A Primer on Notice
Notice generally, and the right to notice in particular, are important legal concepts that can have an important bearing on how Title IX cases unfold. We've prepared this complete guide on the principle of notice to serve as a resource in preparing to defend yourself from Title IX accusations.
Why Does Notice Matter to You?
If you've been charged with a Title IX violation, you are likely feeling nervous, maybe even overwhelmed, by the magnitude of what you're up against. Take a deep breath. You can make it through this challenge.
Sexual misconduct allegations resonate like no others in our society. We hear a lot about victims' rights these days, especially in this era of Me Too. Many advocacy groups have argued for harsher penalties and that victims of sexual assault should always be believed, even if that means pre-judging the accused. Yet, while it is always important to recognize what victims must endure and to try and alleviate suffering, it is equally important to understand that defendants should have rights as well.
Title IX hasn't always been great at protecting defendant rights. There are built-in incentives in the law, for example, that reward colleges and universities for investigating accusations as aggressively as possible. Respondents aren't protected by the “guilty beyond a reasonable doubt” standard. In the past, accused students weren't always guaranteed the right to defend themselves at an official hearing or to cross-examine witnesses against them.
The good news is, Title IX, especially in its current form, does preserve some important due process rights for respondents. The accused do have the right to a hearing now; they do have a right to legal representation; they do have the right to cross-examine witnesses against them.
One of the most important of these rights is the “right to notice.” It doesn't sound particularly exciting, but it ensures that respondents have the information they need to be able to defend themselves effectively. As it happens, the right to notice is also one of the aspects of the law that gets most neglected when schools initiate a Title IX investigation. It's important to know, then, just what this right is all about and how to make sure that it isn't overlooked in your case.
What Is the Right to Notice?
The right to notice is a legal concept in the US government, and especially the US court system, which refers to the information one party is required to provide to another.
Notice is actually such a common concept that most of us have encountered it in some form or another. A landlord in your state, for instance, may be required to give tenants notice before entering their home. If you own your own home, you can increase your legal privacy protections by posting notices about trespassing at the edges of your property. A government agency may issue an “Advanced Notice of Proposed Rulemaking” in order to give the public time to comment on rules it may be hoping to enact. In all these instances, one party is asked or required to provide information to a second party because without that information, the second party can't reasonably be expected to behave appropriately.
Ultimately, notice is a matter of fairness. You can't avoid trespassing on private property if you have no idea you are trespassing on private property.
The Right to Notice in Criminal Matters
Notice takes on a very particular meaning in our court system, but it still has to do broadly with issues of fairness. The idea is that all parties to a dispute should know the rules under which the dispute will be decided and further that they should all have equal access to the same materials in arguing their side of the case. A legal case should be about the merits of the arguments, not about who has access to what information.
The information at stake can include simple facts such as notice of when and where to appear for all judicial proceedings. However, the right to notice applies to essentially every aspect of a legal case. In essence, it ensures that neither the court itself, nor any party using the court, can undertake secret, private, or covert actions.
For example, everyone involved in a case must be made aware of all documents filed in that case. That includes:
When it comes to criminal cases, one of the defendants' most important rights is the right to know the specifics of the charges against them. The Sixth Amendment says this quite plainly:
In all criminal prosecutions, the accused shall enjoy the right to […] to be informed of the nature and cause of the accusation.
In practice, this means the defendant must be told precisely which law or laws they have violated, usually in a Notice of Charges. In fact, if a statute itself is not descriptive enough, the courts have additionally said that the violation must be clearly described as part of the notice of charges.
Further, though, the phrase “nature and cause of the accusation” in this amendment has generally been taken to mean far more than just a simple description of the incident itself. Instead, the law requires defendants in a case have full knowledge of all the elements of the case that is being built against them. They must know what evidence the prosecution has gathered, for example, and which witnesses the prosecution might call. In short, the prosecution has a responsibility throughout a case to share whatever information it has at its disposal.
Why Is Notice so Important?
Again, in simplest terms, notice comes down to legal fairness. Notice ensures that in all legal matters—a court case, for example—all sides are fully aware of what is taking place, and all have an equal opportunity to respond to that information.
In matters of criminal law, the right to notice is part of a defendant's broad rights to “due process.” Like notice, due process is enshrined in a number of places in the US Constitution. For instance, the Fifth Amendment specifically prohibits the federal government from infringing on any citizen's rights to “life, liberty or property without due process of law.” The Fourteenth Amendment makes clear that these same due process rights are likewise protected from state governments.
What is due process, though? The phrase essentially means the right to be treated equally under all legal processes and procedures. So, for example, we treat all defendants as “guilty until proven innocent.” Everyone who comes before a court begins on an equal footing.
The principle of due process may seem like an obvious good to us today because we have lived so long in a culture that insists we should all be treated fairly under the law. It hasn't always been so, though. The legal principle dates back to the Magna Carta in the thirteenth century, which was among the first official government documents to promise that everyone going before the court would be treated under the same established processes of the law. Prior to this, a king might institute rules arbitrarily or change them as a case went on. It's easy to see, then, that without due process, the very notion of justice could not exist since it demands all parties be treated fairly and equally.
