What is Title IX?

Title IX is a civil rights statute that protects individuals from being discriminated against on the basis of sex in education. Specifically, Title IX provides: “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 ….” 20 U.S.C. § 1681(a). Title IX applies to most educational institutions in the United States, as all public schools and most private schools receive some form of federal funding.

The U.S. Department of Education establishes regulations and procedural requirements that secondary schools and universities must follow to prevent harassment and discrimination within educational programs. Compliance with the regulatory requirements is enforced and monitored by the department’s Office of Civil Rights (OCR). Once educational institutions are on notice of a potential Title IX problem or violation, they have a duty to respond, which includes investigation and, if appropriate, adjudication of the sex discrimination.

What this means in a practical sense is that students accused of sexual harassment, sexual assault, or any kind of sexual misconduct may be investigated by the school and subject to discipline, including removal or expulsion.

On May 6, 2020, the U.S. Department of Education published new regulations that modify school’s regulatory obligations to comply with Title IX. The former (pre-2020) approach to Title IX sexual harassment complaints protected the alleged victim to the detriment of the accused. The new Title IX regulations represent a marked change in direction by adding important due process rights for those accused of misconduct under Title IX. By revising key definitions and allowing the accused the right to a represented defense, anyone accused of a Title IX violation must understand the rules, insist that their school follow the rules, and hold the school accountable if and when it does not follow these new regulations.

The 2020 regulations differ from the former approach to Title IX sexual harassment complaint processes in the following ways:

• Narrower definition of sexual harassment: With the exception of stalking, dating violence, and sexual assault, the conduct must be “severe, pervasive, and objectively offensive” to violate Title IX
• Narrower geography of obligation: Schools are obligated to investigate and resolve sexual harassment complaints for conduct only in the US on school grounds, during school-sponsored, and in school-owned or recognized housing (like fraternities)
• Quasi-judicial process: All complaints at the university level must be investigated and resolved in a live hearing with each party entitled to an adviser or attorney to conduct cross examination—single investigator proceedings are no longer allowed
• Presumption of Innocence: An accused student shall be presumed innocent of the allegations, unless and until the decision-maker is satisfied by at least a preponderance of evidence that the accused committed a Title IX violation;
• Equal access to the allegations and evidence: Both the complainant and the accused must have equal access to written allegations of the alleged offense and evidence gathered in the investigation
• Same burden of proof for students and faculty: Schools may raise the burden of proof to the clear and convincing standard as long as it applies equally to students and faculty/employees

Working with a knowledgeable Title IX lawyer helps speed universities and schools to compliance with the new regulations following the Title IX changes and ensures those accused of Title IX sexual harassment that they will fully benefit from the rights afforded under the new rules. For more information, contact Lindsay Brown for a free initial consultation.

Please note that rules concerning due process and schools’ compliance with Title IX are an evolving field of law. In June 2022, the Department of Education issued proposed regulations that, if implemented, may overturn many of the due process protections promulgated by the 2020 amendments discussed herein. Please contact Title IX attorney Lindsay Brown for more information on the current state of law before making any decisions concerning your Title IX case.