January 24, 2024
Title IX of the Educational Amendments of 1972 (or “Title IX” as it is more commonly known) provides certain protections to students, faculty, and staff of all public colleges and universities (and nearly all such private schools) in the areas of sexual discrimination, sexual harassment, and other sexually misconduct. But Title IX also creates significant consequences and risks for professors and staff of such educational institutions, as Title IX imposes strict investigative and disciplinary procedures for college and university employees that often have little parallel in non-academic workplaces.
Although most employees are subject to a variety of federal, state, and local workplace laws and regulations, and may be overseen by a Human Resources department, Title IX mandates that colleges and universities police professors and staff in a manner that can resemble a law enforcement investigation and proceeding, yet without the same clear rights afforded to the accused as they would expect to find at the hands of police officers and prosecutors.
As a result, many college and university employees can underestimate the significance of the consequences of a Title IX investigation or other proceeding, and forgo working with legal counsel, either out of a sense that doing so is unnecessary, unhelpful, or perhaps even an admission of guilt. However, a faculty or staff member who “goes it alone” in responding to a Title IX complaint can create unnecessary risk for themselves in light of the complexity of such proceedings and the severe consequences that can follow.
How Title IX Applies to Faculty and Staff
The plain text of Title IX indicates 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.” While often understood as a law primarily about gender equity in sports, court decisions and successive federal regulations have indicated that, as part of Title IX’s prohibition on sexual discrimination, schools are required to take sufficient steps to address and prevent sexual harassment and sexual violence.
Because colleges and universities face strict legal consequences for failing to implement the requirements of Title IX (including loss of federal funding), they are required to implement and execute certain responses to allegations of sexual discrimination, harassment, and violence, which can include allegations made against faculty and staff members. Exacerbating this for those faculty and staff members under investigation, schools often face immense pressure from students, faculty, and the media to respond forcefully and quickly to Title IX complaints, creating an environment that creates due process concerns for those being accused and investigated.
What Are the Consequences of a Title IX Accusation?
Title IX requires colleges and universities to adopt and publish grievance procedures for students, faculty members and staff who feel they have been subject to sexual discrimination or sexual misconduct, and these procedures require “prompt” and “equitable” resolution of such complaints.
For a faculty or staff member accused of a Title IX violation such as discrimination, harassment or stalking – whether the complaint is made by a student or employee – this process can result in a number of negative consequences. These might include loss of tenure, loss of employment, suspension, fines, and work restrictions, all in addition to the personal and professional reputational damage that can come as a result of even an unproven allegation. Furthermore, the investigative findings of a Title IX proceeding may even be used later in a civil lawsuit or criminal prosecution against the employee.
Defending Against Title IX Allegations
As referenced above, the target of a Title IX investigation or proceeding should not expect to be afforded the same due process rights or evidentiary protections that would be expected in a civil lawsuit or criminal investigation or prosecution. Not only is it unlikely that you will be provided with an attorney, but it may also be unlikely that anyone with the educational institution would inform you of your right to have an attorney counsel you during the process (and no employee should make the mistake of thinking that a lawyer for the university represents the employee’s interests, as the attorney is solely there to represent the university’s interests, which may conflict with those of the employee).
Furthermore, a finding that a faculty or staff member committed a Title IX violation might be based on a simple “preponderance of the evidence” standard – meaning that the finder of fact only needs to determine that is simply more likely the case than not that the allegations are true – which is a far lower standard than the “beyond a reasonable doubt” standard in a criminal case. And unlike a criminal trial where an impartial jury of one’s peers are selected, a Title IX hearing panel is generally made up of school administrators and other staff members who may feel pressure to make certain decisions and findings that a private citizen juror would not. Additionally, the same constitutional protections and legal statutes regarding admissibility of evidence may not apply in a Title IX hearing.
For these reasons, faculty and staff members under investigation or facing a Title IX proceeding are strongly encouraged to work with experienced Title IX defense counsel, not just in appearing at a hearing, but through all stages of the process, including speaking with investigators and other administration officials regarding the hearing.
Contact one of our Experienced Title IX Attorneys
If you are a professor or staff member who is facing or potentially facing the prospect of a Title IX disciplinary proceeding based on allegations of sexual misconduct, professional misconduct, academic misconduct, code of conduct violations, discrimination, or other violations, it is important to take decisive action to protect your interests. The approach of attempting to “go it alone” in the hope that the issue will be quietly resolved in a positive manner without the help of experienced counsel and guidance can result in irreversible negative consequences that can impact your professional life for decades to come.
The attorneys of Zweiback, Fiset & Zalduendo understand the stress, anxiety, and fear that comes with a Title IX disciplinary proceeding – or even the threat of such a hearing – and we provide zealous counsel and representation to help our clients avoid negative outcomes and move on with their lives. Contact our office to speak with an experienced Title IX defense attorney regarding your situation today.