If you or someone you know has been accused of a Title IX violation, you've got questions.
- What exactly is Title IX?
- What does it actually say?
- Where did it come from?
- How is it used?
- What does it mean for me or my loved one?
This guide provides concrete answers to these questions and more. It explores the history of the law, describes how the law is implemented, and details what kinds of disciplinary processes and sanctions colleges and universities typically assign to those who violate Title IX. In addition, it explores crucial issues such as why students make Title IX allegations, and it offers suggestions on how to prepare yourself for an investigation and the disciplinary process that follows should you ever be accused.
Whether you've been accused yourself, you're concerned about a loved one facing such allegations, or you simply want to know more, you'll find this guide offers a valuable starting point for better understanding the complexities of Title IX.
- Title IX: An Overview
- A Brief History of Title IX
- Where do Title IX Allegations Come From?
- The Title IX Process
- Title IX Penalties
- Your Rights Under Title IX
- The Current Context for Title IX
- Beyond Title IX
- What to Do if You're Accused
- Finding the Right Title IX Attorney
- Title IX: The Bottom Line
Title IX: An Overview
It can be challenging to get a handle on Title IX. The law has been around for some fifty years. It was complicated when it was first passed, and it has gone through a great deal of change over time.
Let's start with the basics. What is Title IX?
Title IX is a federal law passed by Congress in 1972 and is still in use today. Here's what it 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.”
Title IX isn't a law in and of itself. Instead, it is one of several amendments to another law, the Higher Education Act of 1965. These several amendments are collectively known as the “Education Amendments of 1972.” However, Title IX is by far the most well-known of these amendments, and it has undoubtedly had the most impact.
In simplest terms, Title IX guarantees schools treat all their students equally, regardless of their sex. As an enforcement mechanism, a means of ensuring all schools comply, the law also promises to withhold federal funds from any institutions that refuse to cooperate. In essence, the law demands schools implement strict rules barring discrimination and harassment.
A Closer Look
More specifically, though, what equal rights does Title IX guarantee?
The language in Title IX specifically prohibits the use of sex as the basis of “exclusion” or the “denial” of any “benefits.” Notably, the wording makes clear that the law doesn't just apply to education-centered activities but to any “activity receiving Federal funds.” These several phrases, in particular, have been used to justify parity between men's and women's sports programs. Nowhere does Title IX directly address athletics, but the wording makes clear that women should have equal opportunities and the same “benefits” as men of any “activity” a school offers. Those activities obviously include sports.
More broadly, though, the law prohibits “discrimination” of any type on the basis of sex. Title IX doesn't define discrimination in concrete terms, and over the years, the word has become a prime subject of contention. Ultimately, “discrimination” has been taken to include a wide variety of activities and behaviors, essentially any action that might interfere in any way with a woman's ability to obtain the same education as a man. This includes such obvious examples as unequal treatment in the classroom or denying women the right to apply for the same scholarships as men. However, it has also come to include less obvious, though far more serious, crimes like relationship violence and rape.
As time has passed, the law has grown to include several “guidelines” written to help further explain how to implement Title IX. Current law, for example, provides a list of “specific prohibitions.” These include:
- Treating one person differently than another when determining aid, benefits, or services
- Providing different aid, benefits, or services on the basis of sex
- Denying any person aid, benefits, or services on the basis of sex
- Subjecting anyone to different rules of “behavior, sanctions, or other treatment” on the basis of sex
- Applying any rules about housing differently on the basis of sex
- Helping any “agency, organization, or person” practice sexual discrimination
- Otherwise interfering in any person's “right, privilege, advantage, or opportunity”
Problems of Definition
Of these prohibitions, it is the last that is the most problematic. As with the word “discrimination,” this prohibition leaves a great deal open to interpretation. What, for instance, constitutes “interference” in someone's rights and opportunities? Does interference mean “direct interference,” as in someone who refuses to let a woman enroll in a class simply because she is a woman? Or can it be interpreted as “indifference,” like a professor who knows a female student is being harassed but fails to act?
Here again, over the last fifty years, this wording has come to be used in its broadest possible sense. First, it has been taken to refer not just to administrative or procedural discrimination. Instead, it has been used to mean any action that “interferes” with someone's education, including sexual assault. The assumption here is that an assault—regarded as a direct result of a victim's sex—prevents a woman from having equal access to the benefits of education.
Likewise, “interfere” has also been taken to mean not just active interference but also the failure to act on information about sexual discrimination and harassment and even the failure to be proactive in preventing such behaviors. Schools aren't just accountable for their own actions. They are required to respond to their students' behaviors and intervene when they discover any incidents of discrimination. Further, they are expected to prevent these behaviors before they occur.
Ultimately, then, Title IX has evolved so that it doesn't just address simple “discrimination” as that term is usually defined: “unjust or prejudicial treatment of people.” Instead, Title IX has become the primary means schools deal with all instances of sexual misconduct on campus, from hate speech to dating violence. Indeed, the government has insisted schools address these crimes even though they may not always be best-equipped to do so.
In recent years, the federal government has gone further in providing schools with Title IX guidance, creating a set of strict instructions for how sexual misconduct allegations should be investigated and prosecuted. These instructions help to standardize the law's implementation across American colleges and universities. However, because they aren't part of the original law, these guidelines are also subject to change. Since 2000, each presidential administration has chosen to implement these guidelines in a new way, according to the administration's own political and ideological goals. Too often, the result has been chaos and confusion.
In many ways, then, Title IX is a simple, straightforward law that ensures women are treated fairly at educational institutions. Yet, it contains within it the seeds of controversy, and over time it has sparked some of the most contentious debates in the field of education.
A Brief History of Title IX
Title IX was created to solve a very specific problem: sexual discrimination in American educational programs. Like any law, though, it has developed and evolved in the years since it was initially passed. That evolution hasn't always been an easy one. Nor is that evolution over. Even today, schools, courts, lawyers, and politicians continue to wrangle over how to apply Title IX.
A Necessary Step
The federal government had good reason to implement Title IX in 1972. College campuses weren't exactly welcoming spaces for women in the late 1960s and early 1970s. Many schools had only allowed women to enroll a decade or two before. Georgia Tech, for example, first admitted women in 1952. A few schools, such as Bowdoin, Williams, and the University of Virginia, denied women admission until as late as 1970.
To be sure colleges and universities were very different environments for both sexes than they are today. Among other differences, most schools were far more interested in the general conduct of their students. They spent a lot more time worrying over how students dressed, for instance, and making sure no one spoke above a whisper in the library. However, female students faced even greater scrutiny than men. Many schools had strict curfews for women and rules about where they could go on campus. Some schools even required that parents sign permission forms allowing their daughters to attend college.
At best, women were in the minority at most colleges and universities, and some institutions could be openly hostile towards them. Women were often prohibited from studying for certain degrees. Professors sometimes made it clear that women weren't welcome in their courses and would openly discriminate when assigning work and grading exams. Women were often subjected to more rigorous admission standards. They weren't always eligible for the same scholarships.
Few would argue, then, that some sort of reform was called for at the time. In this context, Title IX was an important and necessary step forward for women's rights. Nor could anyone deny that the law worked extraordinarily well. For example, while only 43% of college students in 1972 were female, today those numbers have reversed: women now make up 57% of all college students. In fact, far from being the havens of misogyny they once were, most schools are now among the most welcoming places for women in all of America, bastions of feminist study and liberal ideology.
The Early Days of Title IX: Arguments Over Athletics
In truth, a few people did argue with the primary intent of the law, at least in the early years. Some schools were slower to enact change than others, but society generally had begun to embrace women's rights and seemed ready to extend those rights to education.
