October 11, 2023

Whether a person is the complainant or the accused respondent in a Title IX proceeding pursued by an academic institution, that person is protected from retaliation for their lawful actions in participating in the proceeding. These protections against retaliation also extend to witnesses and other participants such as fellow students, teachers, coaches, and administrators. 

Title IX creates a rather complex legal framework whereby academic institutions are required to administer and oversee disciplinary proceedings, and the academic institutions themselves are then overseen by the federal government which then may administer its own legal proceedings against said institutions. Due in part to this complexity, many participants in the process can find themselves in the position of being both protected from retaliation in the Title IX process while also potentially facing liability for themselves committing retaliatory acts against others. 

Because of the dual nature of protection and liability under the anti-retaliation provisions of Title IX, it is important for every participant in the process (including academic institutions, complainants, and respondents) to obtain experienced Title IX counsel to protect their rights and avoid allegations of retaliation. 

The Basics of Title IX 

Title IX is a federal civil rights law that not only provides for harsh disciplinary legal measures to be enacted against educational institutions, but also creates significant risks for those students, faculty, and other administrators and employees who attend and work at such institutions. 

Title IX requires academic institutions receiving federal funding to not discriminate on the basis of sex. While this has traditionally included the prohibition of employment discrimination on the basis of sex and the requirement of a certain level of equity between men’s and women’s sporting activities, over the years, the requirements of Title IX have had profound effects on the ways that schools are required to respond to accusations of sexual harassment, sexual assault, stalking, and domestic violence. 

Thus, an academic institution may face a Title IX investigation by the federal government into how that school responds to allegations of sexual misconduct, but, additionally, an employee, faculty member or other person may face a Title IX proceeding pursued by the school itself, and the latter is the subject of this article. 

Types of Title IX Retaliation

Pursuant to Title IX, no academic institution or other personal shall “intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by [certain provisions of Title IX], or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing [pursuant to Title IX].” 

Again, the protections of this anti-retaliation provision apply to numerous individuals including complainants, respondents, and witnesses, but at the same time these restrictions against retaliation can also apply to those same individuals. For example, a residential advisor employed by a university with knowledge of a sexual assault allegation cannot be suspended or demoted by the university for participating as a witness in a Title IX proceding, but that same individual also cannot intimidate a student accused of sexual assault to, for example, change their testimony or drop out of school by threatening that student with academic discipline if they do not. 

Other examples of prohibited retaliation could include: 

  • A school refusing to promote a faculty member for making a complaint based on sexual discrimination in the tenure process
  • A coach pressuring a player not to continue pursuing a sexual harassment claim against a fellow player
  • A complainant who alleges stalking by a faculty member attempting to prevent a fellow student from testifying about information that may be unhelpful to the case by threatening to ruin that fellow student’s reputation
  • A respondent accused of sexual assault by a fellow student talking to his accuser when the school has already issued a no-contact order between the students 

It is important to note that retaliation liability can apply even when the underlying Title IX allegations are found to be without merit. 

Working With Experienced Counsel to Both Respond to Retaliation and Protect Against Retaliation Claims

As the above demonstrates, Title IX can present complex scenarios for anyone involved in the process with respect to the protections and liabilities associated with the anti-retaliation provisions of the law. Additionally, aside from such retaliation considerations, a Title IX proceeding can involve significant consequences for both those individuals alleged to have been involved in misconduct, as well as the institutions that administer those proceedings. 

Thus it is important for all involved to obtain sufficient legal counsel to protect their rights throughout the proceeding. The approach of attempting to “go it alone” in a Title IX proceeding 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 a person’s educational and 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 – 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. If you or a family member are facing an academic disciplinary proceeding, contact our office to speak with an experienced defense attorney regarding your situation today.

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