The Sixth Amendment enumerates a number of our due process rights, including the right to a speedy trial, the right to be tried by an impartial jury, the right to confront witnesses, and the right to legal counsel.
The right to notice, however, is perhaps the most important of these. Consider how our justice system might operate without this right:
- One of the most horrifying tales in all of Western literature is Kafka's The Trial. In the novel, an accused man isn't even told where and when to go to defend himself. What would happen under such a system? Prosecutors could simply hold all proceedings in secret and convict defendants without ever allowing them the chance to answer charges.
- Similarly, what might be the effect of charging people with crimes but not telling them what those crimes were? In essence, no one could effectively defend themselves since they would have no idea what they were alleged to have done. Innocent defendants, in particular, would be at a disadvantage since they stand accused of crimes they didn't actually commit and so have no idea of the crime at all.
- What sort of disadvantages might a defendant face if law enforcement and the prosecution didn't have to share evidence? The police could simply conceal any materials that might help to exonerate the defendant. Under those circumstances, it would be hard for the defense to ever win a case.
Ultimately, then, it is clear why due process rights, and the right of notice in particular, are so essential to a fair and just judicial system. That's why they are sacred to the American courts. It may be more popular at the moment to talk about the rights of victims, but if we fail to protect the rights of the accused, we risk creating a whole new set of victims, innocent people punished for crimes they simply didn't commit.
Likewise, if we create judicial systems outside the courts—and Title IX investigations certainly qualify—we cannot expect them to render true justice unless they provide these same due process protections, including the right to notice.
Understanding Title IX
Before we go into an explanation of how notice is involved in Title IX, it is important to have some context for Title IX cases, including an understanding of just what they are and how they work. This will make the discussion of notice as it relates to Title IX much easier to follow.
In simplest terms, Title IX is a federal law passed in 1972 that prohibits sexual discrimination at all education programs that receive federal funding. The history of the law is complex, and we detail it later. For now, though, you should know that “discrimination” is broadly interpreted under this law to include not just discrimination in the simple sense of that term but any behaviors that are motivated by sex, including harassment, stalking, even sexual violence. In other words, Title IX puts colleges and universities in the position of policing and adjudicating some of the most serious crimes in all of our society.
Not all sexual misconduct cases are Title IX cases. A school may decide to investigate an incident that occurs between two students in an apartment complex, even though Title IX itself doesn't apply to off-campus events. When Title IX is invoked, however, colleges and universities must follow a concrete set of guidelines for conducting the investigation and determining responsibility.
- Each school must have a Title IX Coordinator. All formal complaints must originate in this coordinator's office.
- When a formal complaint is made, the Title IX Coordinator is obligated to inform both parties of the charges and to explain how the “grievance process” for resolving Title IX matters works.
- The Title IX Coordinator then assigns an investigator to look into the incident.
- The investigator interviews both parties. In addition, they collect any physical evidence and interview any relevant witnesses.
- Once they have collected all this material, the investigator completes a full written report detailing their findings.
- Both sides in the case have the opportunity to respond to the investigative report and to suggest any changes.
- The report is then forwarded to the Title IX Coordinator.
- The Title IX Coordinator appoints a Hearing Officer to oversee an official hearing in the case.
- Either the Hearing Officer or an appointed panel hears the case. Both sides present evidence and have the right to cross-examine the other parties and any witnesses.
- At the conclusion of the hearing, the decision-maker(s) determines whether the respondent is “responsible” (guilty) or “not responsible” (not guilty) for the Title IX violation. In addition, the decision-maker(s) assigns an appropriate sanction to students found responsible.
- Finally, both sides have a limited opportunity to appeal the hearing decision. They can appeal the decision itself, or they can accept the decision but appeal the specific sanction that has been imposed.
The Title IX process can be complicated. This outline merely sketches the major components. However, it offers a useful starting point for beginning to think about some of the more complex aspects of investigations and hearings and particularly how the issue of notice applies.
What Kind of Notice Does Title IX Require?
Educational institutions aren't set up to prosecute legal cases. Chemistry professors know a lot about chemistry but typically very little about the finer points of the law. Recognizing this, the government has tried where it can to simplify campus judicial processes. Unfortunately, this sometimes means schools don't fully honor defendants' due process rights.
If you've been accused of sexual misconduct, you do have rights under Title IX, and among these is the right to notice.
It is important to recognize, though, that notice doesn't only favor defendants. It is a principle that applies in a number of different contexts.
Notice to Students About Title IX
In its broadest sense, “notice” means what it sounds like. That is, it involves making sure all parties in a case are fully informed, that they have been given notice of facts. When it comes to Title IX, this sort of notice actually starts with ensuring all students are aware that Title IX exists.