Thus, lawmakers and judges spent most of their time focused on the specific application of the law to college athletics. Republicans, for instance, introduced a series of amendments during the 1970s that each tried to reduce Title IX's impact on the sports world. Most of these efforts focused on finding loopholes in the law. For example, Senator John Tower proposed excluding revenue-producing sports from regulation. This, of course, would mean football could go on as usual. Other members of Congress suggested exempting sports altogether on the grounds that sports weren't actually part of a school's “educational” mission. By 1984, some judges had come to agree with this conservative argument. In a landmark decision that year, Grove City v. Bell, the Supreme Court found that only those sports that received federal funding should be regulated under Title IX. The largest and most popular sports, the ones that relied on alumni and booster support, no longer needed to worry about being cut.
A New Debate: Sexual Misconduct
While the debate over sports continues to rage in some parts of the country, most of us, even the most diehard fans, have come to accept the many benefits of the post-Title IX reality. Few begrudge the talented women's teams that have sprung up and frequently provide better entertainment than men's teams.
Meanwhile, new debates have opened up, especially in the last ten to fifteen years, over a completely separate issue: how universities use Title IX to prosecute incidents of sexual misconduct. These debates revolve around several key questions:
- How much do sexual crimes have to do with education? For instance, are such crimes of a more personal nature and thus outside a school's purview?
- What is and what should be a school's liability in cases of sexual misconduct?
- Are crimes such as stalking and rape consistent with the definition of “discrimination”?
- What obligation, if any, do faculty and administration have to intervene when they have knowledge of sexual misconduct?
- Are colleges and universities equipped to handle sexual assault cases?
Questions of Presidential Authority
Hovering in the background of all these questions is a much broader issue: just how much authority does the executive branch have to interpret Title IX? As with any law, the U.S. President is ultimately responsible for administering Title IX. That would seem to give this office great latitude in deciding how to interpret it. Where is the line, though, between “interpreting” a law and “defining” it?
In recent years, presidents have come to believe they have broad authority in implementing Title IX. This point of view has some merit, given just how open some aspects of the law are to interpretation. “Discrimination,” to give just one example, can be and has been interpreted in a variety of different ways.
This perspective—the notion that the executive branch has the power to modify legal enforcement of Title IX—first gained ground under the Clinton administration. Towards the end of that administration, in 1998 and 1999, the Supreme Court issued significant decisions in the Title IX debate. In Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education, the court found that schools couldn't be held liable for sexual harassment unless they had “actual knowledge” of specific misconduct and acted with “deliberate indifference” in response to that knowledge. Those were high standards.
Before leaving office in early 2001, Clinton's Department of Education responded directly and defiantly to these decisions. The administration declared that in order to maintain their funding, all colleges and universities would not only be required to investigate obvious examples of sexual harassment, but they would also be required to “prevent, eliminate, and remedy sexual harassment.” That declaration had an important impact on how the law itself was interpreted. More significantly, it showed that the executive branch could essentially do what it liked regarding Title IX enforcement.
Ten years later, the Obama administration widened the application of Title IX yet again, issuing what became known as the “Dear Colleague” letter. Among other changes, this letter called for lowering the conviction standard in Title IX cases, from requiring “clear and convincing” evidence to requiring only a “preponderance” of evidence. In addition, the letter asserted that Title IX didn't just apply to behaviors. Any “speech” that made a member of the opposite sex uncomfortable would also be treated as a violation. This last decision was particularly controversial and sparked wide protest, especially among supporters of First Amendment rights. More importantly, though, the letter as a whole furthered the precedent of assuming that the presidents have the authority to make such changes whenever they like.
Trump Rewrites the Rules
As might be expected, given their apparent passion for disrupting the status quo and their particular dislike of Obama, the Trump administration set about reversing many of the previous administration's Title IX guidelines. Early in 2020, Betsy DeVos, the Secretary of Education under Trump, issued an entirely new set of rules for how schools should treat sexual misconduct. These rules narrowed the definition of “discrimination,” limited university jurisdiction to incidents that happen on campus, guaranteed defendants the right to a hearing, and gave both sides the right to examine and cross-examine witnesses.
Ironically, many of the same schools that had, fifty years before, protested the implementation of Title IX now chose to protest this loosening of its standards. In fact, several schools sued to prevent the new rules from going into effect. None of these suits were successful, and the revised policy officially went into effect in August 2020.
Biden Takes a Crack
More recently, the Biden administration has begun seeking ways to overturn the Trump rules, something Biden promised to do during his 2020 campaign. While it works on that goal, the administration has already declared it will extend Title IX protections to include sexual orientation and gender identity. In addition, Biden's Office of Civil Rights has issued a set of "Questions and Answers" about Title IX. This document does what it can to give schools the widest possible latitude in interpreting the new guidelines. Yet again, the overarching argument of all these moves is that presidents can interpret Title IX as they see fit.
Where Do We Go from Here?
Title IX may have been a necessary correction to a serious problem in 1972. Whether it continues to be the best way to address this problem has become an urgent question. Society itself has changed in many significant ways in the past fifty years. Even something as fundamental as how we communicate is radically different today than just two decades ago. Has the world now changed to the point where Title IX is doing more harm than good?
More significant than any other aspect of the law is how it treats defendants, those accused of committing some form of sexual misconduct. To some extent, this treatment has been a problem from the very beginning. By threatening to withhold federal funding, Title IX gave schools a clear incentive to be over-zealous in pursuing those accused of sexual misconduct. However, that problem has been exacerbated over time as the executive branch has methodically and systematically stripped one due process right after another from accused students. While the Trump administration's efforts helped remedy the problem, even those efforts didn't go far enough. And, in any event, the changes they instituted are likely to change again in the very near future.
In fact, given the complete history of Title IX up to this point, only one thing about the law is certain, and that is that nothing is certain.
Where Do Title IX Allegations Come From?
If you've been accused of sexual misconduct, one of your first questions may be, “Where did this allegation come from?” There's a good chance that the allegation was made by someone you were close to, someone you trusted, someone you may even have thought you loved. What could have happened to make this person suddenly turn on you?
Sexual misconduct is, of course, a grave offense, and that can make it even more troubling that someone would accuse you of committing it. Under Title IX, you face a grueling investigation and a hearing that will almost certainly favor the complainant. Punishments if you're found guilty can be severe. In most cases, suspension is the minimum penalty, but more likely, the school will do everything it can to expel you. Even if you win your case, if the allegation should become public knowledge, you may be forced to deal with anger and ridicule from your classmates and friends. You could wind up pilloried in the media. And when allegations wind up on the internet, they can linger there forever.
Why, then, would anyone make such an allegation unless they were certain they had been abused? The truth is, there are several reasons why people make sexual misconduct accusations. Knowing these reasons won't erase the hurt you're feeling, but it can help you better prepare to defend yourself.
One of the most common reasons why one student accuses another of sexual assault is out of simple revenge.
When you're in a relationship, it can be hard to imagine what life might be like when the relationship ends. You're both in love, you can't get enough of one another, and the world seems like a magical place.
Nothing lasts forever, though, and even relationships that seem perfect can eventually run their course. And however wonderful the relationship itself may have been, relationship endings are almost always messy. Both of your emotions are running high. You're hurt and, very likely, angry. In your mind, you begin to relive the very worst moments from your time together, and often accusations start to fly:
“You forgot my birthday last month.”
“You said terrible things about my friends.”
“You never let me pick the movie.”
In an atmosphere like this, it's easy to decide that something perfectly innocent from your past together now seems far more sinister. In some cases, one partner may even be upset enough to simply invent an accusation.
Of course, it should be said: not every Title IX case originates from a bad break-up. For example, a person might decide to take revenge because they feel rejected by someone they thought was a friend. Likewise, revenge can be a compelling motive for someone who's received a bad grade on an exam. Sexual misconduct allegations aren't just leveled against students; faculty can be accused just as easily.
The bottom line is, an accusation of sexual misconduct makes a useful tool for revenge, especially on college campuses, where the accuser can be almost certain they will be believed and taken seriously.
Another common reason why sexual misconduct accusations arise is miscommunication.
We humans aren't always great at communicating with one another. The trouble is, words can mean different things to different people. If you've ever argued over a text, you know how true this is. We misunderstand each other all the time, and we don't always take it well when it happens.
