Title IX is a set of federal regulations governing how almost all schools and colleges in the United States have to respond to allegations of sexual assault, sexual harassment, and sex-based discrimination. It can be challenging to understand the quickly changing regulations, school policies, and federal statutes that are part of Title IX. Title IX provides rights to both the person who suffered the misconduct and the person accused, but many schools are not familiar with how to go through the Title IX process properly to protect the rights of those involved.
Whether you are the victim of Title IX misconduct (complainant) or the person accused (respondent), the process of going through a Title IX case can be overwhelming and scary. If you have Title IX concerns, working with a Title IX lawyer right away can help position your case in the best possible light. If you would like help connecting with a Title IX attorney, message the Title IX Law Team for help connecting with an attorney who can help.
A federal civil rights law, Title IX makes discrimination or misconduct based on sex unlawful in any educational setting where an institution receives federal funding. It applies to most schools, both public and private, from kindergarten through college. Even though it’s often associated with equity in athletic programs, Title IX also provides rules for how all schools and colleges respond to allegations of sex discrimination, sexual harassment, and sexual assault within their community.
Title IX laws apply to students, staff, and faculty. Both the person accused and the victim of the misconduct are provided rights under Title IX, which have evolved since Title IX was first enacted. Many schools struggle to keep up with the requirements under Title IX, which can result in the parties on both sides being mistreated.
Nearly all schools receive federal funding, which means schools from kindergarten to post-graduate university programs must follow Title IX’s requirements. Private schools typically receive federal funding in the form of federal financial aid packages, student loans, or other federal programming. As a result, Title IX applies to the vast majority of public and private elementary, middle, and high schools, as well as universities. A small number of private schools, usually religious schools, do not receive any federal funding at all and do not need to follow Title IX’s processes. However, even those schools that are not covered by Title IX generally follow some procedure similar to a Title IX investigation and decision-making process.
In short, Title IX applies to any of the following types of incidents within a school or college’s programming or on campus:
According to national statistics, one person is sexually assaulted every 74 seconds in the United States, and school campuses are not immune from allegations of assaults. Sexual assault Title IX cases are particularly stressful for both parties because of the risk that schools will sweep allegations under the rug, on one hand, or that schools will jump to conclusions without sufficient proof, on the other hand. Sexual assault cases almost always raise the possibility of a parallel criminal case, which adds an additional level of complication for both sides as they proceed through the school’s Title IX investigation.
While Title IX regulates how schools respond to allegations of misconduct on campus and in their programs, schools also have unique policies for students and staff that cover more than Title IX misconduct. That means that an investigation into sex-based misconduct often involves both Title IX and the school’s own employee or student handbook. For employees who are part of a Title IX case, union or tenure rules may also play a role in the process.
If you’ve been the victim of a Title IX violation, it’s imperative to ensure your initial complaint is made correctly. Working with an experienced Title IX attorney is a good idea because what you put in your initial complaint will determine the direction of the entire case. Additionally, you will be interviewed by the Title IX investigator and possibly by police in addition to submitting your formal complaint to the Title IX office. What happens at the outset determines the strength of the case for both sides.
If you’ve received a Notice of Investigation or Notice of Allegation informing you that you are being investigated for a Title IX violation, then a Title IX attorney can help you prepare to speak with the investigator and tell your side of the story. Respondents in Title IX cases need to be especially aware of the potential for a criminal investigation in addition to the school’s investigation. As the respondent, don’t try to wing it. There is a lot at stake: expulsion, suspension, withholding of your degree, and termination from employment are all on the table as potential sanctions in every Title IX case.
Whether you are the complainant or respondent, a Title IX lawyer can ensure your school or college follows the steps required by Title IX laws and that you are provided all the rights the process guarantees. Additionally, a Title IX lawyer on your side will help you think strategically about your case, make sure your statements are useful and compelling in terms of the policies being evaluated, and that you are supported throughout the stress of the process.
Both an accused person and a complainant are provided a variety of rights under Title IX, including:
Since Title IX laws have changed significantly over the years, many educational institutions are not always fully compliant. An experienced Title IX attorney can help complainants and respondents receive all the rights they are entitled to under the Title IX laws, even (and especially) if the school is not familiar with the process enough to provide those rights.
Unfortunately, people who report discrimination or harassment under Title IX often face adverse treatment just for filing a complaint. The same goes for people accused of Title IX violations who assert their innocence and go through the entire process to defend themselves.
Unlawful retaliation against students (either complainants or respondents) as a result of the Title IX process might include, for example:
Students can be removed from campus during a Title IX case on an emergency basis, but only if the school goes through a process to determine there is an immediate threat that cannot be mitigated by other measures. Otherwise, Title IX does not permit schools to take any punitive or disciplinary measures against students during the pendency of a Title IX investigation.
Employees may experience adverse retaliatory actions for participating in or reporting a Title IX violation, including:
Staff are often placed on administrative leave during a Title IX investigation.
For the respondent, or the person accused in a Title IX investigation, it’s important to understand your rights—including the right to formal notice of a complaint and the presumption that you have not committed any wrongful act unless proven otherwise at the conclusion of the full Title IX process. Once a formal complaint has been made, schools must begin an investigation and the decision-making process, unless the complainant and the school both agree to some kind of informal process instead. Informal resolution is not allowed in cases where the respondent is a staff member and the complainant is a student.
A Title IX attorney can help respondents defend themselves against the allegations, identify evidence in their favor, and address the risk of a criminal conviction during the process.