The courts have consistently ruled that schools are only liable for Title IX offenses if they have “actual knowledge” of sexual misconduct and respond to that knowledge with “deliberate indifference.” Nevertheless, the executive branch, which administers Title IX, has generally held—at least since the Clinton administration—that schools have a larger responsibility. Specifically, they must create an “atmosphere” or “environment” free from sexual discrimination and harassment. In other words, the executive branch believes colleges and universities have an obligation to help prevent sexual misconduct before it happens. That means making sure all students understand what sexual misconduct is, what Title IX is, and what specific resources the law provides to victims.
First and foremost, schools are required to maintain non-discrimination policies and to publish notice of those policies. Schools typically include this information in all recruitment materials, for instance, both materials targeted at potential employees and materials targeted at potential students. Virtually every school also makes its non-discrimination policy available online and in physical form, such as student manuals. Frequently, Title IX notices can be found in public spaces as well, such as the student union, dormitories, and classroom buildings.
The notice does not have to address sexual violence as a type of discrimination specifically. However, the government has, in the past, recommended schools do so.
In the beginning, such notice was meant to provide information to potential victims, to make sure that anyone who was subject to sexual harassment knew they had options for receiving support and seeking justice. However, recent changes to Title IX have been aimed at making the notice useful to respondents as well.
In May of 2020, for example, the Office of Civil Rights of the Department of Education issued new guidelines for how Title IX should be enforced. As part of these guidelines, the OCR reaffirmed that all schools must publish their Title IX coordinator's contact information as well as their full non-discrimination policy. In addition, the new rules mandated that schools publish all training materials used to train Title IX personnel. Making this information public is meant to guarantee that schools maintain processes and procedures that treat both sides fairly and equally. Doing so also ensures that respondents have open access to how investigators and adjudicators behave during a case. The idea is that all Title IX procedures should be absolutely transparent.
In part, this addition to Title IX came about as the result of a number of court cases in which judges specifically determined that respondents' due process protections had been violated by their schools. Over 700 such cases have been filed in the last decade alone. In one important case, judges discovered that the University of Mississippi had instructed investigators to treat lies from complainants as proof those complainants were telling the truth. The goal of requiring schools to make such materials public is to minimize the chances these kinds of unfair practices can happen.
Notice of Title IX Violations
Notice is used in another sense when it comes to Title IX: In terms of who does and doesn't have an obligation to inform—or provide notice—of sexual misconduct. Here again, this type of notice is primarily aimed at helping potential victims of sexual misconduct. The information at stake is knowledge of the incident itself.
Under current Title IX guidelines, all teachers and staff at K-12 schools are required to report any knowledge they may have of sexual misconduct. Such a requirement reflects the belief that minors may need some help in giving notice of a violation to school authorities.
Whether or not colleges and universities should be required to institute similar policies is a subject of much debate. On one side of this debate, those who believe we must do more to draw attention to victims' voices argue that in order to make this happen, we must make sure notice can come from many different sources, including university faculty and administrators. On the other side, those who feel college students are fully capable of reporting violations themselves argue that forcing faculty to report as well creates a hostile environment where paranoid staff spend too much time looking for problems where none may exist.
For now, Title IX rules don't require this kind of notice from faculty at the college and university level. However, the Biden administration has encouraged schools to enact their own policies that make notice mandatory.
Notice of Grievance Procedures
Colleges and universities aren't just required to publish their non-discrimination policies. They must also maintain a clear set of grievance policies for dealing with violations and let students know exactly what these policies are, answering questions about how the Title IX process itself works.
- What resources will the school make available to both sides? As part of their grievance policies, colleges and universities must make clear what rights students have. Importantly, both sides must be treated equally: Any rights afforded to complainants must also be granted to respondents. For example, schools are required to offer both students access to support services like medical care and counseling. Schools should take complaints at face value—that is, they should accept a complainant's story—but they must also treat respondents as “innocent until proven guilty.” Both sides are entitled to appoint an advisor to help them with the case, and this advisor may be an attorney. Essentially, any rights guaranteed or provided to one side must be available to the other side as well, and all these rights must be clearly spelled out in a publicly accessible policy.
- How long will investigations take? The school must also set a timeline for how long investigations will take. Many schools, for example, choose to limit investigations to 45 or 60 days. A university may modify this timeline by changing its grievance policy, but it may not deviate from a timeline for any case adjudicated while the previous policy was in effect. Here, as in other instances, the point is to make sure that both sides know how the process will work and the process can't simply change without warning.
- Who will decide responsibility? Accused students are entitled to defend themselves at a formal hearing. Schools have some leeway, though, in how they determine a student's responsibility. Many schools use a panel of deciders, made up of faculty, staff, and students who have received some training in sexual misconduct cases. However, the school can appoint a single individual to hear the case and decide the outcome, as long as this person is different from the Title IX Coordinator and the case's investigator. Whatever approach a school chooses for adjudication, that choice must be published as part of the grievance policy, and schools must abide by it as long as the policy is in effect.