When it comes to sex, we tend to do an even worse job of saying what we mean. We get embarrassed or don't want to appear foolish, so we talk around the subject or avoid it altogether. It isn't unusual for couples to develop a physical relationship before they've ever really discussed what that relationship means or what they want from it. Obviously, that kind of silence can lead to quite serious misunderstandings.
Alcohol and drugs only exacerbate these problems. That's one reason so many sexual misconduct incidents happen at parties. The music's loud, people are yelling, and your ears are buzzing. Someone tries to tell you something over all this noise, and you simply mishear. You act on what you thought you heard, only to find that the other person had something else entirely in mind.
Miscommunication isn't an excuse to take advantage of another person. The word “No” is clear enough. Still, miscommunications are often at the root of sexual misconduct allegations.
At least one scientific study found that when it comes to sex, we sometimes don't communicate at all. According to work by O’Sullivan and Allgeier, 50% of women and 26% of men have consented to sex they didn't want. Those numbers suggest that many of us may feel regret for at least one of our past sexual encounters.
It's a small step from regret to accusation. Regret can be a powerful emotion, and it's easy to imagine how someone feeling regret might push themselves into believing they were forced into something they didn't want. Yet, the truth may be they just feel guilty or even ashamed about what happened and can't face the fact that they made the choice themselves. Regret can be even stronger if other people find out about what happened. In those cases, an accusation of sexual misconduct can sometimes serve as a justification for a poor decision.
The desire for sympathy is a natural human urge we all feel at one time or another. When other people express sympathy towards us, we feel wanted and loved, especially when we're emotionally vulnerable. Someone who's in the midst of a difficult break-up is definitely emotionally vulnerable.
We all tell stories from our own vantage point, to make ourselves look good and generate some potential sympathy. We tell our best friends all the terrible things our ex said about us, but we conveniently omit what we may have said. That's natural. However, the desire for sympathy can sometimes push a person over the line, into inventing behaviors or incidents that never happened. The person making the accusation may feel like playing the role of the victim will make them look better. Unfortunately, accusations like this can quickly take on a life of their own. A friend might decide to report what they know, for instance. Once an allegation is out there, it can be extremely difficult to take back.
Again, a similar scenario can develop outside of romantic contexts as well. A student angry at an instructor may be tempted to tell her friends that the instructor is out to get them. Once that accusation takes on a life of its own, though, it can be almost impossible to undo the damage.
Other Reasons for Accusations
There are other, less common, reasons why people make false Title IX accusations. It may seem extreme, but there are instances in which people make such allegations for financial gain. An allegation of sexual misconduct can lay important groundwork for a financial lawsuit.
In addition, there are people out there who are mentally unstable and who simply invent these sorts of accusations. They may even believe the story they're telling.
It could be that you never discover why you've been accused. The human mind works in mysterious ways, and it can invent all sorts of justifications for the things we do. What matters most is that you know the truth, and you have the power to use that truth to defend yourself.
Whatever the reason for an accusation, you should know that it's far easier to accuse than to be accused. Unfortunately, Title IX is set up to favor the complainant, and that favoritism occurs at all levels of the process.
Virtually every school offers medical help and counseling services to complainants. A school may even provide academic or financial assistance. Fair enough. What about defendants, though? Often, they are suffering trauma as well. Yet few schools consider their needs or do anything to address those needs.
Likewise, punishments are usually unbalanced. If you're found responsible for sexual misconduct, you'll likely be expelled. In fact, most schools will try to suspend you even before an investigation has begun. However, if you're acquitted of the crime, it's unlikely anything will happen to the complainant for having made a false accusation. Your reputation may be permanently tarnished, but your accuser will face no substantive punishment. They may even get more sympathy for having lost their case.
Some schools take their desire to help victims so far that they wind up violating defendants' rights in the most egregious ways. In 2018, for instance, a court discovered that the University of Mississippi had published training materials encouraging Title IX investigators to treat lies from a complainant as evidence a sexual assault actually occurred. The school actually said lies should be treated as proof.
In the end, these double standards may be the most inviting reasons to make false accusations. Accusers know that their school will protect them, that they'll face few if any negative repercussions for making their accusation. Yet, it's almost certain the accused will have their life turned completely upside down. Simply put, the risk for an accuser is low, and the rewards can be high.
The Title IX Process
Title IX guidelines are subject to frequent revision by whichever presidential administration happens to be in power at the moment, and it's difficult to say what the process may be in ten years.
What does the process look like right now, though, after Trump's rule changes and the Biden OCR's interpretation of those rules?
If you've been accused of sexual misconduct at your college or university, you may be expecting an investigation and trial as you've seen on television shows like Law and Order or CSI. Perhaps you imagine scientists working in labs to uncover the truth about the charges against you or well-groomed attorneys making passionate arguments on your behalf in stately oak-paneled rooms.
Your school will investigate you, and current Title IX rules give you the right to defend yourself at a judicial hearing. The rest, though, won't resemble much of what you know about the criminal justice system. The investigation will probably be conducted by a single member of the campus police. However, the investigator might just be a faculty member who's read through some training materials. As for your hearing, you're more likely to face a panel made up of physics professors and music majors than the proverbial sober judge. Don't be surprised, in fact, if the whole thing plays out in some dingy seminar room in the basement of the student union.
How Things Begin
Title IX dictates that every college and university have its own Title IX Compliance Officer. That officer is responsible for dealing with any Title IX complaints. Typically these officers have a staff that works with them, processing allegations, facilitating investigations, and putting together judicial panels to hear cases. The size of this staff usually depends on the size of the school itself.
Schools want to make it as easy as possible for someone to file a sexual misconduct report, so most offer students several ways to file. The University of California, Santa Cruz, for example, is among several schools that now offer an online reporting form. In addition, other members of campus—faculty, administrators, even other students—may be under an obligation to file a complaint on a victim's behalf if they know of a problem, as they are at the University of Minnesota. Wherever it originates, though, all these complaints wind up in the Title IX office.
Once the office receives a complaint, the Title IX officer or their designated representative must decide whether or not to pursue that complaint through an investigation. Keep in mind that the government mandates the school will lose its federal funding if it fails to pursue every reasonable allegation. In practice, that means schools investigate essentially every complaint they receive.
Current Title IX guidelines state that schools may offer "informal resolutions" as an option during the Title IX process. These resolutions can include mediation or restorative justice approaches, but facilitators must be well-trained in the processes. In addition, both sides must agree to participate in the resolution process, and either side may walk away from negotiations and resume the investigation and hearing process at any time. Further, schools cannot pressure students into working towards an informal resolution. Participation is strictly voluntary and the prospect of informal resolution is often determined on a case-by-case basis.
Assuming the Title IX office chooses to investigate the allegation, the Title IX officer then appoints one or more investigators to the case. Sometimes those individuals have special training, but nothing in Title IX says they need any particular qualifications. Some schools assign a member of the campus police to fill this role. Others choose someone external with investigative experience or hire a law firm. Investigators can simply be school administrators, though, or faculty members.
The investigator's first responsibility is to alert both sides that an investigation is underway. This is usually done through a formal letter. In addition, the investigator must inform both parties that they have a right to select an advisor. Notably, that advisor may be an attorney. Finally, many schools offer the parties additional services such as access to medical care and counseling. However, these are provided more often to complainants than to defendants.
The Title IX investigator's primary job is to gather evidence related to the case. This might include physical evidence such as clothing, text messages, dorm entry logs, or emails. It will also include statements from both parties about the incident and testimony from any relevant witnesses.
The law clearly states that it is the school's responsibility to collect evidence in the case rather than the complainant's or the respondent's. While this creates the impression that the investigative process is fair, what it actually means in most instances is that the investigator will work on behalf of the complainant to prove the allegation. In fact, numerous lawsuits have uncovered that investigators frequently begin their work with a clear bias in favor of the “victim.” As a result, respondents must often shoulder the entire responsibility for proving their innocence.
