Types of Title IX Cases

Title IX wasn't an especially complex or controversial law when it was passed in 1972. It is now.

If your child has been charged by their high school with a Title IX offense, your life will probably get very complicated very quickly. The procedures in these cases can be difficult to navigate. School investigations and hearings don't work the way police investigations and court proceedings do. The law is subtle, and while it offers important protections for your child's rights, it isn't always easy to know how to make sure these protections are enforced.

Perhaps the most troubling aspect of the law, though, is the fact that what qualifies as a violation continues to change year by year. That can make it difficult even to know where to begin defending your child.

Here, we offer a basic introduction to the various types of Title IX offenses your child may be charged with. It is important to understand, though, that the law remains in a constant state of flux, and how it is enforced is often a matter of a school's interpretation. As a result, you can't expect to defend your child all on your own. You're going to need the help of a qualified Title IX attorney, someone who can help guide you through the entire process, someone to lead the fight to protect your family's rights, someone like Joseph D. Lento.

What Is Title IX?

Title IX is a federal law passed by the US Congress in 1972 and originally intended to prohibit schools from discriminating against their female students. Here's what the law itself 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.

Again, the law seems pretty straightforward. Few of us would disagree with the idea that female students deserve the same rights and advantages as male students.

Today, however, the law isn't much used to stop schools from discriminating against their students. Instead, its primary use is to investigate and adjudicate allegations of student sexual misconduct. In other words, the very definition of a Title IX offense has changed. Title IX isn't just about simple discrimination anymore, and it doesn't just apply to a school's actions. It applies to anyone associated with the school, including students.

A Brief History of Title IX

What exactly caused this change in how the law is used, and how has this change affected what constitutes a Title IX offense? In fact, two things happened, almost simultaneously:

• First, the nature of a school's responsibility under Title IX changed. The original intent of the law was to provide gender equality in education, to prevent schools from doing things like judging girls by different standards than boys or banning girls from studying particular subjects.
• The fact is, most schools quickly fell in line with this mandate, especially since refusing to do so risked losing federal financial support. Once this problem had been solved, the government went looking for new ways to apply the law. They found it by modifying schools' responsibility. Specifically, schools weren't asked merely to “refrain” from discriminating against women but to “protect” women from discrimination. That new mandate meant they didn't just have to police themselves; they also had to police their students.
• Second, the government slowly broadened the definition of “discrimination.” In everyday life, most of us think of “discrimination” as prejudicial or unequal treatment of people who belong to different groups. When it comes to Title IX, the courts have taken it to mean something slightly different. Basically, discrimination in relation to title IX now means any act that arises as a result of a person's gender and that could potentially interfere with that person's ability to get an equal education. Verbal harassment applies. So does stalking, assault, even rape.

Today, then, Title IX violations can be many different things, from body shaming someone on an online course page, to partner violence, to date rape.

In fact, the law's usage continues to evolve. The Obama administration, for example, treated speech as a Title IX violation if a person in the alleged victim's position might reasonably feel that the speech created a hostile environment. The Trump administration, in contrast, significantly limited the definition of verbal harassment. The Biden administration, of course, has its own plans for Title IX. Already it has extended Title IX protections specifically to transgender students, creating a new category of offense.

A Guide to the Important Title IX Violations

As might be clear at this point, the real trick to understanding Title IX is in figuring out what terms like “discrimination” really mean. In fact, many of the most important documents in the evolution of Title IX have been titled “Notice of Interpretation.” So, what are the various types of offenses, and how is each one defined?

• Harassment: The word “harassment” offers another good example of how much interpretation can impact enforcement. During the Obama administration, harassment included any verbal language that created a hostile environment. Current Title IX rules, however, define Title IX offenses as “unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies a person equal educational access.” The use of the word “and” here, in particular, creates a high bar for proving an action can be a violation of the law. If an action must meet all these criteria in order to be a Title IX offense, it is hard to see how any but the most serious kinds of verbal harassment might qualify. While it is impossible to say definitively what a school may or may not decide constitutes verbal harassment, certain behaviors are generally accepted to fit the current definition:
• Unwelcome sexual advances: Again, to be considered a Title IX violation, the advances must be “severe, pervasive, and objectively offensive.” Even so, aggressive sexual language can be seen as an offense.
• Bullying: Verbal harassment isn't always about trying to obtain sex. Negative comments about a person that are based on the person's gender or sex can also be Title IX violations.
• Quid pro quo harassment: Another important category of verbal harassment under Title IX involves offering something of value in exchange for sexual favors.
• Stalking: As with “harassment,” current Title IX guidelines limit what can be defined as “stalking.” According to the Department of Justice, stalking is “a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others or suffer substantial emotional distress.” A Title IX Investigator or Decision Maker must be convinced that all of these conditions have been met in order to find a student “responsible” for violating Title IX.
• Sexual assault, date rape, and rape: Any type of physically violent action that is sexually motivated is virtually always treated as a Title IX violation. Often, in these kinds of cases, the central issue is consent. That is, did the claimant express affirmative consent, and/ or was the respondent capable in the moment of distinguishing whether or not they had affirmative consent.
• Dating violence: Assault does not have to be sexually motivated to be considered a Title IX offense. Many cases involve simple physical abuse. If that abuse is related to the alleged victim's sex or gender, as in the case of a romantic relationship, it may qualify as a Title IX offense.

