Title IX Discipline Defense

Allegations of sexual harassment and/or assault can wreak havoc on a person's life under any circumstances. When you're a college or university student, such charges can utterly derail your future. Most colleges and universities practice strict enforcement of sexually related offenses under federal Title IX regulations—to the point that they have a separate office with a Title IX coordinator who processes these claims.

Under Title IX rules, anyone can file a complaint alleging sexual misconduct against another student without fear of retribution—and while sexual harassment and assault are never acceptable, many students regrettably end up falsely accused of Title IX offenses, whether it's due to a misunderstanding of intentions, a lapse in judgment, or even someone seeking to be vindictive. Because schools could lose their federal funding without strict compliance to Title IX rules, they are often quick to mete out severe penalties (typically suspension or expulsion) to accused students, many of whom don't even know how to defend themselves properly. As you might imagine, being saddled with an allegation of sexual misconduct not only could strip you of your opportunity to complete your degree but also deeply harm your future job and career prospects.

Students who are accused in Title IX cases, along with their parents, are often ill-equipped to address the charges because they don't understand the rules for processing these claims. In addition, because some Title IX violations are also criminal offenses, it's not unusual for accused students to face criminal prosecution alongside school disciplinary proceedings. In cases like these, it's essential to have proper legal representation to avert disaster. Your best choice is to hire an attorney with parallel experience as a Title IX attorney-advisor and as a criminal defense lawyer for any criminal charges resulting from those accusations. Attorney Joseph D. Lento is a New Jersey-based criminal defense attorney who is also recognized as a national expert in Title IX school disciplinary defense cases. If you are a student accused of wrongdoing under Title IX—or a parent of such a student—the Lento Law Firm has compiled the following information to help you navigate the complicated road ahead.

What is Title IX?

Title IX is a federal civil rights statute that prohibits gender-based discrimination of students, faculty, and staff in federally funded educational institutions. Title IX is intended to ensure that every student, no matter their gender, can have equal access to school facilities for both students and staff. Since most colleges and universities, both public and private, receive federal funding, the vast majority of them comply with this law.

A school that violates Title IX protections in any way must swiftly acknowledge and correct the problem it has created. That includes punishing students accused of violating the Title IX rights of another student through sexual misconduct. If they fail to do so, these institutions could lose part or all of their federal funding.

Title IX often is used to address discrepancies in intercollegiate athletics situations, but it also offers protection in a variety of other areas. Some other offenses that may fall under Title IX include:

• Sexual harassment
• Sexual violence (includes rape and sexual assault, sexual battery or sexual abuse, as well as sexual coercion)
• Gender-based bullying
• School policies that discriminate against a particular gender
• Employment discrimination
• Unfair treatment of a female athlete in intercollegiate sports (scholarships and funding, programs, etc.)
• Denying equal opportunities for students and employees in STEM (science, technology, engineering, and mathematics) related fields and programs

Title IX and Sexual Misconduct

In recent years, the definitions of offenses under Title IX have been expanded to include sexual misconduct as a form of gender discrimination. As a result, many Title IX cases now deal with students or school employees who have been accused of sexual harassment or sexual assault. Schools are required to investigate and reprimand those who have been convicted of these crimes using Title IX processes. If they fail to respond appropriately to sexual misconduct allegations, the schools themselves could be found in violation of Title IX.

Title IX Coordinators' Duties

To comply with Title IX rules, every federally funded school must have a separate office with a Title IX coordinator whose job it is to keep the school in compliance and address violations by school administrators, faculty, employees, or students. Federal law entrusts Title IX coordinators with many duties. Coordinators are responsible for supervising campus programs that protect against gender discrimination and sexual assault claims. They are also responsible for providing equal protections for both the claimant and the respondent in sexual misconduct claims. Many of these duties are often neglected or forgotten, often to the disadvantage of the accused.

