The U.S. Department of Education implemented Title IX in 1972, which prohibited sexually-based discrimination in the educational system. All academic institutions must remain compliant; otherwise, they may risk losing eligibility for federal education funding. The provisions apply to all those associated with the institution, including students, faculty, and staff.
Title IX prohibits discrimination based on a person's gender or sexual identity and extends to the admissions process, benefit eligibility, scholarships, athletic participation, and more. The overall goal is to ensure that schools do not obstruct, deny, or discourage people from accessing, participating, or engaging in any activities based on sex. Each school must designate a Title IX Coordinator that is responsible for the development of processes, procedures, training, policy dissemination, investigations, and other essential areas. Prohibited acts according to recent federal guidance include:
- Sexual harassment may be verbal or non-verbal and may include appeals for sexual favors or unwelcome advances
- Acts of rape, coercion, or other forms of sexual violence
- Domestic violence, dating violence, stalking, and more
- Acts of intimidation or those that otherwise create a hostile environment
Complaint Reporting and Investigations
The Title IX Coordinator must make information available in a reasonably accessible manner regarding how a complaint may be made, which potentially is completed at the campus office, via phone, web submission, etc. Upon receipt, the administration initiates an investigation to assess the allegations. Schools are permitted to develop procedures that are best suited for the institution; however, federal guidelines emphasize that the process be prompt, fair, and equitable.
Accused parties (respondents) have a right to promptly be made aware of the accusations and evidence. They are afforded sufficient opportunity to answer the allegations, present evidence, and may be accompanied by an advisor for assistance and support. It is strongly encouraged that a seasoned attorney who is well-versed in this realm of practice be retained to function in this capacity. S
Some institutions have informal options for resolution that may be employed in cases involving less serious allegations (when facing Title IX accusations, however, all allegations are serious with potential short and long term consequences). In addition, and unfortunately for respondents, informal resolution options must be agreed upon by both parties (and also the school), and due to the adversarial nature of Title IX sexual misconduct cases, it is rare for an accuser (the complainant) to be agreeable to such an outcome.
In the vast majority of cases, schools will invoke formal proceedings. Some schools summon the parties to hearings, others make determinations regarding responsibility based solely upon the investigation, and others use a hybrid approach. Those who violate Title IX may face sanctions including suspension or dismissal from the school. If found responsible for a Title IX charge, sanctions are most often severe regrettably.
Common Title IX Charges Students and Others in Academia May Face
Different colleges and universities use different terminology for what will constitute a violation under Title IX. Although "sexual harassment" and/or "sexual misconduct" can in a sense be considered umbrella terms, schools will often have specific charges which will apply when a student or other party is accused of a Title IX violation. Schools also do not limit themselves to charging one or two violations. When a student is accused of sexual misconduct, the student will often face a host of charges.
Students and others in academia may face charges such as:
- Bully Behavior
- Dating Violence
- Derogatory or Sexist Remarks
- Electronic Communications Policy Violations
- Gender-Based Bullying
- Gender Discrimination
- Non-Consensual Sex
- Offensive Touching
- Physical and/or Aggressive Sexual Advances
- Sexual Assault, Battery, or Coercion
- Sexually Suggestive Jokes, Catcalls, or Innuendos
Just as there are common Title IX charges students may face, there are common themes in Title IX cases. Sexual misconduct and sexual assault is of course unacceptable under any circumstance, but as egregious as it is to falsely accuse someone of wrongdoing under Title IX, it happens on a regular basis at schools across the nation regrettably.
For example, did the complainant claim that he/she drank too much, was incapacitated, and was unable to consent to sex or sexual activity? Is the reason for the claim actually caused by ulterior motives? For example, does the complainant have a boyfriend or girlfriend? Did the complainant make the conscious decision to cheat on their boyfriend and girlfriend? Motivated by concern that the boyfriend or girlfriend will find out, does the complainant accuse the respondent of taking advantage of him or her?
Did the complainant struggle academically? Does the complainant believe that by making a false accusation against someone (be it another student or a professor for example) and if the accused party is found responsible, the school will grant the struggling complainant consideration with regards to his/her academic requirements?
