New Title IX rules went into effect on August 14, 2020. Click here to learn about the changes to Title IX and how college sexual misconduct cases will be addressed and adjudicated under the new rules.
When most people hear “Title IX,” they think about sports. That's because the law has frequently been used to demand that women be given the same athletic opportunities as men on college campuses. Some people are in favor of this; some people are opposed. Either way, these kinds of stories make for splashy, memorable headlines.
If you're a student, though, you probably already know that Title IX has another important use: as a mechanism for investigating accusations of sexual misconduct. If anything, its use in this regard is more consequential—and more controversial—than its use in relation to sports. Every president of the last three decades has tried to tinker with the law in one way or another. The Supreme Court has weighed in on multiple occasions. It is one of the most important topics of the Me Too movement.
What is Title IX, though? What does it actually say? How has it been interpreted over its fifty-year history? Most importantly, what does it have to do with you? Until you can answer these questions, you really don't understand this law. And just to give you a bit of a head start, the answer to that last question is “probably far more than you realize.”
Just What is Title IX?
Title IX is a federal law originally passed in 1972 and aimed at eliminating sexual discrimination and harassment in US educational programs. The central text of the law is actually fairly simple and straightforward:
“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.”
The intention here is clear enough, and that intention isn't especially controversial. Most of us would agree that women deserve the same educational opportunities as men. In fact, Title IX was an important and necessary step forward in the march towards greater equality for women in all areas of society. In the late 1960s and early 1970s, college campuses could sometimes be openly hostile and even dangerous places for women. At some schools, women were banned from studying certain subjects. Many schools had strict dress codes and curfews that applied only to women. A few even required women have signed permission forms from their parents before enrolling. Unquestionably, colleges and universities are better off today as a direct result of Title IX.
What's all the fuss, then? Why do so many people spend so much of their time fighting over this law?
Simply put, Title IX isn't the law it was when it was passed some fifty years ago. Over time, the law's use has shifted. Originally, Title IX held schools accountable for their actions towards women. Now it holds students responsible for their actions towards women. That distinction may not seem like much, but it raises a whole host of questions about the nature of education, student rights to free speech, how to protect sexual assault victims, and how “justice” should be defined in educational institutions.
How Did We Get Here?
The problems with Title IX aren't simple, and they didn't happen overnight. Three separate changes had to occur. Any one of those changes, by itself, would not have made much difference to the law or how it was enforced. Together, though, they have had an enormous impact.
1. The first of these changes has to do with how the law is enforced. When Title IX was passed in 1972, Congress needed some means of holding schools accountable for following it. It had to be more than just a gentle suggestion. Lawmakers ultimately chose to withhold federal funding from any schools that refused to cooperate. It worked. Once money was involved, virtually every school in the country quickly fell into line. Today, colleges and universities take Title IX compliance extremely seriously. No one is willing to risk even a dollar to look the other way when it comes to sexual misconduct.
2. The means of enforcing Title IX made sense, except for another, more subtle change that took place in how the law is interpreted. The law actually bars discrimination “under any educational program.” That would seem to suggest schools are the ones being held accountable: universities are responsible for ensuring that their own employees–faculty, staff, administrators–don't practice discrimination or harassment. That's a perfectly reasonable expectation.
Then something happened. First, the government decided that schools should also have a responsibility for creating a positive, non-discriminatory environment. That is, a university should encourage its students to behave appropriately. Then, the government went further, arguing that if students behaved badly, it was ultimately the school's fault. Eventually, it insisted schools take measures to control student behaviors. Today, Title IX has very little to do with how schools treat women. It's all about how students treat one another.
3. Again, changing in who was held responsible for discrimination might not have made much of a difference had it not been for another key shift, this time in the definition of the term “discrimination.” In its simplest sense, “discrimination” means unequal treatment. Sexual discrimination in an educational setting, then, would seem to include actions like creating unfair admission standards for women or assigning different kinds of course work to men and women. US courts, however, have taken a much broader view of this term. In a series of rulings over several years, judges decided that “discrimination” includes any sex-based action that interferes with a woman's right to an equal education. Under this reading, stalking, sexual assault, rape are all crimes that happen because of a person's sex. All of them potentially interfere with a person's ability to get an education, so all of them qualify as Title IX violations.
Taken together, these three changes created a set of significant problems.
- First, colleges and universities have a clear incentive to investigate all accusations of sexual misconduct, no matter how unlikely they might be, and to do everything they can to find accused students responsible. Failing to do so risks losing federal money.
- As a result, these single institutions serve as the accusers, the investigators, and the judges in sexual misconduct cases, a clear conflict of interest.
