpretation. Due to such language having the strong potential to be liberally interpreted, reporting deadlines can often be meaningless especially if a potential accused student does not have an advisor protecting the accused's rights and interests as vigorously as possible.
Reporting deadlines at schools should not be confused, however, with complaint deadlines of the Department of Education Office of Civil Rights (DOE-OCR), the governmental body which in part oversees Title IX compliance at schools and institutions which receive federal educational funding across the United States.
Unlike colleges and universities which almost universally will seek to investigate a Title IX allegation regardless of how much time has passed since the alleged incident, DOE-OCR complaints involving allegations related to sexual discrimination must be filed no later than 180 days after any alleged incident. Complainants who report after this deadline would generally be required to prove good cause to have this limitation waived. The Department of Education's guidelines state that complaints must be handled “promptly” after received; however, a precise time-frame is not defined.
Title IX cases can, of course, be won when handled properly, but in those instances that further action is required, filing a Title IX complaint with the DOE-OCR is not always a step best taken after a respondent is found responsible and sanctioned. Although the DOE-OCR Title IX complaint resolution can take months in many instances and potentially longer than a year in others, to best protect an accused student's interests at the school, there will be some instances where it is not to file a complaint with the DOE-OCR during the pendency of the campus Title IX cases. An accused student should also not fear "retaliation" on the school's part in taking a step as the DOE-OCR forbids retaliation against a claimant after a complaint is made.
Because of the potential interplay between the school's Title IX process the DOE-OCR, it is best to have an experienced attorney help an accused party navigate the process and determine the most appropriate course of action.
Notification of All Parties
The initial action that is taken by Title IX administrators is to notify all the parties involved. This notification will contain much of the following information:
- A written summary containing details regarding the allegations of misconduct that are the basis of the complaint
- The school's existing policy that may have been violated through the alleged action should be identified
- A list of basic rights that all parties in the process are entitled to
- The name and contact information of those who are primarily responsible for the investigation and any individual, department, or office that a party may reach regarding any grievances during the process
- The time and date(s) of any scheduled activity such as meetings (if applicable)
When an individual is notified that they are subject to violations related to Title IX, they are strongly encouraged to speak with an attorney that is familiar with this realm of legal practice. Taking prompt action to secure advisory representation is critical to allow for sufficient preparation time.
The Potential of Invoking Interim Measures
The administration will consider whether implementing interim measures is appropriate, often these changes are made to “protect the complainant and ensure his or her safety.” In many cases, the respondent and complainant may encounter one another in their daily activities. The administration may implement measures such as a “no-contact” order that prohibits communication between the parties. Other possible actions include making changes to current campus housing arrangements, modifying class schedules, and more.
Gathering of Evidence and Scheduling of Initial Interview or Intake Meeting
The Title IX investigator will begin to compile evidence that is relevant to the complaint. Recent federal guidance affirmed that the school has the burden to collect evidence that is necessary to reach a proper determination or whether the violation(s) occurred. Some examples of evidence include text messages, voice messages, emails, and other forms of documentation. Any relevant witnesses may also be interviewed.
The parties will soon be summoned to an intake meeting, which is where an interview is conducted regarding the incident. Ideally, you will be accompanied by your advisor to this session, who may assist you in preparing effective statements and responding to questions. The investigator will have individual meetings for the respondent and complainant. The respondent should bring any documentation and contact information of any witnesses that you would like to give testimony.
Fair and Equitable Investigations
Schools are afforded some flexibility in developing their process. Federal guidelines emphasize the importance of having a “fair and impartial” investigation that allows both parties to equal opportunity to be heard. Schools are required to ensure the proceedings are free of “actual or reasonably perceived conflicts of interest.”
Possible Informal Resolution
In some cases, the institution may find it acceptable to consider an informal resolution. The parties must voluntarily consent to participate in this option. Mediation is often used to help the parties to potentially reach an amicable solution.
Potential Hearing and Standard of Evidence
Schools may summon all parties and their advisers to a hearing in cases that proceed according to the standard or formal Title IX process. Hearings are not judicial court proceedings and not intended to emulate them. Some of the potential elements of these hearings include opening and closing statements, direct witness testimony and cross-examination, etc. Either way, an investigation report will be created and available for parties to review.
After considering all of the evidence, the decision-maker may reach a conclusion using a “preponderance of the evidence” standard. The guidelines also allow schools to use a “clear and convincing” evidence standard. Both of these are lesser burdens of proof than “beyond a reasonable doubt” that applies to criminal matters.
Findings and Possible Sanctions Imposed
The administration must present a written summary of the findings to all parties. If the violations were proven, sanctions and penalties may be imposed. Those responsible for making a finding of responsibility may or may not also be responsible for determining sanctions. The sanctions likely to be imposed are either being suspended or expelled from the institution.
Although not a requirement, the majority of schools allow parties to appeal a decision. Most institutions require prompt notification of intent to appeal. This process should be pursued with the assistance of a seasoned Title IX advisory attorney.
Retaining Experienced Advisory Representation in Title IX Actions
Allegations of sexual harassment, gender discrimination, domestic violence, and other misconduct that may constitute a violation of federal Title IX provisions are taken seriously by educational institutions. If the accusations are proven, students may be dismissed from the school and incur long-term consequences. Evidence on your transcripts showing a history of misconduct can present challenges in being admitted to another school or advanced degree programs.
Having an attorney serve in an advisory role provides potentially significant benefits for those accused. An attorney can help identify valuable evidence, ensure you are prepared to defend yourself and may engage administrators in discussions regarding possible resolutions that are mutually beneficial. Attorney Joseph D. Lento and the Lento Law Firm have helped countless clients in Title IX cases across the United States. Contact the office today for additional information at (888) 535-3686.