- What are the hearing procedures? Current Title IX rules dictate certain aspects of sexual misconduct hearings. For instance, both sides have the right to cross-examine witnesses, but only advisors may ask questions. However, schools do have some options. They are free to decide, for instance, whether advisors may ask questions to witnesses directly or if they must first submit those questions to a hearing officer who verifies the questions are fair and relevant. Such details must be written into the grievance policy.
- What standard of evidence will deciders use? Schools can choose which standard of evidence to use when deciding a student's responsibility. None use the “beyond a reasonable doubt” standard we're used to in American courtrooms. Some use the “clear and convincing” standard, which demands that deciders believe it is “highly probable” a crime occurred. Most, however, use the weaker “preponderance of evidence,” which only requires that deciders believe a crime is “more likely than not” to have occurred. Whichever standard a school uses, its choice must be clearly set out in its grievance policy, and it must abide by that choice in all cases adjudicated under that policy.
- How is “consent” defined? In addition to which standard of evidence a school decides to employ, how a school defines “consent” can play an enormous role in whether respondents are found responsible or not. Some schools, for instance, insist that any student who has been drinking cannot consent to sexual activity. This effectively means a respondent can be found responsible if sexual activity occurred at any point after their partner had had a single drink. In a similar way, schools vary when it comes to how participants must signal their consent. Some require consent to be given in clear verbal words. Others allow consent to be understood from a participant's actions.
- What are the potential penalties for students found responsible? Title IX does not mandate what sanctions schools may assign for sexual misconduct. It does, however, require that schools must publish a schedule of penalties, and it dictates they cannot use a sanction that isn't already part of that list.
- What is the process for appeal, including time limits? As with all other aspects of the case, schools must have a clear set of procedures through which students can appeal a hearing decision. As part of those materials, they must make clear who will hear such appeals. Schools typically set a time limit on how long students have to file an appeal once the hearing is over. The school can set its own limit, but that limit must also be established by policy, and it must apply equally to both sides in the case.
Notice of Charges
Perhaps the most important notice the school must provide for defendants, though, is the notice of the charges themselves. That is, when a college or university decides to initiate a formal Title IX investigation, and the Title IX coordinator signs a formal complaint, schools must immediately alert respondents that they are being investigated and provide them with all important information about the case.
As part of this notice, the school must, first and foremost, make certain the respondent has access to complete information about the school's grievance policy. Obviously, this kind of information is necessary to mount a defense, given that it clarifies how to navigate the Title IX justice system itself. While the law requires the school to publish this information, the notice of charges should, at a minimum, direct the accused to exactly how to find it.
In addition, the notice of allegation must include:
- Reference to the specific code violation with which the respondent is being charged. The accused must know from the beginning what specific violation they have committed so that the school cannot arbitrarily investigate them under the broad accusation of “sexual misconduct.”
- Details of the crime sufficient for the respondent to prepare a response prior to any initial interviews. These details must be provided with sufficient time for the respondent to prepare for that initial interview.
- Identities of all known participants. This information should certainly include the claimant, the person responsible for making the allegation. That is, respondents should know exactly who has leveled a charge against them.
- Time and place of the incident. As part of the general information about what happened, respondents must be told when and where an alleged incident is supposed to have occurred.
- A clear description of the alleged conduct so that the respondent may know exactly what they are being accused of. Innocent students, in particular, won't have any way of knowing what they've been accused of if it is not clearly described. Not having this information would make it impossible to mount an adequate defense.
The Notice of Charges should include a number of additional statements that aren't necessarily about the specific charges, but that remind respondents of their rights under Title IX. Students deserve notice, for instance, that they:
- Are to be presumed innocent until found responsible
- Are entitled to representation (advisor) and that their chosen representative may be a lawyer
- Have the right to inspect and review any and all evidence in the case
It is also worth knowing that Title IX dictates that if the school initiates additional investigations not mentioned in the original Notice of Charges, it must provide an additional notice for each new charge. This guarantees a school can't surprise a respondent with additional charges at the hearing.
Notice of Support Services
One of the important recent changes to Title IX involves what support services a school must offer to respondents. In the past, the government encouraged colleges and universities to provide certain resources to complainants, including medical care and counseling services. Many schools went further, offering complainants help with course work, schedule changes, even leaves of absence.
Under current Title IX guidelines, instituted in 2020, medical care and counseling are now mandated support services. Equally as important, current rules say that respondents must be given the same access to services as complainants. In other words, the accused has a right to medical care and counseling services, the same as their accusers. They must also be afforded any other support services available to complainants. Not only are they entitled to these services, but the school has an obligation to provide them with notice that such services exist.
Notice of Removal Procedures and Opportunity to Respond
A college or university is entitled, under Title IX guidelines, to seek to remove a student who they believe is a direct threat to another student or to the campus community at large. However, Title IX warns schools not to remove students arbitrarily. Further, Title IX prohibits schools from removing any student before they have undertaken a full investigation. Such a rule is in keeping with the general principle that respondents should be considered innocent until proven responsible.
