Student Discipline under Title IX for Sexual Misconduct 2020-2021

My office provides consulting, advocacy, and defense services for students and professionals facing allegations of sexual misconduct pursuant to Title IX of the Education Amendments of 1972. This federal law was created to protect people from discrimination based on their sex. Specifically, it provides that no person, within the United States of America, 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.

Title IX applies to all institutions that receive federal financial assistance from the U.S. Department of Education, including local and state agencies. Many public and private k-12 schools, colleges, and universities receive federal funding and thus, are responsible for instituting policies and procedures in line with Title IX. Types of funding include, but are not limited to: federal financial aid (student loans); federal student aid grants; blended school funding from federal, state, and local sources; federal free lunch programs, etc.... Further, with the recent pandemic, many institutions and private businesses (eg. religious schools) that had not received federal funding pre-pandemic are now subject to Title IX because they took out Paycheck Protection Program (PPP) loans. These PPP loans are considered a type of Federal Funding. You can find out if an institution received a PPP loan by reviewing data published by the U.S. Department of Treasury (https://home.treasury.gov/policy-issues/cares-act/assistance-for-small-businesses/sba-paycheck-protection-program-loan-level-data).

A few years ago, in September 2017, after President Trump was elected and appointed Betsy Devos as the U.S. Secretary of Education, the U.S. Department of Education rescinded the 2011 Dear Colleague Letter on Sexual Violence (https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html) and the 2014 Questions and Answers on Title IX and Sexual Violence (https://www2.ed.gov/about/offices/list/ocr/docs/qa-201404-title-ix.pdf), which were two published “significant guidance” documents meant to provide recipients with information to assist them in meeting their obligations, and to provide members of the public with information about their rights under the civil rights laws. A replacement was simultaneously issued (https://www2.ed.gov/about/offices/list/ocr/docs/qa-title-ix-201709.pdf), but that was also later rescinded. On or about May 19, 2020, the U.S. Department of Education issued the final Title IX rule (https://www.federalregister.gov/documents/2020/05/19/2020-10512/nondiscrimination-on-the-basis-of-sex-in-education-programs-or-activities-receiving-federal) and this final rule was set to become effective on August 14, 2020. Several state attorneys general sued Devos over the final Title IX rule, however, their challenges were dismissed. The 2020 Elections results have ended President Trump’s re-election hopes (arguably, President Trump has yet to concede despite several failed attempts at challenging the election results), so there is a strong likelihood that President-Elect Biden will move quickly to attempt to roll back the final Title IX rule. However, even if this is the first thing on the new president’s agenda, the final Title IX rule may still be in effect until inauguration day, January 20, 2021.

These recent changes, along with the potential for a roll back of these changes, leave things in flux. Many institutions have implemented new policies and procedures, but it is unclear what rules will be enforced for allegations made prior to the August 2020 effective date or should the new rules be rescinded in 2021, whether allegations made while the current final Title IX rule is still in force will be governed by whatever guidance replaces the current final Title IX rule. There may also be conflicts between the new requirements and the Office of Civil Rights requirements; various institutions student handbooks or policies; and state or local laws.

Especially because of the flux Title IX finds itself in, it is extremely important to consult legal counsel if you ever find yourself dealing with sexual misconduct allegations or a Title IX grievance charge. This article provides very basic general information and cannot replace the advice of a qualified attorney. My office provides services to students and professionals Nationwide, so please call my office at (888) 406-1975 or visit my practice group website (www.AcademicAdvocacyAppeals.com) to set up a consultation.

The U.S. Department of Education is the federal agency responsible for enforcing Title IX and within this agency sits the Office for Civil Rights which is responsible for issuing guidance, enforcing Title IX on campuses, and processing complaints against schools for alleged violations of the law. Title IX may cover conduct on and off campus or at campus sponsored events. The current final Title IX rule is a little more restrictive or narrow, in that Title IX is only enforceable in a school program or activity, including locations, events, or circumstances over which the school exercises control and in any place owned or controlled by an officially recognized student organization within the United States. For example, if an officially recognized fraternity has its own house off campus and a sexual assault happens there, the school must investigate under either the current or old Title IX guidance.

