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Can Athletic Departments or Greek Organizations Penalize Students Prior to a Finding of Responsibility?

When a college or university receives notice of alleged sexual harassment in violation of Title IX, that college is required to take certain steps to protect the complainant and investigate the complaint. The federal rules set minimum standards, and the Department of Education has said that schools can take additional actions that go beyond those standards.

However, students responding to complaints have certain rights that may not be infringed by their educational institution. So, if a student is accused of a violation, can the school’s athletic department restrict the student’s participation before the investigation has concluded? Can campus sororities and fraternities punish members before guilt or innocence is established? How far does the presumption of no responsibility extend?

A Student is Presumed Not Responsible

Title IX regulations require schools to establish a grievance process that includes “a presumption that the respondent is not responsible for the alleged conduct until a determination regarding responsibility is made at the conclusion of the grievance process.” It is the academic equivalent of “innocent until proven guilty.”

The Department of Education has clarified that this requirement does not create a presumption that the complaint is untruthful or that harassment did not occur. It is “designed to ensure that investigators and decision-makers serve impartially and do not prejudge that the respondent is responsible for the alleged harassment.”

When departments of the school or organizations chartered by the school penalize a student before the grievance process has concluded, they are effectively prejudging the respondent. It can be argued that this comes across as a presumption of guilt.

Schools Are Allowed to Take Interim Steps During a Title IX Investigation

Under Title IX regulations, schools are allowed to remove students from an education program or activity on an “emergency” basis. This would appear to allow athletic programs and Greek organizations to ban students facing a formal complaint of Title IX sexual misconduct.  However, the rules require the school to conduct an “individualized” safety and risk analysis before removing a student. As a result of this analysis, the school must conclude that the presence of the respondent provides an “immediate threat to the physical health or safety” of an individual that is sufficient to justify the respondent’s removal. Moreover, when the school acts to remove a respondent, the institution is supposed to provide due notice along with an opportunity to challenge the removal decision.

It is not likely that a fraternity or sorority has the capacity to conduct a safety and risk analysis that is sufficiently thorough to protect the rights of the accused student. While the athletic department of a large university could potentially manage such an analysis, it is likely that department resources are allocated elsewhere. Therefore, the school itself would need to conduct the investigation. A school department or organization could request an analysis but should wait for the outcome before taking action to avoid infringing on the respondent’s due process rights.

Penalties Often Amount to Preemptive Punishment Based Solely on an Accusation

To protect the rights of the complainant and the respondent (via FERPA) in a Title IX complaint proceeding, information is kept confidential. Therefore, when an athletic department or Greek organization penalizes a student prior to a finding of responsibility, they are acting entirely on the basis of an accusation. There is no evidence put forward on which to base a decision. The penalty is a preemptive punishment that may turn out to be completely unjustified but cannot be undone. 

There are specific regulations that prohibit a school from doing anything burdensome to a respondent prior to a finding of responsibility and the only exception is the emergency removal that requires a particularized finding and usually the ability to appeal that. This would likely apply to frats and athletics departments under this broad umbrella coverage.   Title IX generally does not permit the school to impose any burdensome measure on either a complainant or respondent unless and until there is a finding of responsibility. A fraternity on school property or affiliated with the school is also held to these same standards. 

Title IX dictates that a University organization cannot circumvent the Title IX process and have its own hearing that may have fewer protections than a Title IX process and impose a burdensome measure- such as suspension– before there is a finding of responsibility as shown under the Title IX process. 

In fact, the Department of Education directly addressed this topic in Part 2: Questions and Answers Regarding the Department’s Title IX Regulations issued on January 15, 2021. The Department specified that sanctions or other actions that are “not supportive” cannot be imposed with a proper grievance process. This includes placing a temporary hold on a transcript, removal from sports teams, and exclusions from school activities. Under these guidelines, an attorney can argue that many actions imposed prior to a finding of responsibility are unduly burdensome and therefore not permitted. 

Action by Campus Organization is Seen as Evidence of Guilt

An accusation of a Title IX violation can do considerable harm to a student’s reputation and thus destroy many future opportunities. When school departments and organizations act in response to the allegation, that may be perceived as evidence of guilt in the minds of many. This can have devastating consequences for an accused student.

Consider the case of Patrick Witt, quarterback of the football team at Yale who had just been named a finalist for the Rhodes Scholarship and was preparing for the NFL Combine when he learned that a former girlfriend has filed an informal complaint against him for sexual misconduct. Because the complaint was informal, he was given no information about the specific accusations, and the school did not conduct an investigation. He asked for a fact-finding investigation so he could clear his name but was told “[t]here’s nothing to clear your name of.”

The knowledge of the supposedly confidential informal complaint spread based on tips from an “anonymous” informer who contacted the Rhodes Trust. Witt withdrew his candidacy for the Rhodes Scholarship. His employer rescinded a job offer. Then the New York Times ran a story about the complaint. Although he had been projected as a likely NFL draft pick before the story became public, his football hopes evaporated because no one would consider him with his tarnished reputation.

The perception of guilt based on the informal complaint with no evidence whatsoever and no specific allegations of wrongdoing was sufficient to destroy a lifetime’s worth of opportunities.

Legal Advocates Stand Up for Students When Their Rights are Compromised

Students penalized before a finding of responsibility deserve better and are entitled to protection. It is important to balance the rights of both the respondent and the complainant in a Title IX proceeding, and in many cases that require legal intervention.

At Duffy Law, LLC we believe the important Title IX goals should not be achieved at the expense of individual rights. For a confidential consultation to discuss how we could help enforce and protect your rights, contact us today.

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.