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Title IX & Student Conduct Code Blog

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2023 Roundup: A Quick Guide to Recent Issues Regarding Title IX and Student Code Violations

Periodically, it helps to review some of the critical legal issues that have come up regarding Title IX and student conduct code proceedings. Students always need to be aware of their rights and how to protect and enforce those rights. All too often, students and their families, as well as faculty and staff, miss out on opportunities or put themselves in a precarious position because they do not know the most advantageous steps to take in a particular situation.

Remember that our team is always here if you need advice or have questions. Here are some of the key issues that have come to our attention in recent months.

Key Steps for Students Experiencing or Accused of Sexual Assault on Campus

Being subjected to sexual assault while away from home at a college or university is one of the most traumatic experiences a student could possibly endure. However, being wrongfully accused of a sexual assault on campus is a traumatic experience as well. Our experienced legal team works to help students recover after either horrific situation.

What to Do if You Have Been Sexually Assaulted at an Educational Institution

After the trauma of an assault, even if you want to curl up into a hole and disappear, you need to get to a hospital and get a thorough medical exam. Your emotional pain could be masking symptoms of a serious injury that requires treatment. In addition, an exam can provide crucial evidence about what happened and the identity of the attacker. If you delay or avoid getting an exam, this vital evidence will be lost.

Both your mind and your body will need to process the trauma, so it is important to find support, including professionals who are trained to help you cope and who are required to keep your information confidential so you can express concerns without fear. An attack from someone you have dated is just as wrongful as an attack by a stranger, so you are entitled to the same relief measures and remedies regardless of the identity of your attacker.

Even if you don’t know whether you plan to pursue justice against your attacker, it is wise to preserve evidence in case you decide later to file a complaint on campus or talk to the police. Bag up the clothes you had on and bedding or any other items you came into contact with so these items can be tested for DNA. Write down the names of any witnesses who may have seen you before the attack. As painful as it may be, also try to write down or record all that you can remember about the attack and the incidents leading up to it.

Then you can learn about your options including filing a complaint on campus or pursuing criminal or civil charges. Remember that Title IX gives all students, including LGBTQIA+ students the right to relief from intimate partner violence as well as other forms of prohibited conduct. Visit our website for more information about what to do immediately after an attack and how to file a Title IX complaint.

What to Do if You Have Been Accused of Sexual Assault at a College or University

When a student or member of the faculty or staff at an educational institution faces accusations of sexual assault or other Title IX violations on campus, it is important to take extreme care. There may be a perfectly innocent explanation for the incident. For instance, studies have shown that individuals with autism spectrum disorders commonly exhibit traits that are misinterpreted as stalking behavior. However, the explanation will not be given full consideration unless the person accused takes the right steps to protect their interests. It is vital to limit communications, and in particular to avoid any attempt to get a message to the person who has raised the accusation.

While it is best not to communicate with the accuser in any situation, it is especially vital to avoid such communications if a No Contact order is in place. This is similar to a restraining order in a domestic violence case, and violating the terms can make a student’s case much worse.

Legal Assistance Can Provide a Number of Benefits

An experienced attorney can help a student understand how to comply with every provision in a No-Contact order. In addition, an attorney can advise the person accused about how to respond to questions from investigators and work to collect and preserve evidence to defend against the allegations.

When working with a legal advisor during a Title IX case, whether you are the complainant or the respondent, it is important to be aware of the questions your attorney should be asking you to gain the best understanding of the situation and the information necessary for a robust defense. If an attorney is not intimately familiar with Title IX campus proceedings and lawsuits, or if the testimony of a neutral Title IX professional could move the case forward, then it may be a good idea to bring in an outside Title IX consultant to assist. 

An outside consultant might notice one of the procedural errors schools frequently make during investigations and adjudications that could provide grounds to appeal a decision, file a lawsuit, or start a new proceeding. School proceedings often violate the due process rights of the student accused of a violation, which can provide grounds to have determinations overruled.

If a college imposes penalties such as sanctions, probation, suspension, or expulsion, it is wise to fight the sanctions even if they seem relatively minor. Having any black mark on the record for discipline can interfere with a student’s opportunities for further education, professional licensing, security clearance, or even volunteer activities. Depending on the situation, it may make sense to file a Complaint with the Department of Education’s Office for Civil Rights or seek a temporary restraining order or preliminary injunction. Sometimes, even an informal negotiation can lead to a better outcome that preserves future opportunities.

Title IX Issues That Take People by Surprise

During a Title IX investigation, there has been no formal finding of responsibility, but students accused of wrongdoing often feel that they have already been judged negatively. They are often surprised to learn that there is a presumption of confidentiality concerning Title IX complaints. This could be because there are exceptions to the confidentiality rule that could lead to professors and others on campus learning the details about a Title IX complaint. Only by vigilantly protecting their privacy rights can a student ensure that information is shared only on a strict need-to-know basis.

Despite claims by many victims’ rights advocates that colleges and their proceedings operate with bias favoring student athletes, in recent years many athletes accused of Title IX violations have successfully argued that school procedures and investigations have operated with a presumption of guilt that reveals a bias against male athletes. In fact, at least one court has ruled that a student accused of Title IX sexual misconduct is allowed to bring a defamation action based on allegedly false statements made during the course of a Title IX investigation.

