When Is Title IX Applicable?

Title IX And Its Purpose

When people hear the words “Title IX” (aka “Title 9”), they may immediately think of high school and college sports, and federal requirements that there be a level of gender equity with regards to issues such as funding and opportunities for both men and women involved in school-related sports. 

Although gender equity in high school and collegiate sports is certainly a significant aspect of Title IX – and schools face significant scrutiny and consequences for failing to meet the athletics-related requirements of the law – sports are only one aspect of the law, and are not even mentioned in the text of the law itself. Instead, Title IX is a broad anti-discrimination on the basis of gender law, and while educational institutions themselves face government enforcement for failure to abide by its requirements, individuals associated with those institutions – including students, faculty, and administrators – also face significant financial, reputational, and legal consequences as a result of the requirements of Title IX. 

Title IX was enacted into law in 1972 as part of the “Higher Education Amendments of 1972” which extended federal civil rights protections on the basis of sex to institutions of higher learning. Title IX itself includes only 37 words, which in their entirety state:

“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.”

Coverage in the media has often focused on the implications of Title IX relating to collegiate sports, and there has been much political debate about the requirements and meaning of Title IX for sports and gender, with a focus on transgender issues in sports in recent years. Again, however, there is a somewhat separate issue relating to the legal requirements that TItle IX imposes on educational institutions to investigate and resolve issues involving accusations of sexual harassment, sexual assault, stalking, gender discrimination and domestic violence, and that is the focus of this article. 

Does Title IX Apply To Public and Private Schools?

The reach of Title IX has been debated and even litigated to the Supreme Court over the years. In the 1980s, Grove City College – a private, religious college in Pennsylvania – argued that, because it did not receive direct financial assistance from the federal government, Title IX should not apply to the school. The Supreme Court agreed with Grove City College in 1984, but several years later, the federal government enacted the Civil Rights Restoration Act in 1988, which extended coverage to any school receiving any direct or indirect financial assistance, which could come in the form of accepting students who received any kind of federal student loan or funding assistance. Thus, the vast majority of colleges and universities are subject to the requirements of Title IX. 

Title IX Requirements and Title IX Investigations

Schools subject to Title IX must comply with a number of mandatory obligations relating to accusations of such conduct as sexual harassment, sexual discrimination, and sexual assault. These obligations relate to the provision of information and personnel to affected individuals, and how allegedly offensive conduct is investigated and addressed, and include the following requirements: 

• A school must promptly and effectively respond to reports of sexual harassment or violence, and thus take immediate action to eliminate the sexual harassment or violence, prevent it from occuring again, and address its effects. This is true even if an alleged victim does not file a complaint, but the school has reason to know of the underlying facts. Furthermore, a criminal investigation into the same behavior does not relieve a school of these obligations.
• A school must publish and make widely available policies regarding Title IX policies.
• A school must designate a “Title IX Coordinator” whose obligation is to coordinate the school’s compliance with Title IX requirements and notify all students and employees of that person’s contact information. 
• A school must adopt and publish grievance procedures for students to file complaints of sex discrimination, including sexual harassment and violence, and all such procedures must provide for prompt and equitable resolution of complaints. 
• A school must provide a complainant with specific procedural rights, including the ability to present evidence of their complaints and to receive notification of the school’s investigations into their complaints. 

These mandatory obligations provide protections to those who have been the victim of discrimination, harassment, sexual violence, and other offensive conduct, but they also create challenges for those accused of conduct, and who may incorrectly believe that they are entitled to the same protections and procedural safeguards they would receive in a criminal investigation. 

Whereas federal, state, and local law enforcement are required to abide by certain constitutional and other statutory requirements that protect the rights of an accused – for example the right to an attorney, the right to confront one’s accuser, and the prohibition on evidence obtained outside of constitutional frameworks – a school may take action to, for example, expel a student or fire a professor without abiding by these same requirements. Furthermore, a school may face great internal pressure from student groups and faculty to take swift action to address perceived acts of sexual violence, harassment, or discrimination without necessarily taking all steps to adequately investigate the underlying facts, even where conflicting or seemingly insufficient evidence of wrongdoing exists.

It may go without saying, but, to be clear, even if an individual does not face criminal penalties such as jail time for an academic disciplinary proceeding, the consequences can nonetheless be severe and even life-altering, whether the person under investigation is a student, faculty member, administrator, or other school employee. For example, a student wrongly accused in a Title IX proceeding may be expelled from the school, be unable to recover their tuition, and then be unable to obtain admission to another school with the disciplinary action on their record. And the disciplinary record, which may well become easily discoverable public record, can damage a person’s reputation and career prospects for many years. Similarly, a professor whose tenure is terminated as a result of a Title IX proceeding may be unable to secure further employment or resolve the damage to their personal reputation. Finally, findings in a Title IX investigation proceeding may well form the basis of a parallel or subsequent criminal investigation into the same alleged conduct. 

Asserting Your Rights in a Title IX Investigation

If you or a member of your family is facing or may potentially be facing the prospect of a Title IX disciplinary proceeding based on allegations of sexual misconduct, discrimination, or other violations, it is important to take decisive action to protect your interests. Specifically, it is critical to engage with experienced defense counsel in any Title IX proceeding or other academic disciplinary proceedings where there is the potential for significant consequences.

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 a person’s educational and professional life for decades to come. While engaging with an attorney to address the challenge of a Title IX disciplinary investigation or other proceedings may initially feel unnecessary or even an admission of guilt, understanding the severe implications of an adverse outcome in such a proceeding makes clear that doing everything possible to address these potential consequences – including asserting your lawful right to independent legal counsel – often far outweighs the initial concerns involved with reaching out for legal assistance. 

Our attorneys 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. 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.