In addition, any student who has been targeted for removal must receive notice that the school is seeking such action. They must also be given an opportunity to respond to the removal order. Once again, the principle of fairness comes into play here. If a school simply has the power to remove a student without notice, they might be tempted to do so as a means of hindering that student's defense. After all, it can be difficult to gather evidence and interview witnesses if you have been banned from campus.
Notice of all Meetings
Obviously, for a fair investigation and hearing to take place, respondents must be fully informed as to when and where they have been requested to appear. This means that schools must also provide clear notice of all meetings that are to take place about the case. This notice should be provided with enough advanced warning that respondents can make arrangements to attend.
More importantly, the school is required to let participants know the purpose of each meeting. This ensures students cannot be surprised in an interview. If an investigator intends to question a respondent, they should know that going in.
The school should provide this type of notice for all types of meetings, including:
- Initial interviews with campus investigators or police
- Interviews for the purposes of gathering testimony
- Informal resolution meetings
- Appeals interviews
Notice of meetings is not limited to the two sides in the case. For example, the school must also provide advanced notice to any witnesses who have been asked to testify so that they have plenty of time to make arrangements to attend.
Notice of the Investigative Report
The first part of a Title IX case involves a thorough investigation. The investigator is assigned to gather any and all physical evidence and to interview both parties as well as any relevant witnesses to the incident. They have a set time in which to complete this task.
At the conclusion of the investigation, the investigator is also required to create a full written report that details all their findings. This report will ultimately be handed over to the Title IX Coordinator and can be used during the hearing.
Before this happens, though, the investigator must solicit input on the document from both sides in the case. That is, they must provide written notice to both parties that the document is finished and that both have a right to suggest additions, deletions, and revisions before the document is put into its final form and submitted to the Title IX Coordinator.
Title IX specifies that both sides should have access to the report at least ten days before the next part of the case—the hearing—begins.
Notice of Outcome
Likewise, Title IX makes clear that respondents and claimants must both be informed of the outcome of the official hearing.
In addition, should the school decide at any point to dismiss the charges against the respondent, they must also send written notice to both parties that this has occurred.
Notice of Appeals
As part of the notice of outcome, respondents should be given notice that the school maintains an appeals process. That notice should indicate precisely how that appeals process works, including how to initiate a formal appeal, what paperwork is involved, where to submit this paperwork, and who will be assigned to judge the appeal. In addition, the school should maintain a clear policy about how long students have to file such appeals after their hearings are decided. This, too, should be clear in the Notice of Appeal.
Notice of Appeal Outcome
Either side in a Title IX case may appeal the hearing findings. They may appeal that finding under two specific conditions:
- Discovery of new evidence that would have a direct impact on the findings in the case
- Clear demonstration of procedural mistakes, including bias on the part of one or more Title IX officials
In addition, either side may appeal the sanction itself, arguing that it is too strict or too lenient.
Just as in the case of the hearing, both parties have a right to be informed of the outcome of any appeals.
How Should Notice Occur?
The school must provide students with written notice. However, that notice need not be in physical form. In other words, the school may decide to send students emails to apprise them of the information they need. Once again, however, it is important to note that both sides should be treated in the same manner. If the school chooses to call the complainant with regular updates about the case, the respondent is entitled to receive the same kinds of updates.
The Evolution of Notice in Title IX Law
There is yet one other sense in which the concept of notice applies to Title IX. Specifically, the federal government must provide notice to the public when it makes changes to the law or to how the law is enforced. In fact, over the last decade, such changes have become more and more frequent as all sides of the political spectrum have come to see Title IX as a key component in their attempts to shape social policy.
So, for example, in June 2021, the Biden administration issued a Notice of Interpretation stating that they would be extending Title IX protections to transgender and homosexual students. Schools were instructed that they should treat these students as a protected class in terms of sexual discrimination and harassment, but more importantly that they would be expected to investigate all instances of discrimination, harassment, and sexual violence experienced by LGBTQ+ students.
What is the history of Title IX, though, particularly as it applies to the principle of notice?
Title IX: In the Beginning
We mentioned earlier that Title IX was passed by the US Congress in 1972. While how the law is enforced remains a contentious topic, the basic premise behind it is not. At the time, Title IX was an important and necessary step forward in the march towards women's rights. College campuses in 1972 could sometimes be openly hostile environments for women, and the law was instrumental in bringing about much-needed reforms. Today it continues to ensure that little girls receive just as much encouragement to study math and science as boys.
However, the premise of Title IX doesn't actually have a great deal to do with contemporary debates. That's because Title IX was never intended to operate as it does today. Current Title IX rules are the result of a complex evolution in the law and a key shift in how the government defined both “discrimination” and institutional responsibility to protect women and other minorities against discrimination.
Title IX was effective almost from the moment it was passed. Schools very quickly stopped discriminating against women once the law went into effect. It helped that the law threatened to withhold funding from any school that refused to comply. To date, no school has ever lost funding, but none is particularly eager to risk that possibility either. Once schools had stopped discriminating themselves, though, the federal government began pushing them to go further, to create safe “environments,” where women could be free from all discrimination, even from their fellow students. The prohibition against discrimination was taken to mean something different from “don't discriminate.” It meant something more akin to “eradicate discrimination.”