Conduct That is Permissible by Law Can Still Get a Student into Trouble if it Violates the School Code of Conduct

Title IX disciplinary proceedings are not the only campus violations that can cause problems for students in the long term as well as the short term. Penalties for code of conduct violations can damage a student’s reputation and future opportunities just as severely as a Title IX violation.

Certain offenses in particular can cause potential future employers to think twice before trusting an individual with a sanction on their record. Actions taken against a student for cheating, for instance, which are becoming more common with the prevalence of AI, can imply that a student has ethical failings that cannot be remedied. Disciplinary action involving bias-motivated conduct can have a similarly damaging effect on a student’s record. 

Students can also be penalized for actions that have received approval from some but not necessarily all members of society and are no longer treated as criminal, such as the use of marijuana on campus. Regardless of the accusation, students should be prepared to defend themselves in on-campus proceedings and beyond if necessary.

New Protections for Transgender Students

Although the Biden administration delayed the release of new Title IX regulations, the administration did issue guidance protecting the rights of transgender students. The Department of Education officially confirmed that Title IX protects students from discrimination on the basis of sexual orientation and gender identity. The guidance is backed by federal court rulings specifying the protections that students and employees have against discrimination and harassment on the basis of their gender identity and sexual orientation. The Department extends protections to transgender students in grades K-12 as well as those in college and university settings.

Although many states have filed lawsuits challenging the application of the Department’s policies, the issues may not be fully resolved until courts settle challenges that will surely be raised against the final rules when those are released.

Dealing with the Rules as They Are Now

The delay of new Title IX regulations means that cases continue to proceed under the 2020 rules and procedures established by schools under those rules. While colleges and universities must work within the frame of the federal rules, they still have considerable leeway when establishing their own policies such as the definition of sexual assault and the process for conducting investigations. Currently, the standard requiring investigations to be concluded “promptly” has resulted in average investigations that last approximately 60 days, but the duration can be longer when a case is complex.

Schools often establish informal resolution processes that may be quicker but could prevent a student from fully developing a case or defending against allegations. An attorney could help students understand what they give up in an informal process, such as the opportunity to build a defense through the filing of a cross-complaint. This strategy is often most effective when used soon after the filing of the original complaint.

Although the current rules protect specific due process rights, courts have disagreed about whether this includes the right to cross-examine a complainant or respondent in a live hearing. For instance, the California Supreme Court ruled that while back-and-forth questioning may be considered essential in a criminal trial, a student did not have a right to cross examination in an administrative proceeding on campus even when due process protections applied. 

Since submitting to cross-examination, even indirectly, has been considered by many complainants to be the worst aspect of a Title IX case, this finding is welcome news to many advocates for students who have suffered from Title IX violations. However, other courts have upheld the essential nature of cross-examination in Title IX cases, so the issue is likely to remain contentious for some time.

Results and Guidance for the Future

With Title IX now over 50 years old, many people are now looking back to gauge the long-term effect of the legislation and regulations on women’s athletic programs. While some analysts point to accomplishments, others decry unequal or ineffective results. In particular, there is a concern that female minority athletes have not benefited to the same degree as white female athletes, and these concerns are supported by data showing that while all female athletes have fewer leadership opportunities at present than they did in the past, the lack of opportunities for female coaches hits minorities particularly hard.

In the effort to improve the experiences and opportunities for athletes, coaches can adhere to guidelines to help avoid any actions or statements that could be viewed as sexual harassment. Additionally, educational institutions are advised by the Department of Education to take certain measures to avoid potential discrimination against pregnancy-related discrimination.

Vigilance in Protecting Your Rights

In the uncertain atmosphere that surrounds student rights these days, with contradictory guidance, proposed regulations, and conflicting court decisions coming at a fast and furious pace, it is important for students, their families, faculty, and staff to remain vigilant. It is important to understand when rights have been violated and to respond quickly and effectively, particularly when someone is accused of wrongdoing.

At Duffy Law, we focus our entire practice on Title IX and School Conduct Code issues, so we keep on top of every piece of guidance, every rule, and every court decision so we can help our clients protect their rights and future opportunities. If you have a question or a concern, or you are in the midst of a case now and would like additional assistance, we invite you to contact our team for a confidential consultation. 

Felice Duffy

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Attorney At Duffy Law

Attorney Felice Duffy served as an Assistant United States Attorney for ten years after beginning her legal career at two prestigious firms (one in CT and one in NY) and then clerking for two federal judges. A life-long Title IX advocate, she brought a legal action under the then-new Title IX statute against UCONN while an undergraduate to compel the creation of its women’s varsity soccer program. She went on to become a first-team Division I All-American, was selected to be on the first U.S. National Women’s Team, and spent 10 years as Head Coach of the Yale women's soccer team. Attorney Duffy has Ph.D. in Education/Sports Psychology and has spoken to, and conducted trainings for, over 50 schools and organizations on a wide range of topics involving athletics, the law, and social justice. You can reach Felice at (203) 946-2000.