This means that the current final Title IX rule does not require institutions to enforce Title IX for offenses that occur overseas in study abroad programs or at off-campus housing or other off-campus locations, whether or not students are involved. However, just because Title IX doesn’t require an investigation, it does not mean that an incident will not be investigated or that the misconduct is not covered under other code of conduct provisions. Victims of sexual misconduct that a school fails to investigate may file a complaint with the Office for Civil Rights against their school for violating Title IX, so most institutions will investigate claims to avoid an investigation and the risk of losing federal funding sources.

Title IX investigations involve all sexual misconduct, including sexual harassment; sexual violence; sexual assault; sexual battery; sexual coercion; revenge porn; intimate partner violence; verbal or physical threats based on sex or sexuality; stalking; and any other type of gender discrimination. Many schools provide a dedicated section in their student handbooks regarding the various types of sexual misconduct and discrimination covered. The government does not tell schools exactly what must be done and instead, only provide that schools must comply with Title IX’s general rules, but schools must create and follow policies and procedures maintained in student handbook or otherwise published to their respective communities. Under both the former and current guidance, schools may offer mediation or restorative justice resolution processes, but only when all parties voluntarily agree to use those processes.

Title IX provides certain rights to both reporting parties (victims/survivors) and respondents (accused/perpetrators). Schools must: respond promptly and effectively to sexual misconduct; provide interim measures as necessary; make known where you can find confidential support services; conduct an adequate, reliable, and impartial investigation; provide remedies as necessary; and notify victims of any disciplinary sanction imposed on a person found responsible for sexual misconduct. If you want to learn more about your rights, contact a lawyer or the U.S. Department of Education Office for Civil Rights at [email protected] or (800) 421-3481.

Under the final Title IX rule, schools must provide sufficiently detailed written notice to the parties with the names of the parties involved; the conduct alleged; specific references to sections of the student handbook that were violate; and the date/location of the alleged misconduct, all before any initial interview. The respondent must be presumed not responsible and be permitted to review all evidence in the possession of investigators, and be made aware whether submitting false statements or information is punishable under the school’s policies. The final rule does not put a time limit on investigations, except to say they must be prompt and only reasonable delays are permissible. Further, schools must write an investigative report and must provide same to the parties at least ten (10) days before any hearing is scheduled.

Interim measures include orders or mandates to ensure the safety of either the reporting parties and/or respondents even before an investigation begins or before any final determination or finding of responsibility. Popular interim measures include: no contact order between the parties; counseling; extensions of deadlines or other course related adjustments; and/or changes to housing, jobs, class schedules, and extracurricular activities. These measures are often granted upon request by either the reporting parties or respondents and may continue throughout and after the completion of the school’s disciplinary process. While Title IX guidance attempts to prevent favorable treatment to reporting parties or respondents, the prior rule makes clear that schools must minimize possible burdens on the party that was allegedly victimized. This is often interpreted to mean that a respondent should be the one to make changes to accommodate the reporting parties.

The current final Title IX rule only requires interim measures for the complainant and that those measures must be free of charge and that these measures cannot be punitive, disciplinary, nor unreasonably burdensome on the respondent. Further, the current final Title IX rule requires schools to immediately and confidentially contact the reporting party to inform them of available supportive measures; consider what a complainant wants; and document the facts and circumstances that show a given measure is supportive. Except for emergency removals based on an apparent immediate threat, interim suspensions or expulsions pending the conclusion of an investigation or disciplinary process are not permitted under the current final Title IX rule. Under the prior and current guidance, no school may prevent a party from discussing the allegations under investigation or from contacting potential witnesses.

If a complaint is not determined to be unfounded after investigation, schools must provide for a hearing process. Under the current final Title IX rule, these hearings must be held live in-person or virtually. The former guidance discouraged schools placing non-party students on judiciary panels or hearing boards involved in the investigatory or disciplinary process. The current guidance fails to mention involvement of students except to state that panels or decision-makers need not be employees.

Under the former Title IX guidance, respondents were not permitted to cross-examine (ask questions to) the reporting party witness, while the current final Title IX rule requires schools to permit respondents the right to submit questions to be asked of the complainant or witnesses, and the right to have an attorney or advisor of their choice present at any phase of the disciplinary process. If a respondent or complainant does not have an advisor or lawyer advising them during a hearing, the school must provide that party with a trained advisor of their choice. Whether you are the complainant or respondent, it is imperative that you have a competent advisor to guide you through the disciplinary process.

