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WHAT IS TITLE IX?
Title IX is a federal law that was enacted in 1972 initially to ensure that female students not be discriminated against when educational institutions apportioned funding to athletic programs. Over the years, application of the law has been dramatically broadened to cover several facets of higher education. The statute provides that, "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." Congress further provided that if an educational institution is found to be discriminating against a student or students on the basis of sex, that educational institution could be subject to forfeiture of its direct and indirect federal funding.
In interpreting Title IX, the Supreme Court has held that when students suffer sexual assault and harassment, they are deprived of equal and free access to an education, which his a violation of Title IX. The U.S. Department of Education's Office for Civil Rights, which monitors enforcement of Title IX on college and university campuses, "The sexual harassment of students, including sexual violence, interferes with students' right to receive an education free from discrimination and, in the case of sexual violence, is a crime." Consequently, colleges and universities were required to comply with Title IX or face lose of their federal funding.
Procedures were put into placeso that schools could receive and process complaints of sexual discrimination, harassment and violence. Most colleges and universities now have a Title IX Coordinator who oversees the receipt and investigation of Title IX complaints. The procedures for processing Title IX complaint varies from school to school, but the allegations are required to be kept confidential and retaliation by any party (accuser or accused) is prohibited. Schools are required to allow an accused to respond to an allegation but often the accused is given very little time to respond and not provided with the details of the allegation, which may involve conduct that took place on or off campus. In many cases, without any evidence being review or evaluated, an accused student is served with a "stay-away" order and even forced to immediately leave classes and campus while the Title IX investigation goes forward. Some but not all schools permit the accused a hearing and there is an appeal process. The standard of proof is only by a mere preponderance of the evidence rather than beyond a reasonable doubt, the burden of proof a prosecutor must meet at a trial to convict a person of a crime.
Despite this very low standard of proof, unfortunately, many schools discourage an accused student from seeking legal counsel and instead only offer to provide the student with an "advisor" who is usually a member of the faculty or staff who has volunteered to assist students with filing or responding to a Title IX complaint. These faculty and staff usually have no legal training are unable to give legal advice nor do they apprise a student of the risks of making a statement to a Title IX investigator or Title IX Coordinator regarding an allegation of sexual misconduct. The standard of what is sexual misconduct is also different than the criminal law under the so-callled "Enough Is Enough Law", which permits a finding of sexual misconduct, which can result in expulsion from the school, if the accuser claims that he or she did not give "affirmative consent."
Participation in a Title IX investigation without an attorney can have dire implications to a student accused of sexual misconduct because the allegation can also be a crime. Even though the Title IX investigation may be "confidential" on campus, any statement given by an accused to a Title IX coordinator, investigator or a witness can be used to prosecute an accused student in a criminal court which can result in a prison sentence if convicted of a crime. Often students, who generally have very little life experience, will casually make statements to a Title IX investigator that are misinterpreted or incorrectly reported which are then used as evidence of an admission or confession to a crime and the student is charged by sex crimes prosecutors. Text messages are commonly taken out of context and used as evidence that a student engaged in sexual misconduct. It should be clear that these investigations, often carried out by untrained or poorly trained members of the faculty or staff, have been designed over time to protect the educational institution, not the rights of the students. Therefore, it is of paramount, if not primary importance, that a student accused of a Title IX violation seek experienced Title IX counsel to protect the student from waiving his or her Constitutional rights and if possible, avoid being charged criminally.
If you or someone you know has been notified of a Title IX allegation, call us for a free consultation BEFORE a response is submitted to the Title IX Coordinator or an interview conducted by the Title IX investigator.
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