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Title IX is a federal law that was initially designed, as part of the Education Amendments passed in 1972, to protect individuals from gender bias. It was initially intended, among other things, to ensure equal opportunities for individuals in athletics and school admissions. As a result, more doors have been opened to women—the statute has enabled more women to enter colleges and universities and to take advantage of higher educational opportunities.
As Title IX entrenched itself into the American academic culture starting in 1972, young women began to have other women as role models, and the rest is history.
Supreme Court Justice Ruth Bader Ginsburg’s educational experience was wrought with battles for gender equality. Although she graduated at the top of her class from Cornell University, she met with gender discrimination throughout her entire educational career. Along with the other seven female students in her class of over 500 at Harvard Law, she was constantly reminded they were displacing other qualified males. In 2017, women made up 33 percent of Harvard’s 554 graduate students. One can’t help but think this change is due, at least in part, to Title IX.
The High Cost Of Non-Compliance
The ultimate penalty for non-compliance with Title IX regulations is the withdrawal of federal funds, including monies earmarked for student loans. At the end of the fourth quarter of 2018, 42.9 million borrowers owed $1.4392 trillion. With this much money at stake, colleges and universities across the country are paying close attention to the mandates of Title IX.
Title IX Violations Are All Encompassing
Title IX applies to:
- Students
- Faculty
- Administrative staff
- Vendors doing business at the institution
- Other full and part-time employees
Violations may include scenarios such as:
- Gender bias in athletic programs
- Assault and sexual misconduct
- Rape
- Stalking
- Relationship violence
- Sexual coercion
- Housing discrimination
- Gender bias in the workplace
- Sexually motivated verbal and non-verbal conduct
- Discrimination against pregnant or parenting students
- Creating a hostile educational environment
OCR Enforces Title IX
Title IX regulations are enforced and investigated by the U.S. Department of Education Office for Civil Rights (“OCR”). Complaints against a school can be filed with OCR. OCR investigates a school’s failure to eliminate discrimination in the following types of issues:
- Athletic programs
- Sexual harassment
- Within science, technology, engineering, and math (STEM) programs
- Pregnancy and parenting issues
- Retaliation
- Bullying
- Stalking
- Relationship violence
- A disparity in pay based on gender
Under Title IX, educational facilities can also be held liable in court if it is determined that the institution knew about but failed to address sexual harassment or sexual misconduct issues in any programs or activities sponsored by the school.
The School Has Mandated Obligations Under Title IX
As soon as a school is made aware of possible misconduct, harassment, violence, or discrimination, immediate action should be taken to:
- Determine what happened
- End sexual violence
- Prevent its recurrence
- Address its effects
- Protect the complainant
- Provide a grievance procedure
In addition to filings at OCR or in court, complaints can be made through a school’s internal disciplinary grievance procedure. In those proceedings, the question of sexual misconduct can become a complicated situation, especially when one party alleges nonconsensual sexual activity and the other claims the sexual activity was voluntary.
Consent at colleges typically means there was no force, coercion, or intimidation by either party and most schools apply an affirmative consent standard, meaning that there must be affirmative conduct (words or physical conduct) for each stage of sexual activity and consent for one act does not mean consent for another. Additionally, the addition of impairment from drugs or alcohol can add another layer of complexity to the issue.
A Title IX investigation can involve a fact-finding investigation and frequently a hearing. The purpose of this is to determine if the alleged incident in question involved any form of recognized misconduct. The institution’s Title IX compliance coordinator is charged with ensuring the investigation or hearing is both prompt and impartial and the complainant and the respondent are given the same rights.
Although a private defense attorney’s role is limited in a school’s internal Title IX investigation, if you are accused of misconduct, hiring an experienced Title IX lawyer has definite benefits. Typically you can expect a private lawyer to investigate before the hearing on your behalf, prepare you for the questions you may be asked, advise you as to the best way you should respond to the panel’s questions, and stand with you to ensure you are being treated as fairly and equally whether as a complainant or respondent.
If a respondent is found responsible for violating any Title IX mandates, penalties may include:
- A verbal or written warning
- Disciplinary probation
- A change of residence halls
- Suspension for a designated period of time
- Expulsion from school
- A change in a job position
- Loss of employment
- Loss of tenure
- A requirement to seek counseling
- Restitution
- Loss of scholarships
- The requirement of a formal letter of apology
- Revocation or withholding of a degree
Defending Against an Accusation Can Be Stressful
Both students and faculty alike can feel overwhelmed at the possibility of having to defend themselves against an accusation of discrimination or sexual misconduct. Most will find that their daily academic and professional responsibilities are severely disrupted while they attempt to gather evidence, locate witnesses, and prepare a defense strategy.
In the court of public opinion presumption of guilt is highly likely when someone is publicly accused of misconduct and preconceived notions can be extremely hard to overcome. We can not stress enough the importance of hiring a Title IX attorney if you are the victim of, or being accused of, a Title IX violation.
Contact Nesenoff & Miltenberg, LLP at (212) 736-4500 today and tell us how we can help you. Our highly experienced Title IX and Conduct Code attorneys stand ready to stand with you during complicated and frightening situations that may impact your reputation, your profession, and your ability to continue your education.
