What You Need To Know About Title IX

THIS PAGE HAS BEEN UPDATED
based on a MAJOR POLICY UPDATE on September 22, 2017

How has Title IX Changed Under the Trump Administration?

In September 2017, Secretary of Education Betsy Devos withdrew the Office of Civil Rights (OCR) 2011 Dear Colleague Letter and 2014 Questions and Answers (Q&A) that provided significant rights to survivors, and issued her own 2017 Q&A.

Most notably, the 2017 Q&A:

  • Abandons the previously required 60-day time frame for investigations. Instead, no specific time frame is recommended. Schools must make a “good faith effort to conduct a fair, impartial investigation in a timely manner”;
  • Permits schools to choose between the preponderance of the evidence or clear and convincing standard. However, “the standard of evidence for evaluating a claim of sexual misconduct should be consistent with the standard the school applies in other misconduct cases”;
  • No longer requires the rights of both parties to appeal. Schools can choose to provide no appeal, appeals only to the accused, or to both parties;
  • States that “gag orders” (restricting the ability of either party from discussing the investigation) are inequitable;
  • Authorizes cross examination. The accused may now directly cross examine the accuser/survivor so long as the accuser/survivor also has that right;
  • Interim measures “may be appropriate” but are not required. If they are provided, they must be available to the accused and the survivor;
  • Demands schools provide written notice to the accused and sufficient time to prepare before conducting any interview.

The 2017 Q&A is a placeholder document that will be used to provide guidance to schools on Title IX while the agency drafts a new guidance/standard through the rulemaking process. This process will include public notice and comment.


What is Sexual Harassment?

Sexual harassment is a form of sex discrimination prohibited by Title IX and Title IV. Sexual harassment is unwelcome conduct of a sexual nature and can include unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature, such as sexual assault or acts of sexual violence. Sexual harassment is more broadly defined as “any unwelcome conduct of a sexual nature.”

What is Sexual Violence?

Sexual violence refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent (due to age, use of drugs or alcohol, or because of an intellectual or other disability). Sexual violence includes rape, sexual assault, sexual battery, sexual abuse, and sexual coercion. School employees, other students, or third parties can carry out the violence.

What is a School’s Responsibility under Title IX?

The standard for administrative enforcement of Title IX and in court cases where plaintiffs are seeking injunctive relief is whether:

  1. the alleged conduct is sufficiently serious to limit or deny a student’s ability to participate in or benefit from the school’s educational program (creates a hostile environment); and
  2. the school, upon notice, fails to take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects

The school has notice of sexual violence if a responsible employee knew, or in the exercise of reasonable care should have known, about the sexual violence. The school can receive notice in several ways. Some examples of notice include: a student filing a grievance, an individual (student, parent, or friend) reporting an incident, or a responsible employee witnessing the event. It also can indirectly receive notice from a member of the local community, on a social networking site, or from the media.

Additionally, notice may be imputed onto the school if the pervasiveness of sexual violence is “widespread, openly practiced, or well-known among students.” The school is required to take prompt and effective corrective action in these instances.

Public awareness events, such as “Take Back the Night,” are not considered notice to the school for the purpose of triggering individual investigation. However, the Department of Education does recommend that schools provide information at these events on how to file a Title IX complaint.

In private lawsuits for monetary damages, the school must have had actual knowledge of the conduct and act with deliberate indifference. Under Title IX and its regulations, as well as under Title IV, once a university has actual or constructive notice of possible sexual harassment of students, it is responsible for determining what occurred and responding appropriately. When a university fails to take adequate steps to address harassment, it is held liable under Title IX and Title IV for its own conduct.

What is a Hostile Environment?

To determine whether a hostile environment based on sex exists, the United States Department of Education considers whether there was harassing conduct that was sufficiently serious—that is, sufficiently severe or pervasive—to deny or limit a student’s ability to participate in or benefit from the school’s program based on sex. In determining whether the conduct created a hostile environment, they must consider how a reasonable person in the victim’s position would feel. The more severe the conduct, the less need there is to show a repetitive series of incidents. A single instance of rape is sufficiently severe to create a hostile environment.

Under Title IX’s administrative enforcement standard and Title IV’s injunctive relief standard, “severe or pervasive” sexual harassment can establish a hostile environment that a university must remedy and prevent from recurring.

How must a School Respond to Sexual Harassment?

When a school knows, or reasonably should know, of possible sexual violence, it must take immediate and appropriate action to investigate and determine what occurred. If sexual violence occurred that created a hostile environment, the school must take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, and, as appropriate, remedy its effects. In all cases, however, the college or university must conduct a prompt, thorough, and impartial inquiry designed to reliably determine what occurred.