Some of the specific responsibilities of a Title IX coordinator include:

Campus Climate Surveys

Coordinators are required to help create a campus culture that helps prevent acts of sexual violence and sex discrimination on college campuses. This is often done by providing training for students to help avert acts of sexual misconduct in dating situations, domestic violence, stalking, or similar offenses. These pieces of training can be used to help students avoid being sexually harassed or sexually assaulted by college staff or other students; they can also help students avoid behaviors that could be construed as sexual misconduct. In addition, the Title IX coordinator should conduct a periodic campus climate survey in order to assess whether their campus programs have been effective and to gather information that will improve them. These surveys can be done via email, on paper, or at student meetings.

Disseminating Title IX Policies

It is the Title IX coordinator's job to make sure all students, staff, and teachers understand the policies and regulations surrounding Title IX, as well as their rights under the law. This includes updating the campus on any rule or policy changes that occur as the law is reinterpreted by incoming administrations. The coordinator may disseminate this information through presentations, emails, posted notices, etc. Although it is unlikely that every student will receive a complete list of Title IX regulations and rights, students are taught a lot about Title IX, and the rights students have against discrimination based on gender.

Students must be aware of their Title IX rights in order to fully utilize them. Unfortunately, this doesn't always happen. When a Title IX coordinator fails to inform students of their rights, it can result in unfair accusations and placing the accused at a distinct disadvantage during Title IX investigations and hearings.

Monitoring Title IX Compliance

A Title IX coordinator's primary task is to ensure compliance and proper implementation of Title IX policies across all departments at the college or university. This responsibility applies to all college students, from the time they are admitted to college to the day when they leave. The Title IX coordinator works with other departments to ensure that policies are adhered to and that there is no sexual misconduct or gender discrimination.

Investigations and Disciplinary Measures

Title IX coordinators are also responsible for investigating allegations of Title IX violations and enforcing disciplinary measures. The Title IX coordinator will handle any investigation that is initiated by any report of sex discrimination or allegations of sexual misconduct. These investigations may include, but aren't limited to:

• Interviews with all parties
• Making sure all parties understand the grievance procedure
• Establishing the credibility of witnesses
• Evaluating the evidence objectively
• Deciding the appropriate disciplinary actions for the perpetrator
• Providing survivors of sexual misconduct or discrimination with resources to help them

Unfortunately, these investigations are often neither fair nor well-handled, particularly for those who are accused of sexual assault or harassment. Due process rights for the accused are typically less in Title IX cases than they would be in a court. Not only does the investigation process tend to favor protecting the alleged victim, but the allegations themselves carry such a stigma that the accused may be presumed guilty regardless of any policies to the contrary. This is one reason why it's so important to get help from an attorney-advisor if you are accused of Title IX violations.

What You Should Know About the Title IX Coordinator if You Are Accused

If you're notified that you've been accused of sexual misconduct under Title IX, you are referred to at that point as the “respondent.” It's normal to be a bit scared or confused at this news—and honestly, rightly so. Although the Title IX Coordinator is responsible for protecting your rights as well as those of the accuser (“complainant”), the fact is that Title IX coordinators are more inclined to support the accuser than the accused. Not all coordinators understand that you also have rights and protections under Title IX. This lack of knowledge can negatively impact your rights if you don't have an attorney-advisor involved to make sure your rights are protected.

What Are Some Common Types of Sexual Misconduct Under Title IX?

Different universities and colleges use different terminology to define what constitutes a violation of Title IX. While "sexual harassment" or "sexual misconduct" may be understood as umbrella terms, schools often have specific charges that will apply to students and other parties accused of violating Title IX. Schools do not limit themselves to only charging one or two offenses. If you're accused of sexual misconduct, you may face many charges. Common examples of Title IX violations may include:

