Law You Can Use
By KRISTINA W. SUPLER & SUSAN C. STONE
Ohio State Bar Association
Title IX of the Education Amendments of 1972 is a federal civil rights law that prohibits discrimination on the basis of sex in federally funded education programs and activities. All public and private elementary and high schools, school districts, colleges and universities that receive any federal financial assistance must fully comply with Title IX.
While most people think of Title IX as prohibiting sexual harassment and sexual violence – including dating violence, rape, and sexual assault – it also applies to school admissions, financial assistance, athletics and the treatment of pregnant students.
Title IX applies to all students at federally funded institutions and is intended to protect them from sexual discrimination and sexual violence. This includes elementary students through graduate students; male and female students; full-time and part-time students; and students with and without disabilities.
Almost all private schools, including colleges and universities, must comply with Title IX because they receive federal funding through federal financial aid programs used by their students.
Enforcement of Title IX
The U.S. Department of Education’s Office for Civil Rights (OCR) enforces Title IX’s requirements. Under Title IX, a federally funded institution must ensure that no student is denied or limited in his or her ability to participate in or benefit from a school’s educational programs or activities on the basis of sex.
A school fails to protect a student’s rights when the school is notified of an incident of sexual violence and/or a hostile environment, but fails to remedy its effects and prevent its recurrence.
A Title IX coordinator within an institution works to ensure Title IX compliance and enforcement, and oversees an institution’s grievance procedures for Title IX complaints. These procedures generally include investigations and hearings to determine whether sexual harassment or violence occurred. A “preponderance of the evidence” standard (meaning it is more likely than not that sexual harassment or violence occurred) governs Title IX proceedings.
Reporting sexual discrimination or violence
Every institution has its own grievance procedures and they may vary depending on the nature of the allegations and the number of other students who may be involved.
Generally, to report Title IX violations, a student would file a written complaint with a school’s Title IX coordinator who will then interview that student and the alleged perpetrator. Following these meetings, an institution may opt to use the services of an independent Title IX investigator, who is expected to conduct an adequate, reliable, impartial and prompt investigation.
All of the parties to a Title IX complaint will be allowed to present witnesses and evidence. As part of the investigation, the students’ files and any relevant police investigative reports may also be reviewed.
While an investigation is pending, an institution must protect the student making the allegation. For example, the school may prohibit contact between that student and the alleged perpetrator and may offer no-cost counseling and other mental health services, in addition to academic support services such as tutoring.
When the investigation is concluded, a hearing may take place to determine whether the alleged conduct occurred, although Title IX does not necessarily require it. Ultimately, all parties must be notified in writing about the outcome of the complaint.
Sometimes, Title IX violations involve criminal conduct and there can be a parallel criminal investigation to a Title IX inquiry. The Office of Civil Rights has advised institutions not to wait for a criminal investigation and/or prosecution to conclude. Rather, institutions are advised to work with campus police and local law enforcement offices during investigations. Schools may share information with law enforcement investigators, as long as they comply with the Family Educational Rights and Privacy Act (FERPA) and other privacy laws.
An institution can also handle complaints of alleged sexual violence that did not take place on school grounds or at a school-sponsored event. Title IX requires an institution to process all sexual violence complaints. Even if the alleged conduct occurred off campus or at an event unrelated to school activities, an institution must still evaluate whether the impact of the alleged conduct creates a hostile environment on campus or at an off-campus educational program or activity.
How an attorney help navigate the Title IX process
Students can choose to have a lawyer represent them during a Title IX investigation. However, Title IX requires that, if an institution permits them to have legal counsel or an advisor, all other parties must have the option to choose the same type of representation. Counsel for an accused student may be critical, especially in cases involving potentially criminal conduct.
Attorneys can be an integral part of navigating the Title IX process and any parallel criminal investigation. Counsel can help a student making an allegation prepare a witness statement, communicate with university and government officials and negotiate a resolution.
Susan Stone and Kristina Supler co-chair Kohrman Jackson & Krantz’s Student & Athlete Defense Practice Group and the firm’s Criminal, Cyber and White-Collar Practice Group. Susan handles matters such as special education issues, student disciplinary matters and Title IX investigations. She also handles student matters involving hazing, bullying and social media. Kristina handles a variety of matters involving educational services and student discipline and has represented students and professors in campus Title IX proceedings and parallel law enforcement investigations. This “Law You Can Use” column was provided by the Ohio State Bar Association. Articles appearing in this column are intended to provide broad, general information about the law. This article is not intended to be legal advice. Before applying this information to a specific legal problem, readers are urged to seek advice from a licensed attorney.