Most schools include some language in their Title IX policies about maintaining the confidentiality of all parties during the investigation. However, they also point out that they cannot guarantee such confidentiality. LSU’s policy is a good example:
“The University will preserve confidentiality to the extent possible and allowed by law.”
“To the extent possible” hardly inspires confidence that the school will manage to succeed. In fact, the policy goes on to list several reasons why the school might violate confidentiality, including the need to “provide a safe and non-discriminatory environment.” If a school wants to release information about the accused, they can find a justification for doing so.
Such language mirrors Title IX itself, which simultaneously encourages confidentiality but also makes clear that no school may institute a gag order of any kind. The justification for this rule is that both sides need the freedom to talk openly about what happened to collect evidence. In practice, the rule means that accusations and investigations usually become public knowledge on campus and sometimes in the larger community.
Investigators have a set amount of time to complete their work—commonly 45 or 60 days—and compile a complete investigation report. According to the law, both sides of the case have ten days to respond to that report before it is forwarded to the Title IX office to be made a "final" report. This rough guideline for a Title IX investigation is often just that, and Title IX cases often last for multiple months. In limited instances, Title IX cases at the school level can last for more than a year or even longer.
A rush to judgement is obviously not in a respondent's best interests, but an undue length of time until a case is adjudicated can also be burdensome. There must be a balancing of what is appropriate based upon the case circumstances, and your advisor will be able to best ascertain what is appropriate and can work towards a fair process while holding the school accountable if any undue burdens are placed upon you.
Although Title IX cases at the K-12 school level allow, but do not require a hearing to determine responsibility, this is not the case for Title IX cases at the higher education level. An elementary school or high school case might be decided at the end of the investigation, for example. However, under current Title IX procedure, both sides in a college or university case are entitled to a hearing.
This hearing must be "live," though either side may request that hearing be conducted via closed-circuit video. The Title IX office sets a date for the hearing and appoints one or more “decision-maker(s)” to hear the evidence. Most schools use a panel of three to five individuals drawn from a pool of faculty, administrators, and students who have been given training in the school's judicial policies.
At this hearing, the decision-makers hear the case in its entirety and consider all evidence and witness testimony before coming to a final decision. They may review the investigator's report, but Title IX guidelines supposedly prohibit them from relying solely on this document in reaching their conclusion.
At the hearing, students must make their own opening and closing statements. However, advisors represent complainants and defendants throughout the bulk of the hearing. Advisors have the right to ask questions and cross-examine each other and any witnesses in the case.
After the hearing, the decision-makers deliberate and render a final verdict on whether the respondent is “responsible” for the incident. If a single individual hears the case, they have sole power to decide the outcome. If a panel hears the case, only a majority must agree on the verdict.
If the verdict is “responsible,” these same decision-makers usually determine the appropriate penalty as well. Of course, if the verdict is “not responsible,” the case is then dismissed, though the complainant (or respondent) may appeal that decision. (Both sides have the right to appeal the decision or sanctions, but a respondent would obviously not want to appeal a decision of "not responsible" although this right remains available.)
Standards for Determining Guilt
Most of us are familiar with the standard of evidence used in American courtrooms. To be convicted, a defendant must be proven guilty “beyond a reasonable doubt.” That's a relatively high bar. It takes a great deal to eliminate all doubts from a juror's mind.
Title IX doesn't require this standard. Instead, schools may choose between two lesser standards, though they are obligated to tell both parties which one they are using before the hearing.
The first of these standards is the “Clear and Convincing” evidence standard. According to the Supreme Court (Colorado v. New Mexico, 1984), “clear and convincing” means the evidence is highly and substantially more likely to be true than untrue. In other words, decision-makers must believe the incident probably occurred as it was alleged.
The alternative standard, the one most schools apply in Title IX cases, is known as the “preponderance of evidence” standard. It is substantially weaker than the “Clear and Convincing” standard. Under “preponderance of evidence,” decision-makers must only decide if an event is “more likely than not” to have occurred.
Finally, either side of the case may appeal the hearing decision to the school's president or provost. However, appeals are generally limited to special circumstances. These include:
- New evidence
- Clear mistakes made in the Title IX procedures
- Clear demonstration of bias on the part of the Title IX office, the investigator, or the decision-maker(s)
It is unusual for the head of a university to contradict the hearing panel and usually requires extraordinary circumstances.
Always in Flux
Finally, it is worth noting that the process outlined above only reflects current Title IX procedures. Title IX is subject to frequent and rapid change. Those changes can be dramatic and can have a significant impact on the outcome of Title IX cases.
For example, during the Obama administration, respondents were not entitled to a hearing at all. Consequently, most schools didn't give them one. Following a complaint, the Title IX officer would assign an investigator to the case. That investigator was responsible for investigating the allegation, determining a student's guilt or innocence, and assigning penalties.
Even in those cases where schools did provide defendants with hearings, many schools didn't allow advisors to participate openly in the proceedings. Advisors could be present but could speak only to their clients. Further, few schools allowed defendants to ask direct questions of plaintiffs and other witnesses. All questions had to be approved by the presiding hearing officer before they could be asked, and usually, the hearing officer themselves would do the actual asking.
The truth, then, is that while the current Title IX process has many failings, worse possibilities always remain in play. The U.S. President can decide to alter the process at any moment, and far too often that means defendants lose more rights.
Title IX Penalties
The good news when it comes to Title IX penalties? Your university can't send you to jail for a sexual misconduct violation. The bad news? They can still ruin your life.
Your school handbook probably lists several possible sanctions for anyone found guilty of sexual misconduct. It may talk, for example, about removing you from campus housing. It might mention restricting your access to services like email or revoking your gym privileges. Sometimes, schools suggest they will mandate counseling for an offender or demand some form of restitution for the victim.
The fact is, the most common outcome in Title IX cases is expulsion, or suspension at an absolute minimum.
The Law on Penalties
Title IX itself doesn't recommend specific penalties, also known as sanctions, for students. It doesn't even provide a list of possibilities.
Title IX doesn't have anything to say about students. As written, Title IX applies to schools. It prohibits schools from discriminating on the basis of sex, and it assigns a financial penalty to any school that doesn't comply. That, of course, creates a mandate for the school itself to create a system for punishing Title IX offenses, and lawmakers have added guidelines over the years. It is entirely up to the school, though, to assign sanctions
Though they may mention other potential sanctions, it is unusual for a school to assign a penalty less than suspension in these cases. In fact, many schools routinely suspend respondents at the very beginning of their investigation before any evidence has been uncovered. They justify doing this by claiming they are helping protect “victims” or keeping the campus safe. Whether or not these justifications are valid is a subject of debate. The practical consequence of suspending students is not. Suspension disrupts your academic progress. It can wreak havoc on the momentum you've built over several semesters. A suspension can throw off your plans to graduate. It can interfere with your scholarships and loans.
Suspension isn't the worst thing that can happen to you in a Title IX case, though. More likely, if the school finds you responsible for the misconduct, they will immediately expel you. Worse still, at most schools, the expulsion comes with a transcript notation that explains the specific reason why you were expelled. That notation makes it unlikely, if not impossible, that you will be able to find another school to take you in. The bald fact is, if you're found responsible, your academic career may very well be over.
If you can't transfer to another university, you're looking for employment without a college degree. You probably know the statistics. It is far harder to find work without a college degree, and you'll probably wind up making far less throughout your lifetime than someone who does have a degree. You won't even be able to tell a prospective employer you've had some college since proving that you've taken classes requires a transcript. You're unlikely to share such a document if it says in large, bold, block letters that you were expelled for sexual misconduct.
One reason schools are allowed to refuse defendants some fundamental rights, rights they'd be entitled to in a court of law, is because lawmakers don't feel students face the same kind of punishment they would face in the courtroom. After all, no school can send a student to jail for a Title IX offense.
However, as federal courts have increasingly begun to recognize over the last ten years, being expelled—being denied the possibility of a college education—can be every bit as consequential as jail time.
