The State of Title IX

Felicia S. Preston

Title IX prohibits sexual discrimination in institutions receiving federal funding. In effect, Title IX is meant to protect students and certain other categories of individuals from sexual discrimination, including sexual harassment and sexual violence. While protecting educational communities may seem like a goal that everyone can get behind, as with so many legal issues, the devil is in the details.

The application of Title IX has become a hot-button issue, with victims’ rights advocates, defendants’ rights advocates, and seemingly everyone in between weighing in heavily on the debate and posing difficult questions: Is the Department of Education doing enough to protect victims and eliminate deterrents to victim reporting? Are the current policies sufficient to protect the due process rights of those accused of sexual misconduct? Are schools even properly equipped to investigate these matters, or should investigations be left to law enforcement? Various state legislatures have made attempts to address these questions through the introduction and, in some cases, passing of state legislation. Still, questions linger in many states and on the federal level.

After a flood of speculation regarding how the Trump administration’s treatment of Title IX in the sexual assault context may differ from that of the previous administration, in September 2017, the Department of Education’s Office for Civil Rights issued a Dear Colleague Letter withdrawing the guidance set forth in two previous policy and guidance documents issued under the Obama administration in April 2011 and April 2014. The Department indicated that it would no longer rely on the policies set forth in the withdrawn documents in its enforcement of Title IX, but suggested that additional policies would be forthcoming. The Department’s actions left many educational institutions wondering about the state of their obligations under Title IX in the wake of the withdrawn policies. While the status of Title IX remains in some degree of limbo as we await additional guidance from the Department, some direction is available via the Department’s 2017 Q&A on Campus Sexual Misconduct. The Department has provided the following guidance:

  • Schools must adopt and publish grievance procedures that provide for prompt and equitable resolution of Title IX complaints.
  • Schools must identify at least one employee to act as a Title IX Coordinator and coordinate the school’s Title IX responsibilities.
  • When a school knows or has reason to know of an incident of sexual misconduct, the school must take action to understand what took place and respond appropriately—even if a student has not filed a complaint.
  • If a complainant wishes to remain anonymous, schools should take all reasonable steps to investigate and respond to the complaint consistent with the complainant’s request, considering both the due process rights of the accused student and the school’s responsibility to provide a safe and nondiscriminatory environment for all students.
  • It may be necessary for a school to implement interim measures while complaints are investigated, such as schedule modifications, housing changes, counseling, etc. In assessing the need for interim measures, the school must not favor one party over the other.
  • Schools should make a good faith effort to conduct fair and impartial investigations in a timely manner.
  • Schools, not parties, have the burden of gathering sufficient evidence to reach a fair and impartial resolution to Title IX complaints.
  • Fair and impartial investigations require the use of an unbiased, trained investigator.
  • Rights, opportunities, and relevant information made available to one party during the investigation and adjudication of a complaint should also be made available to the other party on equal terms.
  • Parties should receive written notice before any interview or hearing, with sufficient information to allow for meaningful participation. Parties should receive equal access to information to be used in disciplinary meetings and hearings.
  • When appropriate, and where parties agree, schools may use an informal resolution process to assist the parties in reaching a voluntary resolution.
  • A school may apply a preponderance of the evidence or clear and convincing standard of proof in adjudicating sexual misconduct cases, but the standard should be consistent with the standard of evidence used to adjudicate other instances of student misconduct.
  • A school may offer either the responding party or both parties the right to appeal a determination.

The Department is expected to revisit its policies regarding Title IX in the near future, likely with much reverberation from both sides of the issue. Particularly in light of a renewed focus on sexual misconduct issues, one thing is clear: Title IX and its related policies will remain hotly debated.

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Felicia S. Preston

Felicia S. Preston is special counsel at Nexsen Pruet, LLC in Charleston, South Carolina.