Title IX Investigations at the High School Level

We hear a lot these days about Title IX cases at U.S. colleges. There have even been a handful of high-profile documentaries about such cases. In contrast, high school cases don't get nearly as much attention. That's not particularly surprising, given that most school districts in this country don't face a lot of heavy media scrutiny. In addition, secondary education administrators generally work harder to make sure their students' privacy is protected.

That doesn't mean, though, that Title IX cases don't come up at high schools. Title IX applies to any educational program that receives federal funds and that includes any public K-12 schools. Besides, hormones rage just as strongly at 16 as at 20, and misunderstandings are probably even more common.

If your child has been accused of sexual misconduct and their high school is considering a Title IX investigation, you may not know much about what your family is up against. Will the police be involved? Will your child get a chance to tell their side of the story? What happens if they're found responsible? It's important to have the answers to these questions if you want to successfully defend your child from such charges.

Even more important, though? Having someone by your side who is qualified and experienced in dealing with Title IX cases. Under Title IX, you are entitled to appoint an advisor to help your family make it through your case. You are also entitled to choose an attorney to serve in that role. Make sure you pick one who is well-versed in Title IX law.

Just What is Title IX?

Let's start with the basics. What is Title IX? Where did it come from, and how does it apply to your child?

Title IX is federal legislation. It was passed in 1972 as a way to protect students from sexual discrimination and harassment. The law has been wildly successful. We sometimes forget that there was a time in this country when boys and girls didn't have the same educational opportunities in our schools and colleges. Title IX changed all that.

Despite its positive effects, though, Title IX isn't a perfect law, and changes over the past fifty years have helped to exacerbate its problems. For one thing, the law was intended to force schools to behave better towards their students. That's a noble goal. Today, though, it's more often used to help schools discipline their students. It's not always clear whether or not that's a good thing.

The central text of Title IX reads,

“No person in the United States shall, on the basis of sex, be excluded from participation, in be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

These words seem to suggest that schools have an obligation to treat all their students equally, to make sure they all have the same educational opportunities. Most of us would wholeheartedly agree.

As the law developed, though, these same words came to mean something a bit different: that schools were responsible for “protecting” students from sexual discrimination, protecting them not just from faculty and administrators but from other students. At the same time, “discrimination” came to mean something more than simple discrimination. In common usage, that word usually means giving preferential treatment to some students over others. In Title IX usage, though, discrimination now also means “harassment.” And “harassment” includes a whole range of offenses up to and including violent crimes such as rape.

Today, then, Title IX isn't used all that much to prosecute schools. Instead, schools use it to investigate and adjudicate sexual misconduct accusations made by students against other students.

That may sound like a reasonable role for a school to play. We all want to make sure kids are protected. The problem is, schools aren't set up to administer justice. To help out and make the process easier, the federal government has generally allowed schools to bend the rules. Often, that means accused students don't get the due process protections they deserve under the US Constitution.

The government made some effort at reform in 2020, and the new rules have helped restore some balance to the system. However, high school students still aren't entitled to a formal hearing in sexual misconduct cases. In addition, the decision-makers (judges) don't have to decide they are “guilty beyond a reasonable doubt” to determine they are “responsible” (guilty) for a violation. Just deciding they are “more likely than not” to have committed a violation is enough.

In the end, investigations remain skewed in favor of complainants. That makes it especially important to know how these cases work in order to guard against unfair treatment.

What Happens First in a Title IX Case?

Current Title IX guidelines mandate what the investigation and adjudication processes should look like.

As a starting point, all schools must be under the supervision of a Title IX Coordinator. This appointed official is responsible for dealing with all sexual misconduct allegations and assigning personnel to investigate them. In some large districts, every school may have its own coordinator. However, many districts can only afford one coordinator to oversee everyone. This, too, can put undue pressure on the justice system.

Title IX mandates that all school personnel have an obligation to report any instances of sexual misconduct. However, the Supreme Court has ruled that a school is only responsible for an incident if it has “actual knowledge” of the event and acts with “deliberate indifference” in response. In short, teachers and staff should act when they are aware of a violation but are not required to be on alert to potential problems. No one should be trying to set your child up.

In addition, only a complainant or the Title IX coordinator can sign an official complaint. This means that while well-meaning teachers may want an investigation into an incident, they can't, on their own, initiate that investigation.

When an official complaint is filed, the Title IX coordinator must notify both the complainant and the respondent and let them know about their rights and responsibilities under the law. Current Title IX rules are clear that the school must treat both parties the same. Both, for example, must be offered medical care and counseling. The school may provide additional accommodations such as time off from school or help with classwork. However, these must be offered to both students.