This change in approach to the law's meaning brought about a number of significant shifts on college campuses. For one thing, schools became less interested in policing their own behaviors and began devoting far more of their energy to policing their students' behaviors.
This also involved an important shift in the very definition of “discrimination.” Once student behaviors were the focus, that word had to mean something more like “mistreatment” generally. That is, schools were expected to prevent any behaviors motivated by a victims' sex that could potentially interfere with the victims' abilities to get an equal education. That came to include far more than just “discrimination.” It included a whole range of harassing and even violent behaviors, from stalking to sexual assault and even rape.
So, Title IX isn't what it once was. What does all of this history have to do with issues of notification? Simply this: notification wasn't an important topic when the law was first passed because it wasn't a school's responsibility to prosecute its own students. Rather notice has become an increasingly important component of the law.
Two Supreme Court cases in the late twentieth century – Gebser v. Lago Vista Independent School District (1998) and Davis v. Monroe County Board of Education (1999) – changed the Title IX landscape yet again, and this time the issue of notice did matter. Both cases involved the question of whether a school could be held liable for one student's behavior towards another. Essentially the two tested the very premise that schools were meant to police sexual misconduct among their student body.
The courts ultimately decided that schools could only be held liable if two conditions were present.
- The school had to have “actual knowledge” of sexual misconduct.
- The school had to act with “deliberate indifference” to this misconduct.
In other words, the court split the difference: schools were responsible for policing their students, but only when they knew about a specific incident of misconduct.
In response, the Clinton administration did what it could to put the burden the Supreme Court had removed from schools squarely back onto them. First, they mandated that schools must publicize Title IX—or give notice of the law—so that all students were aware of it. Second, they argued that school faculty and staff should be required to report any knowledge they had of any sexual misconduct incidents. The goal was simple: if the Supreme Court said a school must have “actual knowledge” of sexual misconduct to be held liable, then the administration would try to increase how much “actual knowledge” they had.
The burden to provide notice, here, was on schools and their employees, who were required to provide information about sexual misconduct. The beneficiaries were potential victims who would now know more about their rights and the processes in place to protect those rights. Respondents' needs and rights, on the other hand, were essentially ignored, a pattern that would continue for at least two more decades.
2011 Dear Colleague Letter
The next significant move in what was becoming a battle over the meaning and intention of Title IX happened in 2011. In that year, the Office of Civil Rights for President Obama's Department of Education issued its own instructions to schools on how the law should be interpreted.
The so-called “Dear Colleague” letter reinforced many of the Clinton administration's earlier requirements that schools publish their non-discrimination policy and grievance procedures. In addition, it updated these requirements for the internet age, arguing that these materials should be posted online.
Once again, the emphasis here was clearly on a school's responsibility to victims, especially when it came to notice. Indeed, the letter went further in helping to buttress victims' rights. For example, the Obama administration defined hate speech as “harassment,” making certain acts of language into Title IX offenses. In addition, the administration made clear that any activity in any way connected to an educational program, even if that activity occurred off-campus, qualified as a Title IX violation. This included sexual misconduct that happened in off-campus housing. It also included, importantly, activity in digital and online spaces.
The impact of expanding Title IX in these ways was to further limit respondent rights. In fact, the Obama administration went so far as to instruct schools to believe all complainants, putting the very idea of “innocent until proven guilty” into jeopardy.
2017 Questions and Answers
The Trump administration, which came into power in 2016, was determined to roll back much of what the Clinton and Obama administrations had instituted when it came to Title IX enforcement. Their first salvo was to rescind the “Dear Colleague” letter entirely. Next, they offered their own interpretive document, a set of Questions and Answers regarding the many issues that had by this time grown up around Title IX.
One of the major aims of this document was to restore some rights to the accused. For example, the administration noted that:
Schools must formulate, interpret, and apply their rules in a manner that respects the legal rights of students and faculty, including those court precedents interpreting the concept of free speech.
The message was clear. Protecting women and other minorities from discrimination should not infringe upon other fundamental American rights.
Likewise, the Q & A document noted that, while schools may sometimes find it necessary to take “interim measures” to remove a student from campus, the school should not “rely on fixed rules or operating assumptions that favor one party over another.” Everywhere, in fact, the administration made clear that both sides in a sexual misconduct case were to be treated equally, and the school's responsibility was to act as an impartial judge:
The burden is on the school—not on the parties—to gather sufficient evidence to reach a fair, impartial determination as to whether sexual misconduct has occurred.
2020 Final Rule
Finally, in 2020, the Department of Education, under the direction of Betsy DeVos, issued what it called the “Final Rule,” a set of guidelines for how Title IX should be enforced that was aimed at consolidating the Q & A's arguments and restoring some balance to the system in favor of respondent rights.