- Schools are placed in the difficult position of aggressively pursuing charges against their own students. In essence, a business (the school) is responsible for prosecuting its customers (the students).
Perhaps the biggest problem, though, is that schools aren't just responsible for investigating simple discrimination or harassment. They must investigate and adjudicate some of the most heinous crimes a person can be accused of—sexual assault, relationship violence, date rape, rape. That's a big ask for a community with no legal training.
The federal government might have addressed these problems directly by re-defining discrimination or by making Title IX cases the purview of the police and courts. Instead, the government instituted stopgap measures designed to minimize the burden on schools. Most of these came at the expense of the accused.
For example, universities were allowed to develop and implement their own set of procedures for dealing with Title IX cases. They weren't expected to follow the law since the law is simply too complicated. They weren't required to respect accused students' due process rights. They didn't have to allow respondents an official hearing to defend themselves. They could assign any sanctions to their students that they saw fit.
The situation with Title IX only deteriorated from there. The Obama administration, for instance, saw an opportunity in 2011 to bring about even deeper and more lasting social change. In its so-called “Dear Colleague” letter, Obama's Department of Education directed schools to believe every accuser, even if that meant starting an investigation with the presumption that a respondent was guilty. In addition, the letter made certain kinds of “hate speech” into Title IX violations, a move that put the law directly at odds with the First Amendment.
At that point, a student could be accused of making inappropriate classroom comments and summarily expelled with no opportunity to cross-examine witnesses or to even present evidence on their own behalf.
The Most Recent Title IX Changes
Not to be outdone, the Trump administration set out to make its own changes to Title IX. Trump had in mind bringing some much needed balance back to campus justice procedures. In May of 2020, the Department of Education issued new guidelines, known collectively as the Final Rule. Among other changes, these guidelines narrowed the definitions of “discrimination” and “harassment,” limited schools' jurisdictional authority, and guaranteed certain due process rights to respondents, including the right to be presumed innocent, the right to an official hearing, and the right to cross-examine witnesses.
Defense attorneys and First Amendment rights advocates cheered these changes.
Most schools protested them, loudly. Victims' rights groups insisted they would undermine the chance for victims to get justice. Several states' attorneys general sued to keep the rules from going into effect.
When all this failed, schools resorted to other tactics. The most important of these has been the creation of a second parallel track for investigating and punishing any sexual misconduct that no longer fits within Title IX.
Meanwhile, Joe Biden campaigned under a promise to roll back Trump's Title IX orders. President Biden has already assembled a task force to examine what it would take to undo the Final Rule. In the meantime, the Office of Civil Rights in his Department of Education has taken two significant steps of its own in regards to Title IX.
- First, in June 2021, the OCR extended Title IX protections from discrimination and harassment to transgender students.
- Then, in July 2021, the OCR issued what it called a “Questions and Answers” document. On the surface, this document was intended to clarify issues raised by Trump's Final Rule. However, its actual purpose was to point out loopholes in the Final Rule, places where schools might reasonably get away with reasserting their own, previous policies. So, for example, the OCR advises schools that even though they must allow students' attorneys to question witnesses, they can insist all questions be cleared through a Hearing Officer before they are asked.
The Current Title IX Process
It is impossible to say with certainty what may happen in the near future with regards to Title IX. For now, though, Trump's Final Rule has created something like a standardized process for Title IX investigations and hearings.
- Students have the right to select an advisor to help them with their case. This advisor can be an attorney.
- Every school must have a Title IX Coordinator, and all Title IX cases originate in this office. A school can require its faculty and staff to report incidents of sexual misconduct. However, only two people can sign an official complaint: a complainant or the Title IX Coordinator.
- Once an official complaint has been filed, the school can offer services to the complainant, including medical care, counseling, and help with classes. However, the school must offer the same services to the respondent.
- If a Title IX Coordinator decides to pursue a case, they then appoint an investigator. There are no rules requiring an investigator have a background in law enforcement or even any specific training in Title IX cases.
- The Title IX investigator has a set time—30 days, 45 days, 60 days—to meet separately with both parties, collect any physical evidence, and interview witnesses.
- At the end of the investigation, the investigator completes a written summary of their findings. Both sides have an opportunity to respond to this summary. Then, it is submitted to the Title IX Coordinator.
- The Title IX Coordinator sets a hearing date and appoints a Hearing Officer to oversee the proceedings. This Hearing Officer may be solely responsible for deciding the case, but more often, schools use a three-person panel drawn from a pool of faculty, administrators, and students who have been given training in sexual misconduct cases.