The penalties used in Title IX cases, then, only further call into question the very notion of whether campus justice exists. Precisely because the sanctions can be so severe, the idea that schools should be able to bend the rules of justice, the rules that apply in every single courtroom across America, seems, at best, grossly unfair.
Your Rights Under Title IX
We have a long and proud tradition in this country of protecting the accused from mistreatment at the hands of the law. We don't believe in mob justice, and we do everything we can to guarantee that defendants receive a fair trial and the best possible chance at true justice. Our judicial system is so concerned with protecting the rights of the accused that it is set up so that actual criminals sometimes go free. That's the price we must pay to ensure no one is wrongly convicted.
Unfortunately, Title IX cases operate outside the U.S. judicial system. Sure, the Title IX process resembles a court case in some ways. There's an investigation and a hearing. The current guidelines even allow for attorneys to examine and cross-examine witnesses. One key component is missing in Title IX cases, though: defendants' rights. From the moment an accusation is made, Title IX rules create a bias against the accused, which ultimately colors the entire process.
Biases in the Law
Perhaps the biggest problem with Title IX is that it creates a powerful incentive for colleges and universities to mistreat anyone accused of sexual misconduct. The threat of losing funding is real and serious, a threat no school wants to risk. Most schools use federal money to fund financial aid packages, including scholarships, grants, and loans. A school that can't offer this kind of help to its students can't expect to survive for long. Colleges and universities are willing to do whatever they must to avoid this scenario.
Take a moment to consider that phrase: “whatever they must.”
The simple truth is that in the real world, the world that exists beyond university walls, sexual harassment and discrimination aren't even crimes unless they happen in the workplace. Obviously, they can be related to crimes like assault and rape. In and of themselves, however, discrimination and harassment aren't illegal.
When someone does report a crime to the police, even serious crimes like stalking or date rape, the police don't automatically investigate. A complaint must be reasonably credible, and the police must uncover some evidence to substantiate the claim. Likewise, before a case goes to trial, a prosecutor must believe they have a reasonable chance of winning the case. Otherwise, they won't proceed.
On the other hand, when it comes to Title IX, schools are all but obligated to pursue every allegation, no matter how spurious it may seem. In addition, they have a built-in incentive to convict the accused since failing to convict could be seen by the government as an indication that the school isn't taking discrimination and harassment seriously enough. That would put funding at risk.
The end result is that right from the start, and schools are predisposed to treat the accused as guilty.
Presumption of Innocence?
We learn about it in ninth-grade civics, but any kid who's grown up watching television already knows it by heart: anyone accused of a crime is “innocent until proven guilty in a court of law.” It's one of our most fundamental, sacred rights as Americans.
The biases created by Title IX itself undermine that principle. However, the school may use additional tactics that violate it as well. For example, virtually every college and university offers complainants various services, from medical care to counseling to academic support. That's to be expected: any potential victim of sexual assault deserves to be treated with care and respect.
The problem is, in most cases, the accused isn't given the same level of concern. An accusation of sexual misconduct can be traumatic. Many students suffer PTSD as a result of having the campus police bang on their door at three o'clock in the morning and lead them away in handcuffs. Surely they deserve some support as well. After all, accused students are still university students. More importantly, they deserve to be treated as innocent until proven guilty.
In fact, in some cases, a school may try to suspend accused students, even before they've conducted a preliminary investigation. That can undo the progress the student has made towards their degree, putting what they've worked for in jeopardy.
Biases in the Investigation
It's the job of the police to uncover the facts in a case, follow those facts wherever they might lead, and discover the truth. They can't do this job effectively if they've made up their minds about what happened before investigating.
Title IX doesn't require investigators to be trained members of law enforcement. Anyone on campus can become an investigator by taking a simple two to three day training course. In fact, in some cases, they can complete the whole course from the comfort of their office by attending webinars.
It isn't surprising, then, that these investigators frequently make mistakes, sometimes quite egregious mistakes. Among these, they often assume the accused is guilty at the start of their investigation. In case after case, the U.S. courts have discovered investigators that refused to consider evidence offered by defendants or refused to interview witnesses whose stories contradicted the complainants. In a 2018 case, they found that the University of Mississippi had trained investigators using handbooks that said complainant lies should be treated as evidence they were telling the truth. It's difficult to see how policies like these can possibly produce fair and just resolutions.
Conflicts of Interest
Another bedrock principle of the American justice system is that the police and courts should be separate entities. Those entities are even identified at the beginning of Law and Order episodes: “the police, who investigate crimes, and the district attorney, who prosecutes the offenders.”
The police must sometimes be dogged in their pursuit of evidence, and it's not unusual for an investigator to come to believe a suspect is guilty. However, the courts are supposed to take an objective view of the case. While they consider evidence presented by the police, they aren't predisposed to simply accept that evidence. They hear evidence and consider arguments from the defense about alternative ways of seeing the prosecution's evidence. To do all of this well, courts must be separate from the police.
In contrast, in a Title IX case, the school plays multiple roles, and often these roles contradict one another, creating inherent conflicts of interest. To begin with, the school serves as both investigator and judge. Different people at the university may perform those jobs, but ultimately everyone connected to the case works for the university.
In fact, the situation is even worse. Schools don't just serve as investigators and judges: they're also the plaintiffs in the case. A university may be acting on an allegation made by a student, but Title IX is quite clear that it is the school's responsibility to collect evidence and prove the case, not the student's. Again, the school's goal is to protect itself. A school isn't rendering decisions about students based on some deep, contemplative understanding of the law. Instead, they have instituted a process that mimics the law to keep themselves from violating federal law.
In simplest terms, Title IX puts schools in the position of investigating and judging their own claims. What plaintiff wouldn't win if they were allowed to investigate and judge their own case? The entire Title IX process simply gives them cover, the appearance of objectivity, as they do whatever they like to convict and punish accused students.
Beyond a Reasonable Doubt?
Almost as common as the phrase “innocent until proven guilty” is the phrase “guilty beyond a reasonable doubt.” This is the standard used in the American judicial system. It's a stringent standard, one that's difficult to meet. A juror can have “reasonable doubts” for all sorts of reasons, and only when they have none are they allowed to convict a defendant. We maintain this high standard in our courts because we believe it is essential that no one should ever be punished for something they didn't do. We believe in that idea so strongly that we're willing to let some guilty escape justice to protect it.
Unfortunately, Title IX cases don't use this standard in determining guilt or innocence. Instead, they use a much more relaxed standard. Schools are allowed to use the “clear and convincing” standard, which demands decision-makers believe the crime most probably occurred as it is alleged.
Most schools, however, apply an even less rigorous standard known as the “preponderance of evidence.” Under this standard, decision-makers need only decide that a crime is more likely than not to have occurred. Essentially, if they are 51% sure the incident happened, they must find the defendant guilty. That's a far cry from being sure “beyond a reasonable doubt,” and it's yet another reason so many students accused under Title IX wind up being found responsible.
No one can be convicted in a court of law unless twelve jurors unanimously agree they're guilty. This kind of strict rule is in place to ensure the rights of the accused to a fair trial and a just verdict.
No colleges or universities in the country use twelve impartial jurors to decide Title IX cases. In fact, some appoint only one decision-maker to decide on innocence or guilt.
Most don't give a single person all the power, though. Instead, they impanel three to five campus members to hear the case. However, verdicts need not be unanimous. Instead, they are almost always based on the majority of the panel's viewpoints.
Rights to Appeal?
Finally, the American justice system recognizes that judges and juries can sometimes make mistakes. To correct these mistakes, the U.S. has an extensive appeals process. Defendants who have been found guilty have the right to appeal that decision to higher courts, and they can file such appeals on several different bases.
In contrast, students found guilty by Title IX panels have only one chance to appeal their verdict. They may do so through the university's president or provost. That official's decision is final.
