Title IX is a federal civil rights law enacted as part of the Education Amendments of 1972. Title IX prohibits discrimination on the basis of sex in education programs and activities in all public and private elementary and secondary schools, school districts, colleges, and universities that receive any federal funds. “Discrimination on the basis of sex” includes sexual harassment or sexual violence/misconduct, such as rape, sexual assault, or sexual coercion.
Title IX requires schools to adopt and publish grievance procedures for students and employees to file complaints of sex discrimination, including allegations of sexual harassment or sexual misconduct. Schools use general disciplinary procedures to address complaints of sex discrimination, and all procedures must provide for prompt and equitable resolution of complaints which includes affording certain rights to the accused party known as the “respondent.”
Basic Rights of the Accused in a Title IX Case
Below is a summary of the rights a respondent is entitled to as part of a Title IX proceeding in the event they’ve been accused of sexual discrimination or sexual misconduct:
- The right to choose and retain an advisor or support person. This individual can be at the side of the accused throughout the Title IX process, including at meetings with investigators and any hearings that take place. Such person can be an attorney.
- The right to be promptly notified of any accusations involving a Title IX violation.
- The right to a prompt, impartial, and equitable investigation. This can potentially include participating in an in-person interview and/or providing a written statement, or choosing not to participate in an interview with an investigator whatsoever – especially if there are risks of criminal liability.
- The right to be treated with dignity and respect throughout the process.
- The right to privacy and confidentiality as permitted by law.
- The right to present evidence and witnesses as part of a defense. Such evidence can include text messages, emails, photos, social media posts, and other electronic evidence.
- The right to review the report compiled by the investigator before it’s finalized and sent to the hearing board/decisionmaker. Changes can be requested if any inaccuracies or errors are found.
- The right to a live hearing before a hearing board/decision maker where an accuser can be cross examined by respondent or respondent’s advisor. However, the hearing board does not have subpoena power (cannot compel a witness to attend), no oath is administered, and generally there are no opening statements, closing arguments or objections allowed to be made by the respondent’s advisor.
- In evaluating the parties’ evidence, a school must use the preponderance of the evidence standard of proof unless the school uses the clear and convincing evidence standard in all other comparable proceedings, including proceedings relating to other discrimination complaints, in which case the school may use that standard in determining whether sex discrimination/misconduct occurred. The lower burden of preponderance of the evidence means that school officials only need to prove a respondent’s actions violated an institution’s policies by a finding of 51% or greater.
- The right to appeal any findings or sanctions issued in favor of the complainant.
Right to Informal Resolution
As an option to resolve a complaint of sexual discrimination and harassment, including sexual misconduct, the parties (in certain circumstances) have the right to resolve a filed Title IX complaint through Informal Resolution (“IR”). IR is a voluntary resolution process using administrative resolution to resolve an alleged violation in lieu of an investigation and hearing. In other words, IR is a mutually agreed upon settlement. Title IX Coordinators, investigators, decisionmakers, and facilitators of an informal resolution process must not have a conflict of interest or bias for or against complainants or respondents.
Rights Under the New Revised Title IX Rules
On April 19, 2024, President Biden issued amendments to existing Title IX rules that may impact the rights of a respondent in the future. The biggest change that could potentially impact an accused’s rights is the Single Investigator Model. During the grievance process, schools will now have the discretion to utilize the single investigator model where the decisionmaker may be the same person as the Title IX Coordinator or investigator. This creates a variety of concerns related to conflict of interest or bias. Schools are to implement this new rule by August 1, 2024.
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Contact a Title IX Attorney to Protect Your Rights
Working with an experienced Title IX defense attorney as early as possible in the process is critical in identifying shortfalls in procedural due process and disciplinary procedures effecting a respondent’s rights. The Title IX defense attorneys at Berry Law can analyze your institution’s Title IX procedures and help ensure you receive fundamental fairness and your rights to due process throughout the entire Title IX process. Please contact us so that we may review your Title IX case and advise you of your rights.
