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TITLE IX and SCHOOL MISCONDUCT CASES – Springstead Bartish Borgula and Lynch

Schools, colleges, and universities all have a process for dealing with misconduct by students and employees. Allegations of misconduct that violate school policy can range from student handbook violations to civil infractions, and from harassment to sexual assault. Students and employees who are accused or investigated in a school misconduct case have a right to an attorney to guide and advocate for them through the process. Although a school disciplinary process is not a criminal case, an experienced criminal defense attorney who understands school misconduct policies, Title IX laws, and effective advocacy can present critical evidence and arguments to defend the person accused.

The consequences of violating school conduct policies can range from a warning or probation to suspension, expulsion, or termination of employment. In some cases, law enforcement might become involved. Navigating the process alone can be daunting and overwhelming. We routinely represent and assist people facing school disciplinary action.

What Is Title IX?

School conduct cases having to do with sexual harassment and sexual assault are often referred to as “Title IX” cases. Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., is a federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities. It applies to both public and private schools, from the elementary level through universities. It 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.” Its interpretation has been expanded to cover sexual assault, sexual harassment, and other types of sex and gender-related discrimination and misconduct at schools of all levels.

In 1998 and 1999, the United States Supreme Court published two decisions that paved the way for today’s current legal debate concerning the scope of Title IX. In Gebser v. Lago Vista Independent School District and Davis v. Monroe County Board of Education, the justices held that any school receiving federal money can be held liable for sexual harassment of students by their teachers or peers only if it (1) had “actual knowledge” of the misconduct and (2) responded with “deliberate indifference.” This was a high bar. Many criticized that the Court’s decisions in Gebser and Davis made it too easy for schools to avoid responsibility for addressing sexual misconduct and too hard for victims (complainants) to succeed in their claim. (The victim is called the “complainant” in Title IX cases. The person accused is called the “respondent.”)

In 2011, the Obama Administration re-addressed Title IX and sought to create a new paradigm for sexual harassment regulation, especially on college campuses. The Administration made policy changes through the Office of Civil Rights, but the changes were not written into law. They were distributed instead to schools through what is known as a “Dear Colleague” letter, which required schools to comply with the guidance or risk losing federal funding. The goal of the new guidance was to change college culture so that the administration better addressed and more thoroughly investigated sex-related misconduct.

The Dear Colleague letter expanded the definition of sexual harassment to include non-physical conduct, such as making sexual comments, jokes, or gestures, spreading sexual rumors, and creating websites or sending emails of a sexual nature. It instructed hearing officers to decide cases of sexual harassment not “beyond a reasonable doubt,” like a criminal case, but by a “preponderance of evidence” standard — meaning hearing officers did not need to be convinced that an incident occurred but only that the allegations are more likely true than not.

Many sexual assault advocacy groups praised the Title IX policies implemented through the 2011 Dear Colleague letter for encouraging more victims to come forward and causing schools to react more seriously to complaints. On the other hand, many legal groups — including the American Civil Liberties Union (ACLU), American Bar Association, and law professors — voiced concerns that the policies provided only limited due process rights and First Amendment protections to the staff and students accused.

In 2020, the Department of Education spearheaded official legal changes to Title IX. The revised law changed the definition of “sexual harassment” to include: a “school employee conditioning education benefits on participation in unwelcome sexual conduct”; “unwelcome conduct that a reasonable person would determine is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the school’s education program or activity”; or “sexual assault, dating violence, domestic violence, and stalking.”

The 2020 changes to Title IX offered more due process protections for the accused. Among other changes, it requires schools to provide those accused of harassment or assault with opportunities to question evidence and cross-examine their accusers. Under the 2020 changes, schools have the option to use the “preponderance of evidence” standard at their sexual assault and harassment hearings, or the “clear and convincing evidence” standard, which is a higher standard of proof. Students do not conduct cross-examinations themselves; rather, a school’s Title IX Coordinator will assign students an “adviser” to conduct any cross-examination that occurs during hearings. In the alternative, rather than having an “adviser,” students (both complainants and the accused) can hire attorneys to act as their advisers throughout a Title IX investigation. The school’s policy determines the exact investigative and disciplinary procedure within this Title IX legal framework.