In terms of our discussion of “notice,” it is worth noting that the Trump administration justified many of its efforts by pointing out that the “Dear Colleague” letter from 2011 had not provided proper notice to the public. It had not been subject to a full public discussion before it was enacted and, as a result, should not be considered a legally binding government document.
In contrast, the Final Rule underwent an exhaustive comment period from the public, and the document itself goes into great detail about these public comments when laying out each specific requirement of the law. In response to each and every aspect of the new guidelines, the document presents the issue and summarizes the public comment before explaining how the issue has been officially resolved.
What did the Final Rule do? Among other things, it narrowed the definition of “discrimination” so that use of the word didn't include most forms of hate speech. It also limited school jurisdictions so that only misconduct that occurred on campus or in relation to sanctioned school events could be treated as Title IX violations.
Most importantly, the Final Rule created or restored a number of due process rights to the accused. For example, the administration made clear that respondents had the right to a presumption of innocence. In addition, the Final Rule gave respondents the right to cross-examine their accusers as well as any witnesses against them.
In terms of notice, the Final Rule turned things around when it came to how Title IX had traditionally used notice to protect victims. The Trump administration reaffirmed, for example, that the school was required to publish its grievance policies. Indeed, the Final Rule explains that schools must apprise both sides of this policy when they charge students. In addition, though, the Trump administration required that a school's policies regarding how long the investigation is to take place, who is to decide the case, and how appeals should proceed must all be firmly in place and published and that they must apply equally to all students.
In fact, the Final Rule further made clear that respondents must be treated fairly and equally to claimants in all aspects of a Title IX case. That means respondents must be given notice of what support services are available. They must be given notice of all resources at their disposal to defend themselves.
Most importantly, respondents are entitled to that initial notice of the charges, a notice that describes the incident in detail and names the accuser. This same requirement for notice continues to operate throughout the case so that respondents always have access to evidence and witnesses and can properly prepare a defense based on a full knowledge of the facts in the case.
2021 Questions and Answers
As it happens, the Final Rule may not have been the “final” word on Title IX enforcement procedures. Joseph Biden campaigned to undo the Trump administration's work on Title IX, and President Biden wasted no time in working to fulfill those campaign promises. Almost immediately upon taking office, Biden instructed his Department of Education to establish a committee to investigate how to roll back the Final Rule. That panel is expected to deliver its recommendations sometime in 2022.
In the meantime, Biden's Office of Civil Rights has issued two important notices. The first of these was the “Notice of Interpretation,” published in June 2021. It instructed schools to treat transgender discrimination and harassment as Title IX offenses and to investigate them and adjudicate them as such.
The second was a Questions and Answers document of its own, published in July 2021, which ostensibly offered schools guidance on how to implement Final Rule provisions. Most of these questions and answers, in fact, are written to either reassure schools that the Final Rule does not undermine their authority or to suggest concrete ways in which schools might legitimately get around many of the Final Rule's provisions.
As far as notice goes, this document left intact most of the Final Rule's requirements that respondents be provided with notice about their charges, meeting times, case outcomes, and any evidence against them. Further, it affirms previous administrations' contentions that schools must maintain grievance policies and must make them public.
Where the Q & A makes changes to notice, these have to do with reporting requirements. The Final Rule left in place a requirement that K-12 school staff be required to report or offer “notice” of any sexual misconduct they should become aware of. However, it rescinded the policy of requiring college and university faculties to do the same. The administration doesn't have the authority, of course, in a simple Q & A to reinstate that requirement. Indeed, some legal scholars have questioned whether it has such authority at all. However, the administration reemphasizes the requirement for K-12 schools, and at the same time, it suggests ways in which schools might get around the Final Rule's application to post-secondary institutions. Specifically, this document notes that the Final Rule doesn't prohibit schools from enacting their own policy requirements that faculty and staff give notice of sexual misconduct. The Trump administration restricted who could sign official Title IX complaints to complainants and Title IX Coordinator. However, that doesn't preclude the school from making it official policy that staff report their knowledge of such incidents, and the Q & A document actually encourages them to do so.
What Notice Means to You
As we've tried to suggest, “notice” has several different meanings when it comes to the government and the law, and there are a number of ways in which the concept of notice can impact a Title IX case. Here's the real question, though: If you've been accused of a Title IX violation, what do you need to know about notice? How will it affect your case, and how can you use it to your advantage?
How Notice Will Affect Your Case
As we've tried to suggest, notice will likely be a fundamental issue in virtually all aspects of your case, from the initial charge, through the investigation and hearing, and into the appeals process. The more you can master the principle of notice, the better able you'll be to protect your own rights and to participate in crafting a solid defense.