In addition, schools only allow appeals under very limited circumstances. These include:
- New evidence
- Clear violations of the Title IX process
- Clear demonstration of bias on the part of the Title IX Officer, the investigator, or the hearing decision-makers
It is worth noting that placing the power of judging appeals in the hands of yet another school official presents another clear conflict of interest. It would be the rare university president who was willing to overturn a decision made by members of his own faculty and the student body. Appeals don't involve independent judicial review but rather the rubber stamp of yet another university representative.
How Did We Get Here?
One might reasonably ask at this point: how can schools get away with treating accused students this way? Why can they ignore the fundamental rights we give to everyone in the “real” judicial system?
There are two answers to these questions. The first has to do with the way the law is written. A student who is accused of sexual misconduct under Title IX hasn't broken any laws. Instead, the school investigates and prosecutes that student so that the school itself won't be in violation of the law. If a student hasn't broken the law, isn't being accused of breaking the law, and isn't being tried for breaking the law, the government doesn't deem it necessary to protect that student's rights. Essentially, Title IX provides a convenient loophole for giving schools unquestioned authority to treat defendants entirely as they see fit.
This mistreatment is further justified by the argument that university justice isn't as serious as courtroom justice. Schools can't send students to prison, so the argument goes, so they can employ less rigorous standards in how they treat the accused.
In a literal sense, such arguments are valid. Schools can't send students to prison. However, the argument ignores the fact that the penalties schools impose can be every bit as harsh as prison sentences.
A student convicted of sexual misconduct under Title IX likely faces at least suspension from school. The more common penalty is expulsion with a transcript notation about the nature of the offense. Such a penalty virtually guarantees a student won't be able to enroll at another school. And without a college education, they will have more trouble finding a job, more trouble advancing in a career, and are likely to earn far less money than their college-educated peers.
Given this fact, arguments for allowing schools to ignore student rights don't seem to hold water. Instead, the lax Title IX rules wind up serving as an excuse to sidestep actual justice in favor of getting the verdicts the government wants.
The Current Context Title IX
Without question, Title IX has several serious problems. These problems began with the law itself, especially its mechanism for punishing schools that refused to comply. However, the problems have grown worse over time, as schools have instituted harsher penalties and the government has systematically removed one defendant protection after another.
All of the controversy surrounding Title IX has been super-heated in recent years, though, by movements such as Me Too. The result: defendants now face even more of an uphill battle to prove their innocence or demand reasonable sentences.
The Good and the Bad of Me Too
To be sure, the Me Too movement has done a great deal to advance the cause of women's rights and sexual equality in this country. It has brought much-needed attention to some truly despicable behavior and helped to make those who practice such behaviors accountable for their actions.
The problem with Me Too and other movements like it? They aren't concerned with justice in a legal sense. Social justice is important, but it has certain drawbacks. One of these is the failure of the process to protect the rights of the accused. The American justice system is built on important principles that safeguard the innocent from being unfairly convicted, principles like “innocent until proven guilty,” and due process rights. When these safeguards are removed, some innocent people will be punished. This kind of “social justice” is not so far removed from another kind of justice, one that we like to believe we are above: mob rule.
Me Too on Campus
The Me Too movement has found a home on many college campuses, embraced and promoted by feminist studies programs and women's advocates of all kinds. This relationship makes sense. The role of education in our society is to push boundaries, to present a progressive agenda. University faculty are engaged in the sacred job of questioning what we know and constantly proposing new solutions to humanity's problems. Higher education wants to improve the world, and it doesn't always have time to consider the repercussions of the solutions it proposes.
Further, it is undeniably noble for a college professor to champion the rights of one of their female students, to stand up against the male hierarchy, and demand equal rights and justice.
Yet, doing so doesn't guarantee justice will be done. Indeed, it makes it just as likely that an innocent person may suffer. Not every person who is accused is innocent. No one would argue that. Indeed some are, though. And even the students who are guilty may not always deserve the kind of harsh justice social movements want to mete out. Me Too and movements like it aren't set up to guarantee the accused get a fair hearing. That's precisely why they shouldn't be the final judge of anyone's guilt or innocence.
Unfortunately, many college campuses around the country have begun to move toward something very like mob rule over the past decade. At a minimum, offshoots of the Me Too movement have heightened tensions and paranoia at most schools.
One of the most popular posters displayed on campus these days notes that one in five college women will be a victim of sexual assault. That's an alarming number, and it demands we as a society make changes. There is more at stake than the number itself, though. Simply put, the poster's wording implies that sexual assault is a particular problem on college campuses, that college campuses are especially dangerous, and that college women must take extra care to be sure it doesn't happen to them. Yet while the statistic itself is accurate, the poster fails to note that the numbers for sexual assault among non-college women are actually higher. That is, women on college campuses are safer on campus than off of it. In the end, a poster like this one isn't simply about safety, the way a poster about the dangers of drinking is. It encourages an atmosphere of fear and suspicion, a paranoia of one sex about the other.
Showing films such as The Hunting Ground, frequently screened by campus women's groups, only further heightens such fears. In extreme cases, such propaganda engenders a belief that all men are potential rapists and that none can be trusted.
When students are scared, they are more likely to misinterpret others' words and behaviors. They're more likely to accuse other students without stopping to consider every aspect of a situation. Meanwhile, faculty are more likely to believe accusations and to encourage their students to believe they've been mistreated. Administrators are more likely to institute harsh punishments., investigators are more likely to ignore defense witnesses, and hearing panels are more likely to convict.
So, while no one is suggesting that Me Too doesn't do important work, that its goals aren't lofty, and its methods often necessary, it is nevertheless true that it sometimes creates situations in which it is virtually impossible for students to get a fair Title IX hearing. It is incumbent upon our lawmakers and college administrators to recognize this reality as Title IX continues to evolve.
Beyond Title IX
Most sexual misconduct allegations at a college or university are investigated and prosecuted under Title IX guidelines. Not all are dealt with this way, however. There are other types of justice you may face if you've been accused.
Student Codes of Conduct
At some point during freshman orientation, someone handed you a copy of your school's student code of conduct. Flipping through it, you'll find explanations for all sorts of violations, from drinking in your dorm room to breaking into a professor's office. This guide also describes in detail what can happen to you if you do break a rule.
Until recently, these codes of conduct were mostly silent on issues of sexual misconduct. Title IX dealt with such behavior through its own specialized procedures. All of this changed with the fall 2020 semester.
Earlier in 2020, the Trump administration issued brand new guidelines regarding how schools could deal with Title IX violations. These guidelines reversed a lengthy trend of denying students certain due process rights. The administration mandated that accused students were entitled to a hearing. In addition, it gave defendants the right to examine and cross-examine witnesses, including the complainant. Finally, the administration narrowed the definition of discrimination and limited schools' jurisdictions in pursuing Title IX cases.
Defense attorneys across the country celebrated a victory for justice. Most colleges and universities did not.
Many schools sued the administration to prevent the new guidelines from going into effect. None of those suits was successful.
However, several colleges and universities found a way around the stricter Title IX standards. While Title IX dictates how Title IX cases must proceed, it doesn't say schools can't investigate students under other policies or how those investigations much proceed. Many schools simply wrote sexual misconduct into their student codes of conduct. If they couldn't prosecute the incident under Title IX, they had the option to prosecute it under these codes.
This shift means sexual misconduct cases have become even more complicated since an accused student can't be sure which policy the school will use to prosecute them.
More importantly, once a case falls outside the Title IX parameters, the school doesn't have to provide even the few scant protections Title IX currently offers. A few schools use Title IX procedures in all situations. However, most do not. As with Title IX, schools usually appoint an investigator to look into the case. However, the accused has no right to a hearing. Instead, that investigator is empowered to determine the student's guilt or innocence and assign any necessary penalties. In other words, a single individual has complete authority in the case.
Of course, current Title IX rules don't go far enough in protecting defendant's rights, but under these alternative investigations the accused are treated even worse.
Often student complainants file their complaints with campus police or the university's Title IX office. However, they have the right to report incidents to outside authorities as well. If you've been accused, you could find yourself facing a Title IX hearing, a criminal prosecution, or—in some cases—both.