A person making a Title IX claim against someone is called the “complainant” or “claimant.” As a Title IX complainant or claimant, you have rights and available options for reporting harassment or discrimination. Your school is required to respond promptly and effectively to your allegations. You are entitled to have an advisor at every stage of the process, which can be crucial for ensuring your complaint and initial interview are full, complete, and not subject to scrutiny for inconsistencies later. You also have the right to request “supportive measures” from the school, which can be any reasonable accommodations the school might be able to provide, such as a change in schedule, a no-contact order, counseling, or excused absences.
Complainants also have the right to request that the school not start a formal Title IX investigation or go through the formal process and that they use an informal process instead. However, depending on the severity or scope of the conduct reported, the school may take it upon themselves to file a formal complaint and go through the full formal process anyway.
Both parties have the right to decide how much, if at all, to participate throughout the process. However, if a complainant decides not to participate, the chances of a finding against the respondent may be limited.
If the complainant or school wants to proceed with a formal Title IX case, the school will take the complainant’s initial report and turn it into a formal complaint. Both sides will then be notified in writing of the Notice of Allegations, or Notice of Investigation. Whether you are the complainant or respondent, an attorney can help you file or respond to a complaint and navigate the Title IX investigation so that your side of the story is heard and accurately conveyed to the decision-maker.
For both parties, what you say during your initial statements will almost always drive the likelihood of success in the entire case. Complainants who fail to include key details or who add or change information later will be scrutinized for inconsistencies. Respondents who provide poorly thought-out initial statements can open themselves up to expulsion, termination, or even criminal prosecution for false or exaggerated accusations against them.
With any formal Title IX violation allegations, an investigation will take place. During an investigation, statements are obtained from both sides, as well as any witnesses, and evidence is gathered. The burden to collect evidence is on the school, not the parties. However, the investigator often needs direction from the parties in terms of what evidence to collect, and a Title IX advisor may need to push back on the investigator for determining that certain evidence is relevant or not relevant. The investigator may be someone within the school or an outside investigator hired by the school, but it must be someone who is neutral and unbiased—otherwise, the decision can be challenged on appeal.
There is no set timeline for a Title IX investigation. Usually, schools aim to complete the process in 90 days, but it often takes longer. The investigator has to offer both parties the opportunity to be interviewed, interview other potential witnesses, collect evidence, and prepare a formal written report. Then, both parties have the opportunity to respond to the written report, and the investigator will accept or reject that feedback in creating the final report. The final report then goes to the decision-maker, who cannot also be the investigator.
If the school’s process requires a hearing (usually at the college level only), then a hearing will be held after the report is finalized.
A Title IX hearing is similar to a trial in many ways. The decision-maker presides over the hearing, either alone or as part of a panel of decision-makers (usually three people). The complainant and respondent appear with their advisors. Most Title IX hearings are held over video conference, but some schools conduct them in person. The hearing officer has broad leeway in deciding how to run the hearing, as long as it complies with the school’s parameters and Title IX. Sometimes hearing officers will permit opening and closing statements by the parties. Sometimes they will limit the amount of time each party can question witnesses.
The advisors are the only ones who can ask questions of the witnesses at the hearing. The complainant and respondent may not question witnesses, which avoids the uncomfortable situation of the parties questioning each other. The advisors question witnesses and help the parties prepare, but the courtroom rules of evidence do not apply, and there are no rules against hearsay. The hearing officer will determine after each question whether or not it is relevant and whether the witness should answer it. A witness can decline to answer anything they don’t want to, and the hearing officer can take that into consideration. There cannot be any questions about irrelevant prior sexual acts; the parties’ character; or privileged communication such as with a doctor, counselor, or attorney.
Witness participation in a Title IX hearing or investigation is voluntary, and there is no subpoena power to compel witnesses to participate. This means that the parties often do not know for certain which witnesses will appear at the hearing until the day of the hearing. Witnesses appear in the hearing only for the time that they are offering their testimony and responding to questions by the parties’ advisors and the hearing panel. They do not hear any other part of the hearing, and they leave the hearing when their testimony is over.
Once the hearing concludes, the hearing panel will convene in private to determine the case outcome. The final decision will be issued in a written opinion, usually about four to six weeks after the hearing. The decision outlines the contested points and which points were sustained by a “preponderance of the evidence.” The decision will determine whether or not a Title IX or other violation occurred.
Both parties have the right to decide the decision in a Title IX case, whether or not there was a hearing. Grounds for appeal are limited, and the parties cannot simply dispute the hearing officer’s decision because they disagree with it. Appeals must be based on (1) bias on the part of the hearing officer, investigator, or Title IX Coordinator; (2) a procedural irregularity that affected the outcome of the case; or (3) new evidence that was not available at the time of the hearing. Some schools will also include other grounds for appeal, such as the sanction being disproportionate to the offense.
The appeal will be decided by someone who was not the investigator or the decision-maker. Once the appeal officer issues a decision, the decision is final. The only way to change the decision is through a successful OCR complaint, EEOC complaint, or civil lawsuit.
If you’ve been accused of a violation or if you’re the victim or survivor of Title IX misconduct, having an attorney by your side can prove essential during an investigation and hearing. For complainants, continued trauma, injustice, and being disbelieved are real risks in all Title IX cases. For respondents, expulsion, suspension, and employment termination are at stake and can have a devastating impact on future education and career prospects. For both parties, the process can be complex to navigate, especially when the school either doesn’t understand or doesn’t follow the Title IX process.
An experienced Title IX lawyer can:
Title IX is a specialized area of the law, and most attorneys are not familiar with Title IX or its requirements. Please contact us to help you connect with an experienced Title IX attorney who can help. We have nationwide reach with Title IX attorneys who handle cases in all 50 states.
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