The Title IX Process

Whatever the specific nature of the allegation, Title IX guidelines dictate how schools should respond. That is, all cases typically unfold in the same way.

• Every school district must have a designated Title IX Coordinator who deals with all Title IX accusations. Accusations may originate with a complainant, but under the law, all district employees are required to report knowledge of any sexual misconduct.
• Once the Coordinator has signed an official Title IX complaint, they must provide the respondent with written notice of the accusation. That notice should include the name of the accuser as well as details about the nature of the alleged offense. In addition, it should apprise the student of their rights, including the right to be presumed “not responsible” until proven responsible and the right to appoint an advisor, who may be an attorney.
• Next, the Coordinator appoints an Investigator to collect information about the allegation. This person meets with both parties, gathers any physical evidence connected to the incident, and interviews witnesses.
• At the conclusion of the investigation, the Investigator creates a written report summarizing their findings. Both sides have an opportunity to respond to this report and suggest revisions before it is forwarded back to the Title IX Coordinator.
• The Coordinator then has two options. They may appoint a Decision Maker to review the investigative report and determine the respondent's responsibility. Alternatively, they may schedule a live hearing at which both sides can present their case. Many high schools do provide for a hearing, but under Title IX, they are not required to do so.
• In either type of case, respondents have the right to submit evidence, to draw the decision maker's attention to potential witnesses, and to submit questions for the other party and all witnesses.
• Decision Makers are ultimately responsible for deciding whether the respondent is responsible or not responsible. In making this decision, they typically use what is known as the “preponderance of evidence” standard. Less strict than the “beyond a reasonable doubt” standard, “preponderance of evidence” requires only that the Decision Maker believes a violation is “more likely than not” to have occurred in order to find a respondent responsible.
• Finally, Title IX gives both sides the right to appeal the Decision Maker's decision. However, there is a time limit on making such an appeal, and an appeal can only be filed for very specific reasons, including the discovery of new evidence or the demonstration of clear bias on the part of a Title IX official.

Title IX does not dictate how a school district may punish a student who is found responsible for sexual misconduct. Most district policies list a variety of different punishments for student offenses. These might include anything from a verbal warning to mandated counseling. However, in Title IX cases, suspension is usually the minimum penalty. In fact, in most cases, responsible students are expelled.

Call Attorney Joseph D. Lento for Title IX and Sexual Misconduct Help

While the processes your school uses to investigate the Title IX allegation against your child will always be the same no matter what type of offense your child is charged with, the strategy for defending your child can change radically depending on the specific nature of the allegation. That's one of the most important reasons why you need an experienced attorney by your side as you fight the charges. A Title IX lawyer understands the law, and they're experienced with disciplinary procedures. Most importantly, though, they know how to tailor a defense to their client's particular circumstances.

Joseph D. Lento is a highly-qualified, experienced Title IX attorney. He built his practice on defending Title IX clients. He's helped hundreds of families just like yours across the United States respond to all kinds of sexual misconduct allegations.

Attorney Joseph D. Lento knows the law. He understands Title IX, its history, and its politics. He also knows how K-12 schools operate. He spends everyday meeting with families, talking with school administrators, and helping the two sides reach fair solutions. Whether you're looking to prove your child's innocence or you're trying to negotiate a fair settlement that will preserve their educational career, Joseph D. Lento will fight hard to get you the best possible outcome for your case.

If your child has been accused of Title IX sexual misconduct, don't wait. The school is already preparing its case. It's time to start preparing yours. Contact the Lento Law Firm today at 888-555-3686 or use our automated online form.