July 19, 2022
“Title IX” – referring to a specific section of the Education Amendments of 1972 which applies to any school or education program that receives federal funds – is an often misunderstood and somewhat complex area of law, and the shorthand of “Title IX” has come to refer to a number of related but often distinct legal concepts and processes.
Title IX may be most known in the public consciousness for the requirement that colleges and universities receiving federal funds provide equality in men and women’s athletic programs, but it also prohibits educational institutions from discriminating against students and employees on the basis of sex, which includes a requirement that educational institutions effectively address allegations of sexual assault, e.g., that such schools effectively investigate and discipline students or faculty members accused of sexually assaulting or harassing others.
Because Title IX requires educational institutions to take investigative and disciplinary measures, and the federal government itself (via the OCR) may investigate and penalize an educational institution for failing to fulfill its obligations pursuant to Title IX, the term Title IX proceeding or action might be used to describe either a proceeding by the school itself or by the federal government. In either case, defendants facing such proceedings are advised to work with experienced outside counsel in addressing such challenges.
Schools Have Mandated Obligations Under Title IX
Again, any school or other educational institution receiving federal funds (which is defined broadly) has mandatory obligations pursuant to Title IX to implement procedures to address discrimination and harassment, and to properly investigate and respond to complaints of alleged violative action, whether the source of that action is school administrators, faculty members or the students themselves.
Such mandatory obligations pursuant to the requirements of Title IX include:
- A school must promptly and effectively respond to reports of sexual harassment or violence, and thus take immediate action to eliminate the sexual harassment or violence, prevent it from occuring again, and address its effects. This is true even if an alleged victim does not file a complaint, but the school has reason to know of the underlying facts. Furthermore, a criminal investigation into the same behavior does not relieve a school of these obligations.
- A school must publish and make widely available policies regarding Title IX policies.
- A school must designate a “Title IX Coordinator” whose obligation is to coordinate the school’s compliance with Title IX requirements, and notify all students and employees of that person’s contact information.
- A school must adopt and publish grievance procedures for students to file complaints of sex discrimination, including sexual harassment and violence, and all such procedures must provide for prompt and equitable resolution of complaints.
- A school must provide a complainant with specific procedural rights, including the ability to present evidence of their complaints, and to receive notification of the school’s investigations into their complaints.
What Is The Office For Civil Rights (OCR)?
The U.S. Department of Education’s Office for Civil Rights (OCR) has the responsibility for enforcing the requirements of Title IX that schools receiving federal funding not engage in discriminatory practices on the basis of sex. Again, this includes, among other things, the requirements that such educational institutions provide gender fairness in athletics, not discriminate on the basis of gender in hiring and admissions policies and practices, and effectively respond to complaints of sexual harassment, discrimination, and sexual violence.
Examples of recent enforcement actions pursued by the OCR against educational institutions include:
- Harvard University: The OCR determined that Harvard Law School’s “current and prior sexual harassment policies and procedures failed to comply with Title IX’s requirements for prompt and equitable response to complaints of sexual harassment and sexual assault; the Law School did not ensure that individuals implementing the policies and procedures were adequately trained; and the Law School improperly used a ‘clear and convincing’ evidence standard of proof in its Title IX grievance procedures in violation of Title IX.” A a result of the investigation, OCR reached an agreement with Harvard to, among other things, revise its sexual harassment policies, including notifying complainants of their right to file a Title IX complaint with the law school, and reviewing any complaints within previous years to determine whether remedies were necessary for the complainants.
- Chicago Public Schools: The OCR determined that the Chicago public school system did not “effectively accommodate the interests and abilities of members of both sexes to the extent necessary to provide equal athletic opportunity.” To resolve the issue, the OCR entered into an agreement with the school system to, among other things, provide more participation opportunities for female students, including adding new sports and levels of competition, and implementing processes in the school system to reduce discrimination.
Title IX Enforcement by Schools
Because the federal government not only requires compliance with Title IX but also investigates alleged failures to comply, educational institutions are under intense pressure to conduct Title IX investigations and enforcement proceedings of their own when allegations of discrimination and/or sexual harassment and violence arise. Additionally, school administrators can often face significant political and cultural pressure from within their own school to aggressively pursue allegations regarding discrimination, harassment and violence. For example, students and faculty members often will pressure administrators to take swift action against alleged perpetrators of such acts when allegations arise, regardless of the sufficiency of the underlying evidence supporting such claims and the procedural safeguards in place regarding fairness towards those accused.
An important point to note, and a key source of controversy in recent years, is that a school pursuing a Title IX proceeding against a student or faculty member is not required to provide the same level of due process and protections that a person would necessarily receive in the criminal justice system. For example, an accused student does not necessarily have the right to an attorney, is not protected by the same rules regarding what types of evidence might be used against them, may not be able to appeal an adverse disciplinary proceeding as they would in the court system, and may not be sufficiently informed of the evidence and allegations made against them.
And while a school does not have similar powers to a criminal court in, for example, sentencing a student or faculty member to a jail or prison sentence, the consequences of an adverse Title IX proceeding by a school may nonetheless be significantly damaging to the student or faculty member. For example, a student may face expulsion, loss of fees and tuition, inability to transfer to a new school, long-term financial and reputational losses, and the possibility of a civil suit based on the adverse Title IX outcome. Thus, students and faculty members facing Title IX proceedings by a school are encouraged to work with experienced outside counsel to defend their rights in such proceedings.
Addressing Title IX Investigations By an Educational Institution or the OCR
If you or a member of your family is facing or may potentially be facing the prospect of a Title IX disciplinary proceeding based on allegations of sexual misconduct, professional misconduct, academic misconduct, code of conduct violations related to drug or alcohol use, discrimination, or other violations, it is important to take decisive action to protect your interests. Furthemore, an educational institution facing the possibility of a Title IX enforcement proceeding by the OCR is strongly advised to retain the best possible counsel to proactively address such proceedings and mitigate negative legal and reputational consequences that may follow.
The attorneys of Zweiback, Fiset & Coleman understand the stress, anxiety, and fear that comes with a Title IX disciplinary proceeding – or even the threat of such a hearing – and we provide zealous counsel and representation to help our clients avoid negative outcomes and move on with their lives. If you or a family member are facing an academic disciplinary proceeding, or if your educational institution is facing the possibility of an OCR enforcement proceeding, contact our office to speak with an experienced defense attorney regarding your situation today.