• Non-Consensual Sex—classified as sexual contact without overt “affirmative consent” by both partners.
• Offensive Touching—touching someone in a manner that is construed as sexual without their permission.
• Unwanted Sexual Advances—unwelcome gestures intended for sexual favor or gratification, especially those that are physical or aggressive in nature.
• Sexual Assault, Battery, or Coercion—includes any form of unwanted or forced sexual contact, with or without penetration. (Rape falls under this definition as forced sexual penetration.)
• Dating Violence—violence committed against a person with whom you're in an intimate or dating relationship.
• Sexually suggestive jokes, catcalls, or innuendos.
• Sexist or Derogatory Remarks—making comments against another person that are demeaning, insulting, sexist, gender-related, or stereotypical.
• Gender-Based Bullying—acts of bullying that are directly or indirectly related to gender or sexual orientation may fall under Title IX enforcement.
• Electronic Communications Sexual Harassment—using electronic communications to convey demeaning or sexually offensive comments, images, etc., either sent directly to the victim or others about the victim. Examples of electronic communications include text messages, email, social media, blogs, video chat, etc.
• Voyeurism—the practice of obtaining sexual gratification through observing others, generally without their express permission. Voyeurism is a form of sexual exploitation.
• Unauthorized Photo/Video—the act of capturing and disseminating explicit images, audio, or videos of another person without their consent.

What Goes into a Title IX Investigation?

Title IX rules require schools to investigate and address any allegations of sexual misconduct. In today's digital world, negative information can be spread quickly and widely. Title IX coordinators must ensure that everyone has access to the guidelines and procedures of the institution.

The Title IX investigation does not include any legal or criminal probes such as those by local law enforcement looking into possible criminal charges. The school's investigation only aims to determine whether there was a Title IX violation and not to determine if the allegations constitute a criminal offense.

Reporting Deadlines and Institutional Response

At most American colleges and universities, there is no "statute of limitations" to speak of that would limit when Title IX complaints or allegations can be filed. (Some complaints have even been filed years after the alleged victim left the school.) These schools may be concerned about possible pushback from the complainant, students aligned to complainants' interests on campus, as well as interest groups that advocate for Title IX campus sexual assault policies that favor respondent rights at the expense of complainants.

That said, a few schools do have a reporting deadline for Title IX complaints—generally within 3-6 months after the alleged incident occurs. Even schools with a reporting deadline often have a disclaimer in their policy for any complaints received after that deadline if the claimant can show good cause.

Reporting deadlines for schools should not be confused with the complaint deadlines of the Department of Education Office of Civil Rights (DOE-OCR), the governmental body that oversees Title IX compliance for schools, colleges, and other institutions that receive federal education funding. A claimant may choose to file a complaint with the DOE-OCR if they are charging the school itself with Title IX discrimination or if they feel the school hasn't adequately addressed their complaints of sexual misconduct. Complaints regarding sexual discrimination must be filed no later than 180 days following any incident unless they can show good cause to have this restriction waived.

Notification to All Parties

The Title IX coordinator must first notify all affected parties that there is an open investigation into a Title IX complaint. The notification will include:

• A written summary that contains details about the misconduct allegations that form the basis of the complaint
• An overview of the school's policies which the alleged actions have violated
• A list of fundamental rights to which all parties are entitled
• Name and contact information for those responsible for the investigation, as well as any department or individual that may be contacted by a party regarding grievances
• If applicable, the time and date of any scheduled events related to the investigation

Individuals who are notified they are accused of a Title IX complaint are encouraged to consult an attorney familiar with this area of law. It is important to act quickly to obtain advisory representation to ensure sufficient preparation time.

Determining Interim Measures

The coordinator will evaluate whether interim measures are appropriate. In cases where the complainant and respondent may come across each other in daily life, the coordinator might issue a "no contact" order, which prohibits communication between the parties. Other possible interim actions may include changing campus housing arrangements or modifying class schedules.

Gathering Evidence and Scheduling the Initial Interview

The Title IX investigator will begin compiling evidence relevant to the complaint. Text messages, voice messages, emails, and interviews with relevant witnesses may are all possible examples of evidence.

Next, the investigator will schedule an initial interview (also called an intake meeting) with both the complainant and the respondent separately. This is where you can present statements and respond to questions. You must bring all documentation and contact information for any witnesses whom you wish to testify. If you have an attorney-advisor, they will be permitted to be present during this interview to help you.

Schools have some freedom in the development of their processes, but federal guidelines stress the importance of setting up a fair and equitable investigation that gives both sides equal access to information. Schools must ensure that there are no actual or reasonably perceived conflicts of interest in the proceedings.