There are varying evidentiary standards that may be used by schools during the disciplinary process. The former Title IX guidance required that schools use a “preponderance of the evidence” (whether is it more likely than not) standard when making a determination of responsibility of Title IX grievances. This was changed in 2017 to allow schools to choose between preponderance of the evidence and the “clear and convincing evidence” (highly or substantially more true than untrue) standards, as long as the standard used is the same as what the school applies to any other types of disciplinary proceedings. So, if your school uses a clear and convincing evidence standard for plagiarism charges, then it may use that standard in Title IX cases. However, the final Title IX rule permits schools to use either standard regardless of whatever standard used in non-Title IX cases. It is also important to review local and state laws, because some states require that schools within their borders use a particular standard.

Alcohol use can prove to be a huge factor in Title IX disciplinary proceedings. Many schools do not permit respondents to use intoxication as a defense to a claim of sexual misconduct. On the other hand, a reporting parties’ level of intoxication may be used against a respondent. Schools often use a “reasonable person standard” (should respondent have known that the victim was unable to give consent to sexual conduct or activity). For example, a respondent was able to get the courts to overturn a finding of responsibility and expulsion by respondent’s school when even though the alleged victim was “blackout” drunk and intoxicated on Xanax, the facts established that respondent did not initiate the sexual contact and it was the alleged victim that got on top of the respondent to perform sexual acts while respondent was passively laying supine.

At the conclusion of a Title IX disciplinary process, under the current final Title IX rule, written notice must be provided to the parties of the determination, findings of fact, conclusions of law, rationale for the results, any sanctions, and whether ongoing remedies will be provided that restore the reporting parties’ access to education. Many schools provide for a minimum sanction of suspension or expulsion when a respondent is found responsible. The past guidance required schools to measure the impact of separating a student from their education, but the current final Title IX rule makes clear that sanctions must be designed to “restore or preserve equal access” to the school and may be burdensome and/or punitive to the respondent.

Nothing in Title IX requires schools to provide for any appeal process after the conclusion of disciplinary proceedings, however, most schools do provide for an appeal from a finding for or against the respondent. Meaning, both the reporting party or respondent may appeal under certain circumstances. Many appeals are limited to raising claims of due process violations and/or the discovery of new evidence that was unavailable at the time of the hearing. Sometimes there are multiple levels of appeal, but after appeals are decided, the administrative process is complete and decisions are final. If a party is not satisfied with the final determination, an aggrieved party may be able to challenge the determination in state or federal court based on a school’s failure to abide by its own policies, bias in the investigation, violations of Title IX, and, in the case of state schools, other constitutional or due process violations. There are strict timelines or statutes of limitations for appeals and court challenges, so it is important to consult an attorney as soon as possible.

Finally, Title IX prohibits any form of retaliation against witnesses, reporting parties, respondents, and/or anyone else involved in the investigation. A party may be unhappy with the result of the disciplinary proceedings and seek retribution in other ways. Many incidents requiring a Title IX investigation involve parties that know each other and they may contact the other party to apologize or talk about what happened despite no contact orders. These actions may be determined to be acts in retaliation and result in separate violations of a schools code of conduct or Title IX policies. Even victims that contact respondents who have been found responsible can end up facing disciplinary charges.   

In conclusion, no student should undertake their own defense in a school’s disciplinary process alone. Every college, university, or other institution has their own policies that may be difficult for a layman to understand. Oftentimes, innocent respondents don’t seek help because they don’t believe they can be found responsible for something they didn’t do. However, as discussed above, the evidentiary standard of preponderance of the evidence may be used. This is not like a criminal proceeding where proof must be beyond a reasonable doubt. Under a preponderance of the evidence, a finder of fact only has to be convinced that it is likely a respondent is responsible for a Title IX offense. Getting ahead of the situation and gathering evidence and witnesses to support your position is imperative. If you find yourself, a friend, or family member facing Title IX charges, contact us immediately for a consultation. My team is made up of experienced litigators that can help guide you through the process and give you the best possible chance of either minimizing or avoiding sanctions.

No matter what school you attend or where you are located, my team is available to protect your rights and hold schools accountable for complying with Title IX and conducting a fair and impartial investigation. While I hope you, your friends, or family never find yourself on either side of a Title IX investigation, know that we are here to help and no one has to go through the process alone. 

Contact us today!

https://www.academicadvocacyappeals.com/contact