Title IX’s Scope

Under Title IX, any school that receives federal funding for any educational program – from kindergarten through post-graduate educational programs – must provide fair and equal treatment of the sexes in all areas. Title IX’s application is broad and applies in the following types of cases:

  • Sexual harassment or sexual assault;
  • Retaliation;
  • Athletics;
  • Pregnancy; and
  • Sexual orientation and gender identity.

Title IX in Sexual Harassment and Assault: Title IX includes any unwelcome sexual conduct, such as unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature. Sexual violence refers to physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent. Title IX also prohibits sex-based harassment, which includes verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, even if those acts don’t involve conduct of a sexual nature. The Title IX protection against sexual harassment and assault applies to both students and school employees.

Title IX in Retaliation Cases: Title IX prohibits schools and educational programs from retaliating against an individual for asserting Title IX rights or raising concerns that the school is in violation of Title IX. This means that the school cannot penalize a person for bringing forth a report or complaint that falls under Title IX.

Title IX in Athletics: Title IX requires schools to treat men and women equally with regard to athletic participation opportunities, athletic scholarships, and treatment of teams. This includes aspects of athletics from equal facilities, equipment, uniforms, travel and travel funding, scheduling of practice and games, housing, and other activities related to athletic participation.

Title IX in Pregnancy Discrimination Cases: Pregnancy discrimination is also sex discrimination that Title IX prohibits. Under Title IX, schools must give students who are, have been, or may be pregnant the same access to school programs and extracurricular activities. A student who misses classes, clinic hours, or any educational program due to pregnancy cannot be penalized for those absences. Further, Title IX must allow a student the opportunity to make up missed work.

Title IX in Sexual Orientation and Gender Identity: Title IX prohibits discrimination against LGBTQ+ or gender nonconforming students. Under Title IX, schools have an obligation to respond to and remedy bullying, harassment, and discrimination against LGBTQ+ or gender nonconforming students. In addition, students have a right to equal access to educational opportunities, including access to single-sex spaces, gender-neutral and equitable enforcement of dress codes, and activities consistent with their gender identity.

Student Misconduct Cases

Schools also investigate student misconduct allegations that do not fall under Title IX protections but that violate other school policies, such as allegations of sexual harassment that occurred between two students off-campus or allegations, academic cheating, or violations of the law while enrolled at the school. These cases are covered entirely by schools’ misconduct policies and not by law. Students have the rights given to them under the school policy, which might include reviewing investigative documents, receiving the allegations in writing, submitting materials, and appealing the final outcome. In these cases, schools generally still conduct investigations, provide notice to the accused, and often assemble a board of decision-makers who make the final determination.

The sanctions or punishment a student faces for violating a student conduct policy vary depending on the seriousness of the allegations. Sanctions might include, for example, issuing an apology, writing an essay regarding the student’s behavior, community service, probation, suspension, or expulsion. Understanding the school’s policy fully is essential to ensuring a fair process and defending against student misconduct allegations.

Why Hire an Attorney for a Title IX or School Disciplinary Investigation?

Title IX cases, as well as student misconduct cases, are difficult for the accused because of the limited procedural safeguards at schools, even under the 2020 revisions to Title IX. People accused often proceed without a full understanding of the potential consequences of the disciplinary process, including the potential for a criminal case to develop before, during, or after the school’s investigation.

An experienced Title IX attorney brings a close and careful understanding of the school’s own policy, the law, and the rights of the person accused. An experienced attorney can help the person accused prepare for interviews and hearings, gather and present evidence, obtain expert witnesses, make strategic decisions, and navigate through every step of the process. Although the school might offer the accused an adviser at no cost, those advisers are often school employees with no legal training, and, without an attorney-client relationship, the information shared between an accused person and a non-attorney adviser is not necessarily confidential.

Our firm ensures that our clients have a thorough understanding of their rights from the beginning to end of their case. We advocate for our clients at every stage, including through the appeal process. We provide expert advice on any criminal investigation, and, if needed, have the experience necessary to defend against potential criminal charges or bring a civil lawsuit to remedy wrongdoing at any stage in the procedure.


Call Springstead, Bartish, Borgula and Lynch for a free consultation or if you have a question at  (231) 924-8700 or (616) 458-5500. 

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