Finally, and most importantly, both sides are allowed to appoint an advisor to help them through the case. That advisor can be an attorney.

Title IX Investigations

When a formal complaint has been filed, the Title IX Coordinator assigns an investigator to uncover the facts in the case. The school will have a set timeline for completing this investigation, often 45 or 60 days from the date of the complaint. For various reasons, however, these timeframes are more a rough guide than anything else in most instances.

Investigators gather any and all evidence connected to sexual misconduct allegations. This can include physical evidence like pictures, video, clothing, or phone records. It might also include witness testimony. In most cases, investigators want to hear from both the complainant and respondent. Minors must be accompanied by legal guardians at all interviews, and typically, families may invite their advisors to accompany them as well. Some schools may limit whether an advisor can address the investigator directly, but virtually all allow advisors to consult with their clients.

When the investigation is complete, the investigator writes a full report of their findings. Both sides then have an opportunity to respond to those findings and request changes to the report. Ultimately, this document is sent to the Title IX Coordinator.

After the Investigation

Following the investigative phase of a Title IX case, the Title IX Coordinator assigns a “decision-maker” to examine the report and consider what should happen. In simplest terms, this person serves as the “judge” in the case. They rely on the investigative report, but they may also request additional information. For example, both sides may be invited to submit additional evidence or testimony.

Under Title IX, decision-makers are directed to use the “preponderance of evidence” standard in deciding whether or not a student is responsible for a sexual misconduct violation. This standard is far less strict than the one used in actual courtrooms. Instead of “guilty beyond a reasonable doubt,” the decision-maker is only required to determine if a student is “more likely than not” to have committed a violation. Many attorneys refer to this as the “fifty percent plus a feather” standard since it means judges must only be a little over half convinced in order to find someone responsible.

Based on their findings, the decision-maker also recommends sanctions if they are appropriate. Sanctions can include anything from a verbal warning to restitution, mandated counseling, and suspension. However, the two most common penalties in sexual misconduct cases are suspension or expulsion.

Some schools convene a formal hearing in misconduct cases, where both sides may present evidence and ask questions of witnesses. Here again, advisors are a crucial part of the process. Not only can a qualified Title IX attorney help with crafting strategy but they can represent you during the hearing itself. In fact, even where schools don't offer hearings, respondents have a right to ask questions of complainants and witnesses. Advisors can be a valuable asset in developing these questions.

Appeals

Finally, both sides are entitled to appeal a decision-maker's findings.

Again, the law is clear: investigators, decision-makers, and appeals officers must be three different individuals. This ensures that students have three separate checks on the final verdict.

However, there is usually a time limit on filing appeals, and they can only be filed under very specific circumstances:

  • The discovery of new evidence that would have a significant impact on the outcome of the case
  • The demonstration of clear bias on the part of a Title IX official or an obvious mistake in how the process was conducted

In addition, students can fully accept the final decision as to responsibility but appeal the sanction if they don't believe it fits the crime.

Finally, it is worth knowing that there is yet one more way of appealing a Title IX decision. If your child is found responsible, it may be necessary to file a civil suit in federal court to overturn that finding. In the last decade, the courts have begun to recognize that Title IX procedures are not always fair to respondents. They are accepting more cases, and they are more often finding in favor of plaintiffs.

While every case is different and must be decided on its own merits, these suits can provide a way to reclaim your child's good name and reinstate them at their school.

Attorney Joseph D. Lento Knows Title IX

A Title IX case is serious business. The law is complicated, and it isn't always set up to protect the rights of the accused. The consequences can be severe. If your child is found responsible for a sexual misconduct violation that could affect their ability to get into college, their chances at receiving financial aid, even their opportunities to get into the military or start a career. An expulsion or a transcript notation can follow someone around for years, and in the internet age, accusations—even when proven false—can apparently last forever.

Given all this, a Title IX investigation can feel like an overwhelming prospect. Certainly, it will likely be an uphill battle. You can prevail, though, if you have enough determination and the right professional legal help.

Joseph D. Lento is a Title IX attorney. That means he doesn't just know court procedure. He is qualified and experienced with Title IX specifically. Attorney Joseph D. Lento has represented literally hundreds of students who have been accused of misconduct by their schools. He knows the law; he knows how schools operate. Whether you're trying to fight a false allegation or looking to negotiate the best possible deal for your child, Joseph D. Lento can help. He is empathetic, he understands what you're going through, and he will fight tooth and nail to protect your child's rights and get them the result they deserve.

If your child has been accused of a Title IX violation, don't risk their future to anyone else. Contact attorney Joseph D. Lento and the Lento Law Firm today at 888-555-3686 or use our automated online form.

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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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