A school may take interim measures during the investigation of the complaint. In doing so, a school should provide interim measures to both the accused and the survivor/accuser. Interim measures include counseling, extensions of time or other course-related adjustments, modifications of work or class schedules, campus escort services, restrictions on contact between the parties, changes in work or housing locations, leave of absence, increased security and monitoring or certain areas of campus.

The school must also take steps to prevent the harassment from recurring, including disciplining the harasser where appropriate. A series of escalating consequences may be necessary if the initial steps are ineffective in stopping the harassment.

Does Title IX Protect International and Undocumented Students?

Yes. Title IX protects all students attending institutions in the United States that are recipients of federal funds, regardless of national origin, international status, or citizenship status.

What about Involving Law Enforcement?

A school should notify students of the right to file a criminal complaint with law enforcement and should not dissuade a student from doing so. Title IX does not require a school to report incidents of sexual violence to law enforcement. However, schools may be required to report to law enforcement under other local, state or federal law. A university’s Title IX investigation is different from any law enforcement investigation, and a law enforcement investigation does not relieve the university of its independent Title IX obligation to investigate the conduct.

Criminal investigations are initiated at the discretion of law enforcement but a school’s duty to investigate under Title IX is NOT discretionary.

A school may need to temporarily delay its fact-finding portion of the investigation while the police are gathering evidence, but during this delay it must take immediate interim measures to protect the student in the educational setting. A school should not wait for the conclusion of a criminal investigation or criminal proceeding to begin its own Title IX investigation.

These duties are a university’s responsibility, regardless of whether a student has complained, asked the university to take action, or identified the harassment as a form of discrimination.

Does Title IX Protect Students from Retaliation?

A university or college’s grievance procedures for handling discrimination complaints must comply with the prompt and equitable requirements of Title IX.

To ensure students can invoke these grievance procedures without fear of reprisal, Title IX also prohibits the university and others, including students, from retaliating against any individual “for the purpose of interfering with any right or privilege secured by [Title IX],” or because that individual “has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” under Title IX.

Prohibited retaliatory acts include intimidation, threats, coercion, or discrimination against any such individual.

Schools therefore should take steps to prevent any retaliation against a student who makes a complaint or any student who provides information regarding the complaint. At a minimum, under Title IX and Title IV, the school must ensure that complainants and their parents, if appropriate, know how to report any subsequent problems, and should follow up with complainants to determine whether any retaliation or new incidents of harassment have occurred.

What is a “Prompt and Equitable” Grievance or Disciplinary Procedure?

OCR has identified a number of elements in evaluating whether a school’s grievance procedures are prompt and equitable, including whether the school

  • provides notice of the school’s grievance procedures, including how to file a complaint, to students, parents of elementary and secondary school students, and employees;
  • applies the grievance procedures to complaints filed by students or on their behalf alleging sexual misconduct carried out by employees, other students, or third parties;
  • ensures an adequate, reliable, and impartial investigation of complaints, including the opportunity to present witnesses and other evidence;
  • designates and follows a reasonably prompt time frame for major stages of the complaint process;
  • notifies the parties of the outcome of the complaint; and
  • provides assurance that the school will take steps to prevent recurrence of sexual misconduct and to remedy its discriminatory effects, as appropriate.

How must a School Conduct its Grievance or Disciplinary Procedures?

The 2017 OCR Q&A provides several procedures a school must comply with under Title IX. These include:

  • Once it decides to open an investigation that may lead to disciplinary action against the responding party, a school should provide written notice to the responding party of the allegations constituting a potential violation of the school’s sexual misconduct policy, including sufficient details and with sufficient time to prepare a response before any initial interview. Sufficient details include the identities of the parties involved, the specific section of the code of conduct allegedly violated, the precise conduct allegedly constituting the potential violation, and the date and location of the alleged incident.
  • Each party should receive written notice in advance of any interview or hearing with sufficient time to prepare for meaningful participation.
  • The reporting and responding parties and appropriate officials must have timely and equal access to any information that will be used during informal and formal disciplinary meetings and hearings. The parties should have the opportunity to respond to the report in writing in advance of the decision of responsibility and/or at a live hearing to decide responsibility.
  • Any process made available to one party in the adjudication procedure should be made equally available to the other party (for example, the right to have an attorney or other advisor present and/or participate in an interview or hearing; the right to cross-examine parties and witnesses or to submit questions to be asked of parties and witnesses).
  • The investigator(s), or separate decision-maker(s), with or without a hearing, must make findings of fact and conclusions as to whether the facts support a finding of responsibility for violation of the school’s sexual misconduct policy. If the complaint presented more than a single allegation of misconduct, a decision should be reached separately as to each allegation of misconduct. The findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.
  • The investigation should result in a written report summarizing the relevant exculpatory and inculpatory evidence.
  • In addition, both the accused and the victim must receive a written determination.
  • If a school allows an attorney or advocate to be present, it must do so for both parties.
  • Schools are not required to provide for appeals. If they do allow appeals, they may allow only the accused to appeal or both parties.