Options for Informal Resolution

In certain cases, an institution might accept an informal resolution of the complaint provided both parties consent to it. Mediation is often used to assist the parties in reaching an amicable resolution. An attorney-advisor can be quite instrumental in helping you negotiate an informal resolution as an alternative to more severe penalties.

Formal Hearing

In cases proceeding according to the formal Title IX standard process, schools may summon all parties as well as their advisors to a hearing. Hearings are not trials, and they are not meant to imitate them. During the Trump administration, the Department of Education amended the rules to require Title IX hearings to be open hearings with opening/closing statements, witness testimony, and cross-examination of any witnesses who wanted their testimony included in consideration. However, the Biden administration has suspended this rule pending further review, so complainants and respondents are no longer required to submit to cross-examination. Schools have more freedom to determine their own best policies and rules for hearings.

Written Summary and Possible Sanctions

The Title IX investigator must provide a written summary of the investigation to all parties involved. If the investigation finds the respondent responsible for the violation, sanctions and penalties will likely be imposed. If the investigation proceeds to this stage and the investigator finds the accused committed the violation, the penalty is usually suspension or expulsion from the school.

Appeals

While it is not required, most schools allow parties to appeal decisions before they become final. Most institutions require notification of an intent to appeal within a reasonable time. A Title IX attorney-advisor can assist you in this process.

What Do I Need To Know About the Title IX Disciplinary Process at My University or College?

Colleges and universities have different procedures for investigating Title IX complaints against respondents. These differences can have a profound impact on how a Title IX case is investigated and resolved. A respondent facing Title IX charges should first familiarize himself with the Title IX disciplinary procedures and policies of their school. These policies are usually published in the school's student manual, code of conduct, and/or other Title IX provisions. You should review these policies and procedures to learn about: 1) the rights and obligations of a respondent at that school; and 2) the limits on due process at that school.

Investigation Models

Most schools will implement one of two models for conducting a Title IX investigation: the traditional disciplinary hearing model and the investigator model. An accused student should learn which model their school uses so they will have a better understanding of how the disciplinary process will go.

Let's look at both of these models more closely:

With the traditional disciplinary hearing system, the investigation is conducted independently from the adjudication phase. These schools will often have an investigation conducted by campus police, public security, an appointed investigator or team of investigators, or a combination of these. If the investigation uncovers sufficient evidence to support Title IX charges, the respondent can request a hearing before a panel or adjudicator. This will allow live witnesses to testify and allow for evidence to be presented. A hearing panel or hearing officer will decide whether a respondent is guilty and impose any sanctions.

With the investigator model, a school employee or an outside investigator (or even a team of investigators) will conduct the Title IX investigation. They review the evidence, interview the complainant, respondent, and witnesses, and weigh the credibility of the witnesses. At some schools, the investigator or investigators themselves will make determinations as to responsibility, and if a respondent is found responsible, will impose the penalty or sanction as they believe appropriate. At other schools, the investigator or investigators will make the determination regarding responsibility and the case would subsequently be assigned to someone else, or even a panel, to impose sanctions when applicable. A few schools use a blended model where an investigator makes recommendations about findings, responsibility, sanctions and then submits them to another person, a dean, for example, or a panel for acceptance or rejection.

How Do Title IX Rules Apply to High Schools and Grade Schools?

Title IX protections cover all educational facilities that receive federal funding--and that includes K-12 schools. However, the rules regarding hearings work a bit differently for those accused of Title IX violations at the grade school/high school level. For institutes of higher learning (e.g., colleges and universities), there must be an official hearing to address Title IX complaints. For K-12 schools, the hearing process is optional. All the more reason why students accused of Title IX sexual harassment/assault in high schools or grade schools (and their parents) should have an attorney-advisor helping to guide them through the investigation and disciplinary process.

Will the School Automatically Believe the Complainant in Title IX Cases?