Criminal investigations and Title IX cases aren't usually connected, though investigators may share evidence. For one thing, the police aren't required to investigate complaints they receive. For a variety of reasons, they may simply ignore a complainant's claims. It could be the incident doesn't rise to a criminal level. Discrimination and harassment aren't by themselves criminal outside the workplace. Of course, actions such as stalking, assault, and rape are, and the police will typically investigate. Even in such cases, though, the police could decide not to pursue an investigation if, for instance, they believe there isn't enough evidence to warrant going further.
By the same token, though, Title IX investigators aren't bound to take criminal investigations into account. Even if the police should drop a case, a school is within its rights to continue. Unlike the police, schools do regard simple harassment and discrimination as policy violations. Posting a harassing comment online or making a harassing comment in class can get you expelled. In fact, even if you're tried for an offense in criminal court and acquitted, a school can still try you for the same violation under Title IX.
The Court of Public Opinion
Finally, you should know that even if you successfully defend yourself against a Title IX accusation, even if the case is dropped well before it makes it to a hearing, you may still face serious repercussions.
Once an accusation has been made, it's always possible it will become public knowledge. Schools give lip service to the idea that everyone's identity should be kept confidential, but confidentiality can be hard to maintain in practice. To be fair, it would be difficult to imagine that anyone could thoroughly investigate a case of sexual misconduct without it leaking out. Even the defense needs to question witnesses and gather evidence, and once a few people have been alerted to what's happening, stories about the case can quickly spread.
At a minimum, several people on campus may know about the allegation. In some unfortunate cases, though, it can spread more broadly. Some incidents, for instance, wind up as newspaper headlines, and social media posts and comments can linger in cyberspace forever.
There are ways to limit this kind of public feeding frenzy, but typically they require an attorney's expertise.<
What to Do if You're Accused
Given what's at stake, no one wants to face a Title IX investigation. It's serious business, and if you've been accused, you're likely feeling a range of complex emotions, none of them good. There's the fear of what may happen to you. But you may also be angry at the person who accused you or hurt that someone you cared about has made this allegation. You may be feeling depressed, traumatized, overwhelmed.
The very first thing you should do is take a deep breath and let it out. Then remind yourself that you can handle this situation. A Title IX accusation is serious, and dealing with such an accusation may be an uphill battle. It isn't a battle you have to fight alone, however. And there are important steps you can take to get your defense started.
Contact a Title IX Attorney
Once you are calm enough, contact an attorney immediately. If you know an accusation is coming, don't wait for the school to make a formal complaint and launch an investigation. You need help now before you have to talk to anyone about what happened before you have to deal with campus rumors and handle potential media fallout.
Don't Talk to Anyone
You'll need to let your family know what's happening, and it can be important for your mental health to talk to a close friend or two about your situation. Otherwise, don't talk to anyone about what's happened without first consulting your attorney.
Recognize now that if you've been accused, your school is not on your side. You may be used to thinking of your school as your home. You live there and spend all day in classes there. They feed you. On the weekends, you cheer like a maniac for the football team. It can be tempting to believe your school has your best interests at heart, that it will take care of you and protect you.
Unfortunately, your school is now your enemy. It wants to convict you. It has clear incentives to convict you. If someone says you can talk openly and not worry about the repercussions, don't believe them. Anything you say can be used against you and probably will be. This is true even if you're entirely innocent. It won't help just to “explain what really happened.”
Don't talk to the school. Don't answer queries from the media. Keep everything to yourself, and as soon as you can, make sure you have an attorney on your side who can speak for you.
Don't Talk to the Complainant
Without question, don't communicate with the complainant in any way. Most schools immediately prohibit the two sides of the case from talking with one another, and some may even issue no-contact orders. Even if they don't, you must avoid your accuser at all costs.
Your natural impulse may be to contact your accuser, especially if it's someone you know, someone you trusted. You may want to believe that if you just talk to them, the two of you can work the situation out. You're likely upset, and you may be panicking. In that state of mind, anything sounds better than dealing with a formal investigation and a hearing.
It may be difficult to accept, but once someone has lodged a complaint of sexual misconduct against you, the wheels of justice are already in motion. Even if this person did decide to withdraw their complaint, that wouldn't necessarily stop the process from moving forward.
In all likelihood, though, the person who made the accusation has strong feelings, and they aren't likely to change their mind just because you spoke with them.
Instead, what usually happens is that your attempt to reach out to the complainant will be treated as additional harassment or an attempt to interfere with the investigation and hearing. Don't risk this possibility.
Don't speak directly to your accuser, and don't speak indirectly with them either. You shouldn't call, email, or text them. You also shouldn't send messages to them through other people. And while it should be obvious, it's worth saying: don't talk to your accuser on social media.
Begin to Gather Evidence
You don't want to launch a full-scale investigation yourself into what happened. You shouldn't start demanding anyone turn over evidence, for instance. However, there are things you can do to begin preparing your defense.
First, save any physical evidence relating to what happened. This could include clothing, pictures, and video. Don't forget communications such as texts and emails. Brainstorm a list of absolutely every physical object that might be relevant: dorm entry and exit logs, photo albums, credit card receipts.
Never discard evidence. You may think a text makes you look guilty, but your attorney might know how to use it to your advantage.
Next, consider the way your own story can be used as evidence. Take the time to sit down and write up your version of what happened. This will give your attorney a place to start when they begin plotting your defense strategy.
Talking to Witnesses
One of the most important types of evidence is witness testimony. For whatever reason, humans remember stories better than we remember hard facts, so anyone who can describe the scene of what happened can make or break a case. If you've been accused, one thing you might do in the beginning is to make lists of potential witnesses to whom you and your attorney should speak.
There are two types of witnesses: fact witnesses and character witnesses.
Fact witnesses include anyone who can testify about what happened in the case. Typically, this only includes people who can offer first-hand accounts. However, the witness need not have been present at the event itself. For example, a roommate might provide first-hand testimony about the complainant's state of mind before going out for the evening. A partygoer might testify to how much they had to drink. In fact, in Title IX cases, second-hand evidence or “hearsay” is sometimes allowed. This means even someone who heard about the complainant's behavior might be able to testify.
Character witnesses usually don't know anything about the event itself. Instead, they testify as to your personality traits and your values. They tell the hearing panel what a good person you are. All sorts of people make good characters witnesses, but the longer someone has known you the better since they can testify more fully about your character. In addition, the very best character witnesses are people of the same sex as the complainant who can talk about how you always treat members of that sex with dignity and respect.
Keeping Your Sanity
Last, but certainly not least, you must find ways throughout the Title IX investigation and hearing to keep your sanity. You can't help your defense lawyer if you are too depressed to get out of bed.
Try to keep your life as normal as possible. Continue going to classes, continue participating in the same activities with friends.
Find a close friend or two in whom you can confide. Having someone to talk to can be enormously helpful in allowing your feelings to come to the surface.
Seek counseling. Another important person you might talk to is a therapist or psychologist. They will keep what you have to say in strictest confidence, and they may be able to offer strategies for dealing with the stress you're under.
Find your comforts. We all have things we like to do that make us feel better. It might be watching an old movie or playing the piano. It could be working a jigsaw puzzle or listening to music. Whatever your comfort activity is, use it. Any time you're feeling overwhelmed, find some time and space to take care of yourself.
Finding the Right Title IX Attorney
You can't win your Title IX case on your own. Your school will bring all the resources it has to bear on convicting you, and it has the full backing of the United States government. The Title IX judicial process is complex and challenging to navigate. It's also stacked in the complainant's favor.
Leaving all that aside, there's simply too much at stake to risk trying to handle your case by yourself. You're facing the possibility of expulsion and the likelihood that you may never be able to complete your college degree. That possibility doesn't even consider what may happen to you if the accusation against you should become public knowledge. The internet has a long memory.
You need a Title IX attorney, and you need to get one as quickly as you can.