The Office of Civil Rights does not require that a school allow the student to be present for the entire hearing. However, if the school allows on party to be present for the entirety of the hearing, it must do so equally.

Additionally, the school must not require a student to be present at the hearing as a prerequisite to proceed with the hearing.

Even if a victim does not want to continue to participate in the investigation, a college or university is nonetheless obligated to conduct and conclude an adequate, reliable investigation and, as appropriate, take steps to remedy the effects of any harassment, and prevent it from recurring. Such steps can included, for example, offering counseling services and implementing other measures, independent of disciplinary action, that could assist victims and/or address sexual assaults on the campus at large.

Even if a victim agrees with the outcome of any grievance or disciplinary procedure, once a university determines that a student has committed sexual assault or harassment, it should carefully assess the facts to determine if leaving the student on campus while expulsion is pursued will fail to eliminate the hostile environment for the victim and/or leave other students at risk of assault or harassment.

May the Student’s Sexual History be Introduced at Hearings?

Questioning the student’s sexual history with anyone other than the alleged perpetrator should NOT be permitted. Additionally, the mere fact of a current or previous dating or sexual relationship does not imply consent or preclude a finding of sexual violence.

What Standard of Evidence does a School need to use in its Grievance or Disciplinary Proceedings?

The OCR 2017 Q&A now allows schools to choose which standard of evidence to apply. They may apply the preponderance of the evidence standard or “clear and convincing.” The standard of evidence for evaluating a claim of sexual misconduct should be consistent with the standard the school applies in other student misconduct cases.

Under Title IX, school officials involved in investigating or evaluating allegations of sexual harassment, including members of any school grievance or disciplinary body, must be trained specific to matters that are common in sexual assault cases. This includes matters relating to consent, the use of force, the handling of forensic evidence, how to assess victim responses to sexual assault, and how to assess credibility, how to evaluate evidence, and the appropriate evidentiary standard to assess it.

What about Sexual Harassment that occurs Off Campus?

A school must determine if the alleged off-campus sexual violence occurred in the context of a school activity or educational program. If so, the school must treat the complaint in the same way as a complaint involving on-campus conduct.

Is Confidentiality Guaranteed?

While the Title IX coordinator, or other responsible school designee, should make every effort to respect a request for confidentiality, it is not guaranteed. The Title IX coordinator, or other responsible school designee, should evaluate the request in the context of the school’s responsibility to provide a safe and nondiscriminatory environment for all students. If the school determines that it must override the request for confidentiality to meet its Title IX obligations, the information should only be shared with individuals who are responsible for handling the school’s response to incidents of sexual violence.

Additionally, even if the student does not specifically ask for confidentiality, the school should only disclose the information to individuals who are responsible for handling the school’s response. A request for confidentiality and a refusal to initiate formal action by the student does not relieve the school if its duty to provide interim measures to the student (such as a no contact order or changing class schedules) and take steps to prevent recurrence (such as increased security).

However, confidentiality is guaranteed if the incident is discussed with campus mental-health counselors, pastoral counselors, social workers, psychologists, health center employees, and persons with professional license requiring confidentiality, or person supervised by such a person. These professionals may only share the incident if the student gives consent. Individuals who work or volunteer at on-campus sexual assault centers, victim advocacy offices, women’s centers, or health centers, including front desk staff and students, are also not required to report incidents of sexual violence in a way that identifies the student unless the student gives consent.

What must a School do to Protect Someone Who Files a Complaint under Title IX?

A university must take immediate steps to protect the complainant from further harassment prior to the completion of the Title IX and Title IV investigation/resolution. Appropriate steps may include separating the accused harasser and the complainant, providing counseling for the complainant and/or harasser, and/or taking disciplinary action against the harasser.

Other actions may also be necessary to address the educational environment, including special training, the dissemination of information about how to report sexual harassment, new policies, and other steps designed to clearly communicate the message that the college or university does not tolerate, and will be responsive to any reports of, sexual harassment.

