Title IX: Avoiding Common Mistakes as a New Attorney

Imagine this: a student comes to your office and says that they have been accused of sexual assault and are being investigated by the school. They are talking about something called Title IX. How would you respond? You may know how to handle this if this were a criminal case, but what changes because the school is involved? What if there is also a criminal case going on at the same time?

This has become an increasingly common reality for attorneys, especially in college towns. Litigation related to Title IX is on the rise, and that trend is predicted to continue. Schools are seeing an uptick in reporting of cases because of increased awareness about Title IX. Students are increasingly claiming that hearings are flawed or that disciplinary sanctions are unfair as a result of procedural failings at their school. There is an increase in reported victims getting legal counsel as well.

Many lawyers do not understand what Title IX is or their role in any Title IX process. Nor do they understand where to find the information they need to effectively help their client. This article addresses three common mistakes made by attorneys inexperienced with Title IX cases and provides some guidance for how to avoid them.

1.  Not Understanding What Title IX Is

Title IX requires educational programs who receive federal funding to stop, remedy the effects of, and prevent the re-occurrence of discrimination based on sex in education programs or activities. In short, Title IX protects students from sex discrimination, which includes sexual violence. Sexual violence is not only a crime but also a violation of civil rights laws. Civil rights laws are concerned with equality.

The ultimate goal of the civil rights approach is to address the impact and remedy the effects of a Title IX incident to re-establish an equal education for the student. This often means that the school must do an investigation to determine what behavior happened and whether that behavior constitutes discrimination as defined in the school policy. There is a focus on educational opportunities, equal education environments, and equal support for the learning of all students. This is in contrast to the focus in the criminal justice system of keeping the abstract community as whole safe from violence. Thus, attorneys should not treat the matter like a criminal case. This frustrates the process.

Current Title IX procedures reflect the fact that the intent of the process is to address and remedy civil rights violations, not mirror a criminal process. Title IX treats both the alleged victim and the accused as equal parties to the proceeding. This places a greater focus on the needs and rights of the victim compared to the criminal justice system, where the alleged victim lacks party status in the proceeding and is merely a complaining witness who does not have the rights or access that is provided to the accused. In addition, a school must offer the same protective measures and opportunities to each party. It is important to remember that students who are accused and go through a Title IX investigation are impacted by the process; these students are also entitled to resources and accommodations.

Courts have determined that when a public university seeks to expel a student for disciplinary reasons, a less rigorous standard of due process is imposed than the one in criminal proceedings. Due process in public higher educational settings simply means that there needs to be notice and the opportunity to respond. Similarly, a school can use a preponderance of the evidence standard (though it can also use a beyond a reasonable doubt standard). The decision maker can only consider what has been provided to reach the standard of evidence because the school does not have subpoena power, which means that withholding information can hurt your client. Oftentimes, if there is only one side to a story, that reaches the standard for preponderance of the evidence.

2.  Not Understanding the Attorney’s Role in the Process

Attorneys that fail to understand that Title IX is a civil rights issue and insist on handling it as a criminal case generally show their hand that they are not aware of the process. When presented with a Title IX case, the most important thing an attorney should do is to read the school policy to determine the role they can play in the process. Most schools will only let the attorney be an advisor, not an advocate. This means the attorney cannot actively participate in the process, and it is the student’s responsibility to update and communicate with their advisor.

As a result, you must consider alternative ways to assist your client. First, because of how each school has unique processes, it is important to take opportunities to build a relationship with School Officials in your area. Second, make sure to know school policies and state laws. Virginia has specific laws that apply to interpersonal violence on campus that address information sharing with police and the commonwealth attorney, transcript notations, and threat assessments. Third, when talking to school officials ask questions but be aware of your approach. If you approach insisting that your role is not as an advisor, you are more likely to be sent to the school attorney’s office for all future communications instead of talking directly with those who work with Title IX. Also make sure to understand the appeals process before you approach various school officials, as you may limit your options on appeal by talking too in depth about your case.

Finally, it is crucial to understand the basis of a Title IX Complaint. Most complaints are reported by a third party and not the alleged victim directly. Generally, the alleged victim is looking for some type of accommodation and discloses what happened to them. Many times, the report stops with the accommodation or a mediation between the two parties involved, when appropriate. When the alleged victim decides that they want an investigation, the school will investigate based on their policies and procedures. Occasionally, the Title IX Process will coincide with the criminal process regarding the same incident. When this happens, Title IX will honor requests to delay the process for a reasonable amount of time. However, a reasonable amount of time usually does not include waiting until an entire criminal proceeding is finished. Often times students on either side will not participate in the Title IX process because of a pending criminal matter. It is important to note that the student is still entitled to accommodations.

3.  Not Considering All Information Necessary to Effectively Help the Client

While the school policy is the most important document to consider while handling a Title IX case, it is important to remember that court decisions and rules and guidance from the U.S. Department of Education also apply to Title IX matters. These keep changing, which means keeping abreast especially essential in this area of law. For example, in November of 2018, the Department of Education proposed rules that would make the Title IX process more analogous to the criminal process. These proposed rules received more than 100,000 comments. On November 4, 2019, the new rules were filed with the Office of Budget and Management, which has stakeholder meetings scheduled through February 2020. It is assumed that there will be litigation that will prevent the immediate implementation of these rules, but this nevertheless illustrates this is a cutting-edge area of the law, with many opportunities for new lawyers.

About the Author

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Courtney Kelly is the Title IX coordinator and Assistant Director of Equity and Diversity at Old Dominion University. Ms. Kelly graduated from Albany Law School in 2010 and has worked in higher education since 2009. Ms. Kelly is a leading expert in both compliance and building diverse and equitable working and learning communities. Ms. Kelly is licensed in both Tennessee and Virginia. She serves as the region 2 representative for the Rule of Law Project.  Ms. Kelly can be reached at cmkelly@odu.edu.