Not necessarily. Because Title IX is designed to protect the complainant, the process is often skewed to favor the complainant's point of view, putting the accused at a disadvantage. However, if the respondent is diligent in defending himself and taking the appropriate steps to respond, the school is more apt to weigh the respondent's testimony more heavily. While schools are pressured to protect the victims under Title IX, they can also be subject to legal liability if they handle Title IX cases unfairly. Colleges and universities attempt to avoid lawsuits by respondents and complainants, so a respondent who prepares a compelling response is more likely to prevail, especially if they have been unfairly accused. This is another reason why the help of an attorney-advisor can be so useful.

What Sanctions Are Possible in a Title IX Case?

While there are some exceptions, Title IX sanctions for students who are found guilty of sexual misconduct, even those with lesser charges like stalking and sexual harassment, are almost always severe. Students found to have committed sexual misconduct frequently face suspension or expulsion. Students and parents should be aware of the long-term consequences of these sanctions. Schools that are already under scrutiny due to federal Title IX investigations or negative publicity from past events, for example, could be more likely to impose severe sanctions for even the "lesser" Title IX charges.

Potential Collateral Consequences for Students Accused or Found Guilty of Title IX Violations

A student who is accused of sexual misconduct may deal with numerous difficulties if found guilty—and even during the investigation itself. The most common collateral consequences include the following:

Restrictions and Limitations from Interim Measures

The administration can implement interim measures at the start of the Title IX disciplinary process. These are usually issued for the safety and protection of the victim (complainant). One common interim measure is a "no-contact" order, which prohibits further communication or contact between the parties. An order prohibiting contact is similar in nature to a protective or restraining order commonly used in domestic violence cases. A student respondent may be restricted from being within close proximity of the complainant by the provisions of the order. A no-contact order can limit the respondent's ability to participate in student organizations on campus, in social membership in fraternities or sororities, in athletic participation, etc. Sometimes, a no-contact order can even hinder the respondent from attending certain classes in order to avoid the complainant.

Suspension or Dismissal

If the school determines that the respondent did commit a Title IX violation, it will often result in the accused being immediately suspended or dismissed from the school. Students could lose all academic credit during the current semester, as well as money already paid for tuition, food, and housing. Students who were employed at the university when the sanctions were imposed are unlikely to be eligible for continued employment. Other consequences include losing eligibility for financial aid, merit scholarships, and athletic scholarships.

Notation on the Student's Academic Record

Many schools will put a notation on the student's academic record regarding the sexual misconduct and the penalty. This notation may remain for several years or indefinitely in many cases. A student who is seeking to continue their education at another school might have difficulty getting admitted due to their past disciplinary records.

Students may also have problems with other applications that require them to disclose prior discipline infractions. Many graduate programs, including medical school and law school, may require the student to sign a written authorization to waive any privacy rights that would prevent disclosure. A student who refuses to give access to transcripts or student records for these educational programs, internships, or employment opportunities is less likely to get admitted or hired.

Can I Appeal a Title IX Decision?

Title IX doesn't require colleges or universities to give either the complainant or respondent the right to appeal (although many schools do). However, the Office of Civil Rights of the Department of Education (DOE-OCR) requires that both respondents and complainants receive equal relief when Title IX appeals are offered by schools.

The DOE-OCR recommends that Title IX appeals be used if there is a procedural error or previously unavailable evidence that could have a significant impact on the outcome of the case. Respondents must be aware that appeals often have very strict, short deadlines, sometimes only a few days after receiving notification of the Title IX decision.

To maintain Title IX compliance, schools that offer an appeals process must provide equal access that is fair for both sides, and the review process must be the exact same regardless of whether the respondent or complainant has filed the appeal. For example, if a college or university the respondent to appeal a suspension based upon the finding, they must also permit the complainant to appeal the suspension based upon the finding.

Sometimes, the appeals process can be complex, and there may even be times when an appeal is not the best solution. An experienced attorney-advisor can help you determine the best course of action when considering filing a Title IX appeal.

How Can an Attorney-Advisor Assist With Title IX Disciplinary Matters?