What is a Title IX Coordinator?

The Title IX regulation, 34 C.F.R. § 106.8(a), requires that a university designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under Title IX. All students and employees must be notified of the name (or title), office address, email address, and telephone number of the designated Title IX Coordinator(s). The Title IX Coordinator(s) must have adequate training on what constitutes sexual harassment, including sexual violence, and understand how the grievance procedures operate.

How do I Report Sexual Harassment?

Students are often unclear about where they need to report incidents of sexual assault to trigger a University investigation.

In one case a student who reported being sexually assaulted mistakenly thought her interactions with the university’s health center and Sexual Assault Resource Center constituted reporting to the University for Title IX investigative purposes. Reports to health care or counseling services are confidential and will not initiate a Title IX investigation.

In another case, a student thought the university would investigate her sexual assault complaint because the police told her that they had informed a university coach about the police report she filed accusing student athletes on the coach’s team. The student assumed that she did not need to file an additional complaint with the university because the police had notified a university employee. A report to law enforcement—even campus police or security—does not necessarily trigger a Title IX investigation.

In order to make a proper report of sexual harassment, victims must file notice with their school’s Title IX coordinator in each and every case.


Q&A on Campus Sexual Misconduct (September 2017) NEW

Q&A on Campus Sexual Misconduct (September 2017) <span style="color: red;">NEW</span>

Questions and Answers on Title IX and Sexual Violence (April 2014) RESCINDED

Questions and Answers on Title IX and Sexual Violence (April 2014) <span style="color: red;">RESCINDED</span>

Dear Colleague Letter (April 2011) RESCINDED

Dear Colleague Letter (April 2011) <span style="color: red;">RESCINDED</span>

Dear Colleague Letter (January 2006) RESTORED

Dear Colleague Letter (January 2006) <span style="color: red;">RESTORED</span>

Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (January 2001) RESTORED

Revised Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (January 2001) <span style="color: red;">RESTORED</span>

Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties (March 1997)

Office-for-Civil-Rights-Sexual-Harassment-Guidance-Harassment-of-Students-by-Sc

Dear Colleague Letter (April 2015)

colleague-201504-title-ix-coordinators

U.S. Department of Education Office for Civil Rights: Case Processing Manual (February 2015)

OCR-Case-Processing-Manual

Not Alone: The First Report of the White House Task Force to Protect Students from Sexual Assault (April 2014)

White-House-Task-Force-Report-April-2014

Joint Guidance on the Application of the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to Student Records (November 2008)

FERPA-HIPAA-Guidance

Harassment and Bullying in School (October 2010)

Harassment-and-Bullying

Davis v. Monroe County Board of Education, 526 U.S. 629 (1999)

Davis

For full details about this case visit The Oyez Project


Gebser v. Lago Vista Independent School Dist., 524 U.S. 274 (1998)

Gebser

For full details about this case visit The Oyez Project


Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992)

Franklin

For full details about this case visit The Oyez Project

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James R. Marsh
A University of Michigan Law School graduate, James represents victims of campus sexual assault and rape; Title IX violations; sex abuse in schools, colleges, churches, and government and military institutions; online sexual exploitation; child pornography; sextortion, and revenge porn. His case on compensation for victims of child pornography in federal criminal restitution proceedings was recently decided by the United States Supreme Court. That case, United States v. Paroline, led to the Amy and Vicky Child Pornography Victim Restitution Improvement Act currently pending in the House and Senate. James founded the nationally recognized Children's Law Center in Washington, DC, and is an experienced trial attorney, and frequent commentator, lecturer, and Huffington Post Blogger. He now leads Marsh Law Firm in New York which is recognized worldwide for its work helping sexually abused survivors obtain justice and rebuild their lives with dignity and respect.

9 Comments

  • shell May 14, 2016 (6:30 am)

    This is such a joke. Universities, like the recent cases at Mormon schools in Utah and my own experience in New York State, use their disciplinary procedures — often taking disciplinary action against a student who reports a sexual harassment situation — to intimidate and silence students who file a complaint. When I reported that a professor’s inappropriate behavior was making me uncomfortable to the chair of my department, she told me the incident had to be reported, which she did, to the Associate Dean of Students, while simultaneously taking disciplinary action against me for violating the professor’s right to express his opinions without fear of harassment by a student holding a contradictory opinion. Later, when I filed a formal complaint, this disciplinary charge against me was used to threaten me with expulsion if I did not drop my complaint. The sad thing is that both the New York State Division of Human Rights and the New York OCR/Dept of Education are fully aware that colleges in the New York City area have linked their disciplinary and harassment procedures for the purpose of intimidating students who file complaints. And when I was systematically retaliated against, both by faculty and other graduate students, the university did absolutely nothing — except encourage it.

