What You Need To Know About Title IX

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.

Title IX requires the school to protect the student’s safety as necessary; this includes taking interim steps (such as a no contact order) before the final outcome. Also, the school should provide the student with periodic updates regarding the status of the investigation and any available resources.

If a school responds inadequately or delays the investigation, it’s own inaction may subject the student to a hostile environment for which the school must remedy. For example, if the school ignored a student’s complaints and the student had to continue classes with the perpetrator, causing a drop in grades due to inability to concentrate, the school may need to permit the student to retake the class without academic or financial penalty

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.

What if the Complainant and the Perpetrator are Members of the Same Sex?

Title IX protects all students from sexual violence, regardless of the sex of the alleged perpetrator or complainant. It also extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or feminity. A school is required to investigate allegations and remedy occurrences of sexual violence involving parties of the same sex in the same manner and using the same procedures and standards used in all complaints involving sexual violence.

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?

In evaluating whether a school’s Title IX grievance procedures are prompt and equitable, the United States Department of Education considers whether each of the following elements are included:

  • notice to students and employees of the procedures, including where complaints may be filed;
  • application of the procedures to complaints alleging harassment carried out by employees, other students, or third parties;
  • adequate, reliable, and impartial investigations of complaints, including the opportunity to present witnesses and other evidence;
  • application of the “preponderance of the evidence” (more likely than not) standard to any Title IX proceeding, including fact-finding and hearings;
  • designated and reasonably prompt timeframes for the resolution of the complaint process;
  • written notice to the parties of the outcome of the complaint and any appeals; and
  • an assurance that the college or university will take steps to prevent recurrence of any harassment and to correct its discriminatory effects on the complainant and others, if appropriate.

The Office of Civil Rights notes that most investigations should be concluded in 60 days but does not require it. The 60-day timeframe includes the entire investigation process (fact-finding, hearing, determining appropriate actions, imposing sanctions, and providing remedies) but does not include appeals. However, a school may not have an unduly long appeals process.

How must a School Conduct its Grievance or Disciplinary Procedures?

The accused student and the victim have equal rights throughout the process:

  • Throughout a school’s Title IX investigation, including at any hearing, the parties must have an equal opportunity to present relevant witnesses, cross-examine witnesses, and present other evidence.
  • Both the accused and the victim have a right to review the evidence and the right to hear and question relevant evidence and witnesses.
  • The victim and the alleged perpetrator must be afforded similar and timely access to any information that will be used at the hearing.
  • If a school provides for appeal of the findings or remedy, it must do so for both parties.
  • 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.
  • If a school allows third party expert testimony, it must do so for 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. When requested, the school should make arrangements so that the student and the alleged perpetrator do not have to be present in the same room at the same time. 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?

Preponderance of the evidence is the appropriate standard for investigating or evaluating allegations of sexual harassment or violence under Title IX.

Schools may not use a “clear and convincing evidence” standard or “beyond a reasonable doubt” standard or any other standard other than “preponderance of the evidence.”

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?

First, 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.

Even if the off-campus misconduct was not in the context of a school activity or program, the school still must determine whether the effects of the misconduct created a hostile environment on campus or in an off-campus school program or activity. The Department of Education recognizes that students often experience the continuing effects of off-campus sexual violence while at school or in an off-campus educational program or activity. If the off-campus sexual violence created or contributed to a hostile environment, the school must address that hostile environment in the same manner in which it would if the misconduct occurred on-campus.

The school should also take steps to protect the student and school community from further harassment or violence by the perpetrator or his or her friends.

Additionally, a school is required to treat off-campus sexual violence in the same way it handles other off-campus incidents of misconduct. For example, if a school, under its code of conduct, exercises jurisdiction over off-campus physical altercations between students, it should also exercise jurisdiction over off-campus incidents of student-on-student sexual violence.

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.

These steps should minimize the burden on the complainant and should not be delayed until the outcome of a criminal proceeding. 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.


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

OCR-April-2014-Guidance-QA

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

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

OCR-Case-Processing-Manual

Dear Colleague Letter (April 2011)

colleague-201104

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

OCR-Guidance-2001

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

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 at IIT Chicago-Kent College of Law


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

Gebser

For full details about this case visit The Oyez Project at IIT Chicago-Kent College of Law


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

Franklin

For full details about this case visit The Oyez Project at IIT Chicago-Kent College of Law

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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.

2 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

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