Don't Rely on Your Family Attorney
The fact that you need an attorney doesn't mean you should hire the first one you come across. Many families have an attorney they go to for legal advice. This attorney may help family members set up their wills or represent the family in minor legal matters like property disputes. If you need those kinds of services, you won't find anyone to represent you than a local family attorney better. This situation calls for someone else, though.
Some people mistakenly think a family attorney is a good choice because you aren't dealing with the actual police or real prosecutors and judges in a Title IX case. A Title IX accusation might seem like the kind of slight misunderstanding a family attorney can clear up for you. It isn't. Title IX is a federal law, and schools treat it with extraordinary seriousness.
You may also be tempted to use a family attorney because they know you. They seem trustworthy. Title IX cases are often sensitive. You may have to reveal private details about yourself, things that make you feel uncomfortable. Sharing this information with someone you know may feel less threatening than talking with an attorney you've never met before.
A family attorney simply doesn't know enough about Title IX to represent you. They likely aren't qualified to work on complex federal cases. Even if they are, Title IX is a very specific law with many unique peculiarities. Among other things, you aren't being accused of breaking the law. Your case won't take place in a courtroom, but in some musty classroom or a study carrel in the basement of the student union.
Only someone well-versed in Title IX, with lots of experience, has a real chance of winning your case. In fact, good family attorneys will probably tell you: you need someone with a specialized background.
Look Beyond Local Attorneys
Many times a local attorney is the very best person to represent you. For example, someone in your city or your state is far more likely to understand your state's legal system than someone from the other side of the country. A local attorney will know the ins and outs of local law, they'll know how the process works, and they'll likely know the people involved—the other lawyers, the judge, the court clerks.
Title IX isn't a state law. It's a federal law. It doesn't take place in state court; it takes place at your school. You need someone with experience in that venue. If you should lose your school hearing, you may very well want to file a lawsuit against the school for violating your due process rights. To do that, you'll need someone with experience trying cases in federal court. What your attorney knows about the local judicial scene just isn't relevant in either situation.
Title IX Attorneys
Title IX is a unique federal law. It has a complex history, and it's difficult to understand and subject to frequent change based on politics. A Title IX case is also different from other criminal cases in that you aren't being tried for having broken the law. Instead, the school is trying to remove you from campus for violating its own policies.
Title IX attorneys specialize in Title IX. They know the law and how it changes. More importantly, they know how to deal with school administrations. Your first stop in a Title IX case won't be a courtroom. It will be a campus hearing. Title IX attorneys are skilled at dealing with just these kinds of hearings.
If you should lose your case, though, you don't appeal it the way you would if you'd been convicted in court. Because you haven't been convicted of breaking any laws, you can't appeal the case in criminal court. Instead, to get your life back, you must bring suit against the school in civil court. Here again, not every attorney is comfortable trying both criminal and civil matters. Title IX attorneys, however, are trained to do just that.
Title IX is a federal law. Among other things, that means an attorney representing you can be from any state. They don't need to know state law. It's far more important they understand the federal law and have spent time inside of a federal courtroom. However, more important than the attorney's experience with federal law is their expertise specifically with Title IX. You're not looking for the closest attorney. You're looking for the very best qualified Title IX attorney.
What Can a Title IX Attorney Do for You?
Your attorney will have several important jobs.
- First and foremost, your attorney will advise you. They'll help you develop a winning defense strategy and map out precisely what you should do. They'll let you know who to talk to and who to avoid. They'll tell you what to say and when to keep quiet.
- A Title IX attorney will often do the talking for you. They know the law, and they know what to expect from investigators and prosecutors. They're also practiced in thinking on their feet and responding to rapid-fire questions with the correct answers.
- They'll represent you in hearings and court. Under current Title IX guidelines, a Title IX attorney makes arguments on your behalf and raises objections to the process. They also examine and cross-examine witnesses. They deal with every aspect of your case in a courtroom, from opening statements to closing arguments.
- They'll negotiate a settlement if you need one. They are skilled in the art of negotiation and know how to get you the very best possible deal.
- A Title IX attorney will keep a thorough record of everything that occurs. Your attorney will likely raise a lot of objections to the way your school treats you. Many of these objections will be ignored, but your attorney will note each of them. This record then becomes the groundwork for a civil case should you lose your Title IX hearing.
- They can deal with the media on your behalf. A Title IX attorney can help to ensure that the school maintains your confidentiality. If the case becomes public, though, they have experience dealing with the media and making sure you are treated fairly.
Finding the Right Attorney
Search far and wide if you've been accused of a Title IX violation and need an attorney. Don't limit yourself to lawyers in your state or even in nearby states. Do a nationwide search.
Eliminate any attorneys that don't specifically say they are Title IX attorneys.
Then consider each attorney's record carefully. How many Title IX defenses have they led? How many appearances have they made in federal court? Are they experienced at handling campus judicial hearings? What kind of results have they gotten for their clients.
Don't settle for anything less than the best-qualified Title IX attorney you can find. Your future is too important to put in anyone else's hands.
Title IX: The Bottom Line
In our current social and political climate, Title IX investigations and prosecutions will happen and at much too high a rate. That means that schools will wind up convicting innocent students in far too many of these cases and assigning penalties that are simply too harsh.
How did we get here? That's a tough question. The answer involves the way the law was initially written. It has to do with how society has changed in the wake of the Me Too movement. The answer relates to how schools have changed over time to become so radical they ignore defendant rights. To a certain extent, it's about the belief that campus justice isn't as serious as courtroom justice. And the answer certainly relates to the back-and-forth tug-of-war that characterizes contemporary national politics.
However we arrived, one thing is sure. When it comes to Title IX, the deck is stacked against the accused. Colleges and universities do everything they can to convict student defendants. They have incentives from the government to do so. They will deny the accused fundamental due process rights such as the presumption of innocence and the right to be proven guilty “beyond a reasonable doubt.” They will side with the complainant, giving this person special treatment and ignoring evidence from the defense. Schools have even been known to engage in dirty tricks like canceling students' email accounts to prevent them from accessing important evidence.
Here's the good news, though. You can win your case. You can fight to hold on to your good name and your academic future, and you can win. Even if you should lose your school hearing, you have the right to sue the school over how they've treated you, how they've denied you your fundamental rights under the law. Increasingly, federal courts are coming to recognize that schools can't continue to treat their students this way. They understand that Title IX is an inherently flawed law.
To win, though, you're going to need help, the best help you can find. A qualified Title IX attorney will stand by your side from the moment you're accused until you've reached the right resolution in your case. They will help you prepare to tell your story; they will advise you in interviews; they will represent you in hearings and, if necessary, at trial.
A sexual misconduct accusation doesn't have to ruin your life. As unfair as it can sometimes be, a Title IX hearing won't destroy you. Know your Title IX, and hire an expert to help you. You will survive, and despite the incredible burdens involved, you will become a stronger person.
Joseph D. Lento: National Title IX Attorney
Attorney Joseph D. Lento built his career defending students from Title IX allegations, and he has unparalleled experience in the Title IX arena. Attorney Lento and the Lento Law Firm have handled hundreds upon hundreds of Title IX cases at the school level from coast to coast and across all corners of the United States, and they fight for their Title IX clients day in and day out on a national basis. Attorney Lento does not "dabble" in Title IX cases - Attorney Lento fights in the arena all day every day.
Experience and a Fighting Spirit - A Winning Combination
Winning the battle at the school level is critical, but when a school does not respect a person's rights, attorney Joseph D. Lento and his team have also taken schools to court across the United States to demand justice. Attorney Lento is well-versed in the law and its history. He is up-to-date on the most recent rule changes and monitors the political landscape so he can respond to any new announcements. At the same time, Joseph D. Lento is familiar with how universities operate. He knows how to talk to academics, how to protect your rights, and how to get you the best possible resolution to your case.
If you or your child has been accused of sexual misconduct by your school, contact the Lento Law Firm today, at 888-555-3686, or use our automated online form.