First, notice may very well play a role in whether you are accused in the first place. The requirement that schools provide notice to their students about Title IX as well as what resources are available to victims obviously ensures everyone on campus has recourse to justice. However, that same notice can potentially work to create an atmosphere of fear and paranoia at many colleges and universities. It isn't unusual, for example, to find posters on campus that report an alarming statistic: that one in five college women will be a victim of sexual assault. The obvious suggestion such a poster makes is that women on campus are vulnerable. What the poster doesn't say is that women who aren't in college are more likely to suffer sexual assault. While no one would argue either of these numbers is acceptable, the fact is that women on campus are actually safer than those who aren't.
This paranoia generated by notice can be particularly heightened on campuses where the faculty have been ordered to report all instances of sexual misconduct. Afraid for their jobs, instructors and staff can become too vigilant, jumping to conclusions in instances that might otherwise have innocent explanations.
- Notice of the grievance procedures will have a direct impact on the case all the way through, but this will begin as soon as the Title IX Coordinator signs an official complaint. In many ways, this is to your advantage since it prevents the school from changing the rules as it goes. It's also one good reason why it's important to know these policies now, even before you've been accused since you'll be expected to know them once you are.
- As in actual criminal cases, you'll receive a Notice of Charges, and this will be enormously important in dictating how you move forward. Because it not only lists your offense but provides important information about what happened, this document will help your attorney begin to design your defense.
- Notice of meetings will ensure that you are fully prepared and ready every time you must face investigators or appear at a hearing. You'll know about interviews with enough time beforehand to prepare, and because you're entitled to know what each meeting is about, you can target your preparation.
- All the notice you receive, from the Notice of Charges to continuing notices about evidence and witnesses, will be vital tools for your attorney. They ensure that you know everything the other side knows and that you can't be surprised at any point in the investigation or hearing.
How to Handle a Title IX Accusation
If you should find yourself accused, don't panic. A Title IX investigation is scary, but if you follow some basic advice and use your common sense, you can survive.
Your very first job? Get legal representation. If there's one lesson to take away from this guide, it is that Title IX cases are complicated. Even a simple legal principle like notice can be applied in a host of ways. You're a student. Obviously, you should do all you can to contribute to your defense, but in the end, you can't possibly be expected to understand everything that happens in your case. That's what a lawyer is for. You may believe that because this is happening at college, it's not as significant, that you don't need an attorney because little is at stake. Make no mistake: your entire future is on the line. Don't assume you can handle this situation on your own.
When it comes to notice:
- Keep all the documents you receive and turn them over to your attorney immediately. Many of these documents will provide you with notice of important aspects of your case. If the school communicates with you through email, it is a good idea to print out these messages, so you have hard copies. In addition, you will want to get into the habit of forwarding such messages directly to your attorney.
- Collect any documents relating to other kinds of notice, such as a copy of your school's grievance policy, a copy of the school's definition of consent, and any other materials that might be available on the school's Title IX webpage.
- Your school will likely provide you with notice that you are barred from talking directly with your accuser. Make sure you comply with this notice. It is tempting to believe that if you could just sit down with the complainant and talk about what happened, you could sort it all out. Unfortunately, it's too late for that. Even if that were to happen, the school would likely still continue its investigation. They don't actually need a complainant to proceed with a Title IX complaint. Worse, your attempts to contact the complainant will almost certainly be used as further evidence of your guilt.
Finally, make sure you take care of yourself. Continue to go to classes. Exercise. Eat properly. Consider seeking counseling to help you deal with the stress and anxiety you'll face. It is important that you remain strong and positive throughout your case. Only then can you help your attorney defend you.
Joseph D. Lento: Title IX Attorney
“Notice” is a complicated component of any Title IX defense. The term has a number of distinct legal meanings, and when it comes to school investigations and adjudications, it's frankly easy for a college or university to make mistakes. In this age of Me Too, schools are under enormous pressure from the media and their own communities to take hard stances on sexual misconduct. This sometimes means they go so far in protecting victim rights that they neglect respondent rights.
This situation is further complicated by the fact that the law seems to change with each new presidential administration. At present, for instance, the Biden administration has muddied the waters when it comes to how advisors may represent their students, and it is impossible to predict what changes may be coming in the next several years.
Notice is only one piece of Title IX cases. Consider all the others we haven't addressed here.
You can't handle a Title IX defense on your own. Too much is at stake to try and navigate the complexities of campus justice without professional help. Schools allow you to choose an advisor, and they allow you to select an attorney. Take advantage of that opportunity.
Joseph D. Lento isn't just an attorney. He specializes in campus justice. Attorney Joseph D. Lento built his career defending students from Title IX sexual misconduct charges. He's represented literally hundreds of students from all types of accusations. Joseph D. Lento knows Title IX law. He understands its history, he knows the politics that surround it, he's up to date on all the most recent changes. He also knows how colleges and universities operate. Joseph D. Lento has seen schools try to take advantage of students, violate their due process rights, and convince them to accept unfair agreements. He is passionate about standing up for your rights, and he won't rest until you get the best possible outcome to your case.
If you or your child has been accused of a Title IX violation, don't wait. Start building your defense now. Call attorney Joseph D. Lento and the Lento Law Firm today at 888-555-3686 or use our automated online form.