Is the student athlete not getting played as much as he or she believes is fair? Can accusing the coach of doing something improper such as sexual harassment or inappropriate sexual contact allow the school to suspend the coach pending the outcome of the Title IX case?
Having handled countless Title IX cases at colleges and university across the United States, attorney Joseph D. Lento has seen every possible scenario which can lead to Title IX allegations. Just as there are common charges and common themes in Title IX cases, there are also other fundamental themes and issues which can arise. Some of these themes and issues follow.
The term voyeurism describes the “practice of obtaining sexual gratification from observing others.” It is committed by an individual that derives pleasure from viewing activity that is often considered private. Voyeurism is often classified as a form of sexual exploitation where the perpetrator takes advantage of someone.
Examples may include allowing others to view sexual activity without consent or invasions of privacy using discreet vantage points. Many acts of voyeurism on campuses recently have also resulted in criminal charges.
Video & Photo-Taking
The vast majority of those in all college or university communities have smartphones that are capable of taking photographs or creating video footage. Acts such as capturing or disseminating sexually-oriented photos, audio, or video of someone without consent is a form of sexual misconduct. Another example is posting explicit photos in public or common educational, work, or residential environments that create a hostile environment for others.
Dozens of forums now exist that are considered social media, including Facebook, Instagram, and Twitter. These platforms have shown to be tools capable of harassing or abusing others and thus potentially violating Title IX guidelines. One emerging form of sexual harassment is cyber abuse, which can involve bullying, types of sexual extortion, stalking, and “revenge porn.”
Cyber abuse has caused victims to stop coming to classes, avoid social activities, suffer from depression, and more. Are schools obligated to take action under Title IX for acts of harassment, discrimination, or abuse that occur on social media sites? Schools may have an obligation to act when most of the following circumstances exist:
- When a responsible party within the institution is aware of the abuse
- The acts are serious enough to compromise a student's education or willingness to engage in school activities
- The abuse is believed to be impeding the victim's access to educational opportunities or benefits
Schools should address concerns that create a hostile environment. They also have to notify the complainant of any measures taken under Title IX.
Many different forms of electronic communication exist today. Examples include e-mail, messaging, video chat, and social media networks. Electronic communication may be very useful as evidence in Title IX investigations. For example, an email or text message is authentic, as the identity of the sender and time the communication occurred are likely to be verifiable.
According to the Gay & Lesbian Alliance Against Defamation (GLAAD), the term transgender refers to an individual whose self-identifies as being a different gender than of which they were born. Many transgender individuals attempt to transform their bodies to appear as the gender they self-identify with. The acronym LGBTQ is commonly used to identify the lesbian, gay, bisexual, transgender, and queer (or questioning) community.
Federal guidelines from the Obama Administration supported the concept that gender was “a choice” based on self-identification. Under the current administration, it has been reconsidered to define gender in biological terms.
There has been some debate involving transgender students and Title IX. In Oregon, a group of students filed a suit alleging their rights were violated when the school allowed transgender students to use bathrooms and locker rooms that did not correspond to their biological gender. A Ninth Circuit panel disagreed, finding that the school did not violate Title IX; however, further proceedings are underway.
In U.S. District Court in Connecticut case recently, several female student-athletes sued the Connecticut Interscholastic Athletic Conference for allowing transgender athletes that were born as males to compete in female athletics. The suit alleged that this allowed the transgender athletes an “unfair physiological advantage.” A judge sided with the plaintiffs, stating that this exceeds reasonable accommodations and infringed on “other people's rights.”
Importance of Retaining a Lawyer as a Title IX Advisor
The federal Title IX guidelines continue to evolve in response to social reform, emerging technology, campus-safety data, transitions to new federal administrations, and more. Based on this volatility, student respondents should speak with representation that is abreast of current guidelines. An experienced attorney-advisor will ensure you are sufficiently prepared to deliver statements, capable of effectively responding to questions, and more.
Advisory Attorney Provide Representation for Students in Title IX Actions
Have you been accused of sexual misconduct at a college or university? Students facing campus disciplinary matters related to Title IX should recognize that harsh sanctions such as suspension or expulsion may be imposed. The Lento Law Firm will work on your behalf toward a positive outcome. Please feel free to contact the office today at (888) 535-3686.