- The hearing must be conducted live, though either side may request that it take place via closed-circuit video.
- The decision-maker(s) must hear the case in its entirety. That is, they may not rely solely on the investigative report in reaching their decision. They must also disregard testimony from any witnesses who are unwilling or unable to attend the hearing.
- Both sides have the right to cross-examine any witnesses, including the other party. Questions must be asked by the student's advisor. If a student does not have an advisor, the school must appoint one. The school can require that advisors submit questions to the Hearing Officer before they are asked. Certain questions, such as those about a complainant's or a respondent's sexual history, are prohibited.
- The decision-maker(s) typically use the “Preponderance of Evidence” standard when deciding a case. This standard, less strict than “Beyond a Reasonable Doubt,” only requires that decision-maker(s) believe the respondent is “more likely than not” to have committed the offense. Attorneys often refer to this as the “50 percent plus a feather” standard.
- If the decision-maker(s) finds the respondent responsible, they determine the appropriate sanction. Otherwise, the case is dismissed.
- Either side may appeal the findings of the hearing to the university president or provost. However, appeals can only be filed if new evidence should arise or if one of the parties can show that some irregularity occurred during the investigation and/or hearing.
- Both sides are also entitled to appeal just the sanction that has been imposed. That is, a respondent can accept responsibility for the violation but argue that the penalty is too harsh.
Title IX does not mandate how a school may punish someone found responsible for sexual misconduct. In the era of Me Too, that usually means schools will err on the side of being too harsh rather than too lenient. No school wants to be labeled as a haven for offenders.
Typically, suspension is the minimum penalty a school will assign. More often, schools expel students who are found responsible. Many universities also now also issue a transcript notation that describes the exact nature of the offense. This can prevent students from enrolling anywhere else, effectively ending their academic careers. Of course, the end of an academic career can mean a person will also struggle to find a job, to rise in that job, and to make the same money as their college-educated colleagues.
You've Been Accused: Now What?
If you're reading this guide not simply because you want more information about Title IX but because you have actually been accused of sexual misconduct, you may be feeling particularly stressed by what you've read. Title IX is a complicated law with a complicated history, it doesn't always treat the accused fairly, and it can lead to serious consequences.
You can successfully defend yourself. A Title IX defense is no easy matter, but with help from a qualified Title IX attorney, you can clear your name and reclaim your life.
This advice can help:
- Before you do anything else, take the time to contact an attorney. Don't settle for a family attorney or someone local. Find someone with knowledge of Title IX and experience dealing with student justice.
- Take the time now, while it is all still fresh in your mind, to write down everything you remember about the incident in question. Be as detailed as possible, and don't leave anything out just because you think it might tend to make you look guilty. Often, an experienced attorney will know how to turn a piece of evidence you think is damaging or a witness you think is prejudiced against you to your advantage.
- Do not contact the complainant. Your accuser may very well be someone you know, maybe even someone you had a close relationship with. You feel betrayed, and you're sure that if you could just sit down and talk with them, you could work everything out. Unfortunately, it is too late for that. The complainant has strong feelings about you, or else they wouldn't have made this accusation. Just as important, even if the complainant was willing to withdraw their complaint, the school can still go ahead with the investigation and hearing. The only thing contacting the complainant will do is make you look more guilty. In all likelihood, your university has already issued a no-contact order between the two of you. Even if they haven't, though, don't contact them.
- Don't talk to investigators or school officials with your attorney. Some schools prohibit advisors from speaking for their clients at investigative meetings. Your lawyer should still be present to advise you about what to say.
- Take care of yourself. You cannot help your defense if you are stressed. Do everything you can to keep your life as normal as possible. Go to classes. Exercise regularly. While you want to limit the number of people who know about your situation, it can be important to find one or two people you can trust to talk to about your feelings. You might also consider professional counseling to help you deal with your emotions.
Attorney Joseph D. Lento Knows Title IX
A Title IX investigation can feel like an insurmountable barrier. You need someone who can help you cut it down to size. You need Joseph D. Lento.
Attorney Joseph D. Lento built his law career on Title IX cases. He deals with college and university administrators every single day, helping to get his student clients the justice they deserve. He's defended literally hundreds of students just like you from all kinds of sexual misconduct charges. He knows the law, and he knows how schools operate. Whether you're trying to prove your innocence or looking to make the best possible deal, Joseph D. Lento is ready to help.
If you or your child has been accused of a Title IX violation, don't wait to see what will happen next. The school is already building its case. It's time to build your defense. Contact the Lento Law Firm today at 888-555-3686 or use our automated online form.
The following links provide information regarding the Title IX disciplinary process in general: