Title IX Regulations and Sexual Misconduct Allegations

What parents and students need to know about Title IX and Sexual Misconduct allegation’s at college

When a student is accused of sexual misconduct on a college campus the process of reviewing that allegation is often dictated by a law known as “Title IX.” Because the law and its interpretation have controlled the manner in which colleges and universities address sexual allegations, it is important to have a basic understanding of the history of the law and how it has impacted the policies and procedures in higher education.

What is Title IX?

Title IX was passed in 1972 as an amendment to several Federal Education Laws. The original text is as follows:

“No person in the United States shall, based on 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.”

The purpose of the Law was to protect students from discrimination on the basis of sex in a college setting. The Law applies to any college that receives Federal Funding and most Colleges and Universities fall within the Law.

How is Title IX used in Sexual Misconduct complaints on College Campuses?

Colleges and Universities subject to Title IX must investigate and address allegations of sexual harassment and misconduct consistently with the Department of Education – Office of Civil Rights (“OCR”) policies and procedures.

In 1997, the OCR first published standards for investigations and enforcement of sexual harassment matters with respect to Title IX. Those standards have been revised, notably in 2011 when the Office of Civil Rights incorporated sexual violence into the manner of sexual harassment prohibited by Title IX. In 2017 the Office of Civil Rights again began to modify procedures which went into effect on August 14, 2020.

What Are the Current Title IX Policies and Procedures?

Generally, the 2020 Title IX revisions provided significant changes to the manner in which colleges and universities must address allegations of sexual misconduct.

First, it redefined Sexual Harassment to include quid pro quo harassment, unwelcome conduct that is so severe, pervasive, and objectively offensive that it denied a person equal educational access and any instance of sexual assault, dating violence, domestic violence, or stalking.

Second, the OCR expanded the definition of “education program or activity,” including any building owned or controlled by a student organization officially recognized by the school, such as a fraternity or sorority.

Third, the OCR specified the standard of proof at Title IX hearings, requiring allegations to be proven by at least a preponderance of evidence standard (meaning more likely true than not true). Finally, the OCR now requires significant due process protections, including the Right to a live hearing, cross-examination, and the right to an advisor (attorney).

What Would be a Violation of Title IX?

There are various ways an individual or institution can violate Title IX regulations. If a respondent in a Title IX complaint is found responsible they may face penalties that negatively impact their future.

Title IX violations can include:

• Gender discrimination
• Gender identity discrimination covered by Title VII
• Gender-based bullying
• Discrimination due to pregnancy
• Sexual Misconduct including rape, sexual assault, or sexual coercion
• Stalking
• Domestic violence
• Housing discrimination
• Hostile environment
• Retaliation
• Failure to address Federal Title IX guidelines

Penalties for Title IX Violations

As mentioned earlier, a Title IX violation can lead to very serious consequences. For this reason, it is important to have an attorney experienced in Title IX hearings and defense to stand by you during the hearings to try and protect your future.

Penalties for Title IX violations can include:

• Verbal or written warnings
• Formal letter of apology
• Relocation to a different residence hall
• Counseling
• Restitution to the alleged victim
• Revocation of a scholarship
• Suspension
• Expulsion
• Termination of employment
• Termination of tenure
• Revocation of a degree
• Withholding of a degree
• Potential criminal charges

Top Five (5) Mistakes Parents Make Following a College Sexual Misconduct Allegation

What you need to know about Title IX and how to avoid making a bad situation worse

The sense of pride and accomplishment that accompanies sending your child off to college can be shattered in an instant when an allegation of sexual misconduct is leveled by a college or university.

We’ve met with too many parents who tearfully recall getting a frantic phone call from their panicked child pleading for help after being informed that an investigation has been initiated. The college disciplinary process is complex and a student accused of sexual misconduct is not entitled to the same protections as a defendant in a criminal case.

Every parent wants the best for their child, but even well-meaning parents can make mistakes in this situation.

Here are five (5) common mistakes we hear from parents during an initial consultation:

“My child wasn’t arrested. How serious can this be???”

There is a misconception that when law enforcement has not contacted a student the allegation is not serious. This is a mistake.

First, law enforcement may be investigating the allegation without your knowledge. Often, they will interview witnesses in secret and wait long periods of time before arresting a suspect. Sometimes they will wait for forensic laboratory tests to be completed before taking action.

Second, even if the police are not meaningfully investigating the allegation, any statement made by your child during the college’s investigation may be used at a later point should a law enforcement decide to pursue the matter. The Statute of Limitations for sexual allegations can enable police to bring charges years after an incident.

Finally, even if the police tell you or your child that they are not investigating or prosecuting a case that may not necessarily be true. Police are allowed to lie to suspects. Also, many times the police who investigate the allegation don’t make the final decision and a prosecutor can order that charges be brought.

“My Child Told Me This Is No Big Deal; They Didn’t Do Anything Wrong and He Can Handle It Without My Help.”

Many students believe that they are perfectly capable of defending themselves in a college disciplinary investigation and hearing. Many of those same students have sat in my office with their parents after they have been expelled asking me what they can do to change the result, after the fact.

A negative ruling in a Title IX matter can have serious consequences. Even the smartest college student is likely unfamiliar with the rules, procedure, and strategy involved in an investigation. The stakes are too high to take chances.

“I spoke to the College and they were very nice. I’m sure they will be fair.”

Most college administrators are pleasant and professional but that doesn’t necessarily mean they will be part of the decision when it comes to a hearing to determine whether your son committed an act of sexual misconduct.

Most colleges conduct a hearing before a board that is composed of staff and students you likely have not met. Sometimes an outside fact-finder, such as a retired Judge, will decide the case.

Moreover, the college may have its own interests and concerns (such as public perception) that may dictate the tenor of the investigation and proceedings. It is a mistake to assume that your son will receive a fair hearing without aggressive representation.

“I Pay Too Much in Tuition. The College Won’t Want to Lose the Money So They Will Never Expel My Child.”

We understand that today college is more expensive than a shore house. However, whatever money you pay the college pales in comparison to the money the college receives in financial aid from the Federal Government. If the college does not comply with Title IX regulations they place considerable funds at risk.

They will absolutely prioritize federal funds over your tuition money. Also, the college would likely seek to avoid any public perception of being friendly to “sexual predators.” Don’t assume your tuition payments will save you or your child.

“My Neighbor/cousin/friend’s Child Went Through the Same Thing and Everything Turned Out Fine. This Isn’t That Big a Deal.”

This is a common false belief. Some people assume that similar cases always come to similar results. This is just not true – and especially true in college hearings. First, not all colleges treat cases the same. A Rutgers Student may go through a very different experience than a Princeton or Harvard Student.

Second, even two students at the same school may have different hearing panels or different investigators. This can lead to different results. Finally, every case really is different. The details matter and often even factual differences that may seem minor on their face can produce different results at a hearing.

The most important mistake that parents make is failing to retain competent and aggressive counsel to champion their son or daughter’s case. The Attorneys at Rosenberg | Perry & Associates have successfully defended Title IX sexual misconduct cases and our staff includes three (3) former prosecutors.

What Should I Do if My Child Is Alleged to Have Engaged in Sexual Misconduct?

Don’t take any chances with your child’s future. Our firm has successfully represented students accused of sexual misconduct at Colleges and Universities to ensure their names were cleared. Our Title IX lawyers are composed of a team of former prosecutors that will help you navigate the complex rules and legal issues surrounding a Title IX investigation. Contact Rosenberg | Perry & Associates, LLC for a free consultation on your child’s case.