We can all agree that high schools have an obligation to protect our children from harm. We expect students will be safe whether they are in the classroom, the lunchroom, or the parking lot. No one, for instance, would want a school to look the other way in a sexual misconduct case. Victims should have the right to justice.
Schools have another obligation, though: To protect the rights of the accused. In the United States, we hold sacred the principle that all are “innocent until proven guilty.” We believe defendants deserve a fair trial. We insist people should only be punished when they are found “guilty beyond a reasonable doubt.” No one should have to give up these rights just because they are a student.
What happens, though, when these two sets of “obligations” are put at odds? How does a high school go about choosing sides when two students are on opposing sides?
The answers can be found in Title IX. Current Title IX guidelines describe exactly what should happen in a sexual misconduct case. They outline the procedures a school should follow; they define a school's obligations.
Title IX isn't perfect. It doesn't always treat accused students as fairly as it might. The more you know about Title IX, though, the better chance you stand of making sure your own child is protected. Make sure you know what obligations the school has to protect your student's due process rights.
A Brief History of Title IX
The obligations schools face under Title IX aren't the same they faced when the legislation was originally passed in 1972. Fifty years ago, schools could sometimes be hostile environments for young women. Boys and girls weren't always allowed to study the same subjects. Teachers sometimes gave boys special treatment in the classroom. Congress designed Title IX to change all of that. The law specifically says,
“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.”
Most of us would agree that such a law was necessary fifty years ago. It was an important step in the march towards equal rights for women in this country. Furthermore, it did exactly what it was designed to do. Today, for instance, there are more women in college than men. That's a direct result of Title IX.
Over time, though, schools' obligations under Title IX shifted. Little by little, the executive branch and the courts came to believe that schools shouldn't just refrain from discriminating against women; they should make sure their students didn't discriminate against women either. In fact, under Title IX, the government decided to withhold federal funding from any school that didn't aggressively go after students accused of any form of sexual misconduct, from simple verbal harassment to rape.
These new obligations, though, were problematic. High schools are designed for learning. They just aren't set up to deal with complex matters of criminal justice. English teachers, it turns out, know a lot about The Great Gatsby but very little about Constitutional law.
Recognizing this fact, the government stepped in and did what it could to reduce schools' burdens under Title IX. For example, the government decided schools weren't required to hold hearings into allegations; they didn't have to presume accused students were innocent until proven guilty; they didn't have to let lawyers get involved.
As often happens when it comes to government, solving one problem simply created new ones. In this case, the result was that accused students were denied many of their fundamental due process rights under the Constitution. It turns out much of the complicated rules of courtrooms are there to protect defendants and getting rid of those rules puts defendants at a significant disadvantage. Essentially, under Title IX, students could be suspended or even expelled for sexual misconduct without ever having the opportunity to defend themselves.
By the 2010s, schools were satisfying their obligations to protect accusers but failing miserably at their obligations to protect the accused.
Important Changes to Title IX
Politics—and the law—sometimes make strange bedfellows. Defendants' rights are usually a liberal cause. Yet, it was the Trump administration, under the direction of education secretary Betsy DeVos, that finally stepped in and tried to restore some balance to the Title IX justice system. In 2020, the Department of Education issued what it called the Final Rule, a set of guidelines that were supposed to dictate how schools could conduct Title IX investigations. These went into effect in August, with the start of the fall semester.
Among the changes, the administration:
- Limited school jurisdictions in Title IX cases
- Narrowed the definition of “discrimination” and “harassment”
- Gave some specific rights to the accused
All of these changes tended to favor respondents over claimants. While Title IX remains imperfect, the Final Rule did help to remind schools of their obligations to the accused.
Title IX at Work
In specific, concrete terms, then, what are a school's obligations under Title IX? What processes must schools follow, and what rules must they obey?
First, Title IX mandates that all school districts must have at least one Title IX Coordinator. It is this official's responsibility to oversee all matters related to sexual misconduct.
All school personnel—teachers, administrators, coaches, staff—are required by law to report any Title IX violations. However, a report is only a first step and may not necessarily lead to a full investigation. Only a complainant or the Title IX Coordinator has the power to sign a formal complaint and initiate the judicial process.
As soon as a formal complaint is filed, the Title IX coordinator must contact both the complainant and the respondent to let them know what the process will be like and to apprise them of their rights under Title IX:
- Respondents have the right to be presumed innocent, though this does not mean schools should assume accusers are lying.