Title IX cases can be both complicated and intimidating, especially for the student who is accused of sexual misconduct. Without expert advice and help, an accused student could easily be suspended or dismissed before even understanding the best way to defend against the complaint.

Attorneys can't typically function in an official capacity in these cases because you're not on trial. However, an attorney can serve you in an advisory role. A skilled attorney-advisor can help at numerous points during a Title IX case—from helping you gather evidence and witnesses to refute the accusations to counseling you on how to conduct yourself during the process to cross examining the complainant and witnesses at a hearing. Here's what a good attorney-advisor will bring to the table.

Comprehensive Knowledge of Title IX Process

An experienced attorney-advisor will have a solid working knowledge of Title IX procedures at the respondent's school and the federal and state laws and regulations that govern them. Title IX legislation was created to ensure that schools investigate sexual assault claims. Federal and state law promise that both the accuser and the accused are entitled to certain protections during these processes. Students should receive more protections for more serious offenses, but unfortunately, in Title IX, the accused may lose their primary rights to cross-examine their accuser. An experienced attorney can help you maximize your chances of obtaining a fair hearing of your case.

In-depth Investigative Skills

An attorney-advisor can be a great help during the investigation process. Most college students have very little or no experience in investigating cases, but a lawyer who has been through the process many times will have the trial experience that enables them to assess the evidence and witnesses in ways a student isn't equipped to do. The attorney-advisor can help you gather the evidence that you need to present a case that fully defends your good name and refutes the allegations.

Increased Accountability for the School

Having a legal professional as an advisor will help ensure that the college or university follows its rules and regulations during any process. Schools have sometimes been accused of destroying evidence in sexual assault and harassment cases to prevent the accused from having a fair hearing. Attorneys who act as advisors often send a "litigation hold" letter to schools and colleges stating their role in the case. They warn that the school may be sued if they refuse to preserve evidence or abide by any other regulations. Indirectly, the presence of an attorney sends a message to the college or university that you are prepared to fight for their rights.

What to Do if You Are Accused of Title IX Sexual Misconduct

You need to understand that the moment you are notified of accusations against you of sexual misconduct, you are at a disadvantage—even if you have been falsely accused and are completely innocent of the claims. The Title IX process tends to favor the alleged victim's rights over yours, and the standard of proof is usually far beneath “innocent until proven guilty.” In fact, most schools can find you guilty if there is only a 50 percent or greater probability that you did it. Add the fact that most college students have no idea how to navigate the school's disciplinary process, and you can see how much jeopardy you could be facing by going it alone. These steps can help you avoid severe consequences and protect your future.

Get in touch immediately with an experienced attorney-advisor.

Your chances of surviving the disciplinary process will be much greater if you have a competent legal advisor who has dealt with similar cases. Your advisor will guide you through the process and protect both your rights and your reputation.

Gather evidence to support your case.

Do not assume the school has the burden of proof or that you will be exonerated just because you are innocent. Begin right away to gather whatever evidence you can find to support your defense—especially considering sometimes schools destroy the evidence prematurely.

Use witnesses.

If your defense comes down to your word against the complainant, you will probably lose because Title IX tends to favor the accuser. Choosing witnesses who can back up your defense can be invaluable toward exonerating you.

Be careful what you say during the investigation.

During the hearing and investigation, you must be alert. Even seemingly innocent statements made to the wrong people can cause you further complications. Avoid discussing details of the investigation with anyone else, as their hearsay could be used against you. You should also avoid posting on social media or texting others about the case, as any information you post could also be used against you.

Attorney-Advisor for Title IX Cases

Remember, with Title IX cases, even seemingly minor offenses of sexual harassment or misconduct could result in suspension or expulsion. There's simply too much at stake for you to go it alone. New Jersey defense attorney Joseph D. Lento has helped hundreds of students navigate Title IX disciplinary cases with great success in New Jersey and across the United States—and as an experienced criminal defense attorney, he can also help in the rare situation where a Title IX offense also results in New Jersey criminal charges. Take steps today to protect your reputation and your future. Call the Lento Law Firm at 888-535-3686 to see how we can help.