TITLE IX – SEX OFFENSES IN COLLEGES AND UNIVERSITIES
What is Title IX
Title IX, 20 U.S.C. § 1681(a), states, “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, a landmark federal civil right law prohibits sex discrimination in education. Title IX is not just about sports; it is a prohibition against sex- based discrimination in education. It addresses discrimination against pregnant and parenting students and women in STEM (science, technology, engineering, and math) programs. It also addresses sexual harassment, gender-based discrimination, and sexual violence. Sexual violence includes attempted or completed rape or sexual assault, as well as sexual harassment, stalking, voyeurism, exhibitionism, verbal or physical sexuality-based threats or abuse, and intimate partner violence.
Title IX does not apply to female students only. Title IX protects any person from sex-based discrimination, regardless of their real or perceived sex, gender identity, and/or gender expression. Female, male, and gender non-conforming students, faculty, and staff are protected from any sex- based discrimination, harassment or violence.
Title IX Prohibits Sex Discrimination
The school must be proactive in ensuring that the campus is free of sex discrimination. Schools must take immediate steps to address any sex discrimination, sexual harassment or sexual violence on campus to prevent it from affecting students further. If a school knows or reasonably should know about discrimination, harassment or violence that is creating a “hostile environment” for any student, it must act to eliminate it, remedy the harm caused and prevent its recurrence.
Schools may not discourage accusers from continuing their education, such as telling them to “take time off” or forcing them to quit a team, club or class. An accuser has the right to remain on campus.
Title IX Requires an Established Complaint Procedure
Schools must have an established procedure for handling complaints of sex discrimination, sexual harassment or sexual violence. Every school must have a Title IX Coordinator who manages complaints. The Coordinator’s contact information should be publicly accessible on the school’s website. If a complaint is filed, the school must promptly investigate it regardless of whether the incident is reported to the police (though a police investigation may very briefly delay the school’s investigation if law enforcement is gathering evidence).
A school may not wait for the conclusion of a criminal proceeding and should conclude its own investigation within a semester’s time (the 2011 Office for Civil Rights Title IX guidance proposes 60 days as an appropriate time-frame).
The school should use a “preponderance of the evidence” standard to determine the outcome of a complaint, meaning discipline should result if it is more likely than not that discrimination, harassment and/or violence occurred. The final decision should be provided to the accuser and the accused in writing. Both have the right to appeal the decision.
Title IX Requires the School to Protect the Accuser
The school must take immediate action to ensure a accuser can continue their education free of ongoing sex discrimination, sexual harassment or sexual violence. Along with issuing a no contact directive to the accused, schools must ensure that any reasonable changes to the accused’s housing, class or sports schedule, campus job, or extracurricular activity and clubs are made to ensure the accused can continue his or her education free from ongoing sex discrimination, sexual harassment or sexual violence.
These arrangements can occur before a formal complaint, investigation, hearing, or final decision is made regarding the complaint. It also can continue after the entire process since the accused has a right to an education free of sex-based discrimination, harassment or violence.
Additionally, these accommodations should not over-burden accusers or limit his or her educational opportunities; instead, schools can require the accused to likewise change some school activities or classes to ensure no ongoing hostile educational environment exists.
Title IX Prohibits Retaliation against the Accuser
The school may not retaliate against someone filing a complaint and must keep an accuser safe from other retaliatory harassment or behavior. Schools must address complaints of sex discrimination, sexual harassment and sexual violence. As part of this obligation they can issue a no contact directive or make other accommodations to ensure the accused or a third party does not retaliate for any complaint. Additionally, the school may not take adverse action against the accuser for their complaint. Any retaliation can and should be reported in a formal Title IX complaint to the U.S. Department of Education.
Title IX Permits a No Contact Directive Against the Accused
The school can issue a no contact directive under Title IX to prevent the accused student from approaching or interacting with the accuser.
When necessary for student safety, schools can issue a no contact directive preventing an accused student from directly or indirectly contacting or interacting with you. Campus security or police can and should enforce such directives. This is not a court-issued restraining order, but a school should provide you with information on how to obtain such an order and facilitate that process if you choose to pursue it.
Title IX Prohibits Encouraging or Allowing Mediation
In cases of sexual violence, the school is prohibited from encouraging or allowing mediation (rather than a formal hearing) of the complaint. The 2011 Title IX Guidance clearly prohibits schools from allowing mediation between an accused student and an accuser in sexual violence cases. However, they may still offer such an alternative process for other types of complaints, such as sexual harassment. Schools are discouraged from allowing the accused to question the accuser during a hearing.
Title IX Prohibits the Accused From Bearing Costs of Accommodations
The school should not make the accused pay the costs of certain accommodations that the accused needs to continue the accused’s education after experiencing violence. If the accused needs counseling, tutoring, changes to campus housing, or other remedies in order to continue the accused’s education, the school should provide these at no cost to the accused. If the school fails to take prompt and effective steps to eliminate the violence and prevent its recurrence, the school may be required to reimburse lost tuition and related expenses.
Formal Complaint with U.S. Dept. Of Education
Any student may file a formal Title IX complaint with the U.S. Department of Education or seek legal counsel to enforce the student’s right to education under Title IX.