- Respondents must be treated equally to claimants in all matters.
- Claimants and respondents are entitled to support services, including medical care and counseling. Schools may provide other accommodations such as time off from classes or tutoring help, but these must be available to both parties.
- Minors must be accompanied by a guardian during all questioning.
- Both sides have the right to appoint an advisor to help them with the case. These advisors may be attorneys.
- Both sides have the right to provide evidence and to make investigators aware of any potential witnesses.
Next, the Title IX Coordinator appoints an investigator to look into the facts of the case. This person interviews both parties. In addition, they collect any physical evidence and talk with any relevant witnesses. Importantly, an investigator's function is to gather materials and information, not to draw conclusions about those materials.
Schools must have a set policy regarding how long investigations may last—45 days, for instance, or 60 days. At the conclusion of this time, the investigator submits a written summary of their findings. Both sides have the right to raise questions about this document and request revisions before it is finally presented to the Title IX Coordinator.
The Coordinator next appoints a “decision-maker” in the case, someone to judge the facts and draw conclusions. In simplest terms, this person might be thought of as the “judge.” The decision-maker relies on the investigative report but typically solicits additional material. They may, for example, meet extensively with both sides of the case before drawing a final conclusion.
High schools are not required to hold a formal hearing in K-12 Title IX cases. Many do, however, maintain such proceedings where respondents have an obvious opportunity to defend themselves. In such cases, advisors speak directly for the respondent, asking questions, presenting evidence, and raising objections.
In addition, decision-makers do not use the standard we normally associate with actual courtrooms: “guilty beyond a reasonable doubt.” Instead, they use a much more relaxed standard known as the “preponderance of evidence.” This standard only requires decision-makers believe an incident is “more likely than not” to have happened in order to find respondents responsible. In other words, they don't have to be 100 percent certain of their decisions.
If the decision-maker determines the student is responsible for a Title IX violation, they will also recommend a sanction. Penalties in these cases vary. Most school policies suggest that punishments can include anything from verbal warnings and mandated counseling to suspension. However, the penalty in most sexual misconduct cases is expulsion.
Finally, Title IX provides one last check on a school's authority: both sides in the case have the right to appeal a decision maker's findings. This can only happen under certain specific conditions, though:
- The discovery of new evidence
- The demonstration of bias or procedural mistakes
Both sides may also request an appeal of the sanctions. That is, a respondent or complainant may accept the decision maker's judgment as to responsibility but argue that the punishment doesn't fit the crime.
A high school isn't a court of law, and Title IX does not require that schools give accused students the same rights they could expect in a courtroom. Still, courts have begun to recognize over the last decade that students face serious penalties in these cases, and they deserve to be given due process. More and more judges have agreed to hear federal lawsuits brought by students who weren't afforded their Constitutional rights, and more and more have sided with these students. Outcomes, of course, depend on the specifics of a suit, but victory can mean overturning the “responsible” verdict and restoring your child's educational future.
Attorney Joseph D. Lento Knows Title IX
The Trump administration's Final Rule created a clear process for deciding responsibility in Title IX cases, and it mandated that schools must respect the rights of the accused in new ways. However, it didn't address the fact that most school districts don't have the resources to make sure coordinators, investigators, decision-makers, and appeals officers follow the law. It didn't, for example, say that schools must retain a Title IX attorney to see that guidelines are followed, and justice is done. It didn't say that school officials who decide Title IX cases must receive some basic training in legal procedure. That means, in practice, most schools will make mistakes. In fact, most schools make a lot of mistakes.
How do you keep this from happening? More importantly, how do you keep those mistakes from damaging your child's future? The answer is to make sure that you have someone on your side who you know is qualified and experienced in Title IX cases. A Title IX attorney can stand with your family every step of the way and look after your rights. They can point out when a school district seems to be doing something wrong, and in worst-case scenarios, can keep a record of these mistakes to use in a civil suit.
Attorney Joseph D. Lento built the Lento Law Firm on defending the accused in Title IX cases nationwide. He deals with high school administrators every single day, helping to get his student clients the justice they deserve. He's defended literally hundreds of students across the United States just like your child from all kinds of sexual misconduct charges. He knows the law, and he knows how high schools operate. He's smart, he's experienced, and he's empathetic to your situation. Whether you're trying to prove your child's innocence or looking to make the best possible deal, attorney 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.