  • charles simpson August 8, 2016 (5:52 pm)

    Do NOT make reports at the state level! Notify the federal Dept of Education OCR

  • Maribeth Adams September 23, 2016 (9:47 am)

    This is a “kangaroo hearing” as my son was falsely accused by another male student, the so call victim had no evidence, my son had evidence that should of found him innocent instead my son is found guilty because it was known and told by the victim that my son is “gay and has been in recovery for many years”. I can’t believe that our government allows this as the hearing officers, Title IX coordinator was the most biased individuals I have ever met. Then the title IX coordinators does not tape the interview with the victim or the accuser instead she wanted my son to base his defense by her “perception”. WHAT?!!!!

  • Regan Molatore October 16, 2017 (4:27 pm)

    Most often these matters end with discipline in the form of expulsion. What happens to a Title IX claim in a University if either the claimant or the accused were to withdraw from the school before a decision is made? Does the Title IX action and investigation continue? Is there jurisdiction if a party to the claim is no longer attending the school?

    • James R. Marsh
      James R. Marsh October 16, 2017 (11:07 pm)

      This is a tricky question. In general, the Title IX investigation will continue and jurisdiction does not end if the alleged perpetrator leaves campus. Title IX continues to focus on the complainant and whether or not he or she experienced a violation of Title IX. In terms of sanctioning, the issue gets murky. Technically if a student has withdrawn or otherwise separated from the institution, there is no way to expel, suspend, or otherwise discipline him or her. In some states, there could be a notation on the offending student’s transcript, but in many other jurisdictions, academic transcripts are just that—academic—and do not include disciplinary information. Although any factual finding might be included in an offending student’s disciplinary file, it presumably won’t be much of a sanction if that student is already enrolled in and attending another institution. Great question, difficult answers.

      • Lucy Who? October 17, 2017 (8:23 am)

        Of course, you are taking about STUDENTS who have been accused of a violation. What about students who FILE complaints as the victim? In my experience, the bullying, harassment, and intimidation that I experienced in my program after I filed a complaint did NOT stop when I was forced out of my graduate program in that university. When I went to other graduate programs, I faced the same intimidating and harassing behavior. I faced it also in internships that I did after leaving the university. I have been blacklisted by the university at other colleges and with employers and even with organizations that I have attempted to join just for hobbies/recreation.
        I have been receiving harassing calls from people affiliated with the professor against whom I filed a complaint since 2010. I know all too well how Rose McGowan and Harvey Weinstein’s other victims feel. In my experience, Title IX is a joke; it is a way to protect professors who systematically abuse their power to exploit their (often) female students.

    • Lucy Who? October 17, 2017 (8:06 am)

      When I filed a complaint with my school, I was bullied, harassed, and intimidated by other graduate students and faculty. So, my guess is that if you are forced out of your academic program before the investigation is completed, then the investigation is probably dropped. Same probably holds if you file through a state agency. I filed with my state as well, and when I finally spoke with a state investigator (nearly a year after I filed), she seemed shocked that I was still enrolled in my program. They did continue to harass me during that year. But after the investigation was completed by my college, I was threatened with expulsion if the Dean sent the results to the Office of the President of the College. So, under threat of expulsion, I dropped my complaint. At my school the disciplinary and sexual harassment procedures are linked, so if you go to the chair of your department and complain, the chair reports the incident, as required by university policy, but reports it to the Dean of Students Office, who take disciplinary action against YOU for 1) interfering with the educational mission of the university and 2) for violating the professor’s right to express his opinion without fear of harassment from a student holding a contradictory opinion. Those charges are then used to threaten you with expulsion if you proceed with a harassment and/or retaliation complaint. And because I dropped my complaint, when my school was investigated by the Dept. of Education, my case was not included in that investigation because my documents had been destroyed — because I had dropped my complaint! They forgot to mention the threat of expulsion being the reason I dropped it in the first place!

    • Lucy Who? October 17, 2017 (8:09 am)

      Which will also not do you much good. Even the OCR/Dept of Ed will require a student to provide a degree of proof of a claim that is impossible for a student to provide — unless the student has legal representation and enough grounds to justify subpoenaing the university. Otherwise, students not wealthy enough to hire attorneys are out of luck. No justice for the poor. Your rights exist on paper only.

  • Regan Molatore October 18, 2017 (1:22 pm)

    Thank you for your response and thoughts on the matter.

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