Do You Need to Wait for the New Rules to Come Out Before You File a Title IX Complaint?
| | Title IX
The critical language of Title IX of the Education Amendments of 1972 consists of only 37 words. However, the regulations, judicial interpretations, and executive orders concerning those few powerful words provide complainants, respondents, and their school’s guidance on what is protected and how those protections are enforced.
The regulations were substantially revised in 2020, and two years later, the Department of Education proposed another set of substantial revisions. The Department received more than 200,000 comments during the 60-day comment period and will need to review those comments before issuing final regulations. During the previous administration, it took the Department 18 months to review comments, and there were far fewer to go through. The bottom line is that no one knows exactly when the revised Title IX regulations will take effect or exactly what they will entail.
So, what are students supposed to do in the meantime?
Current Rules Remain in Effect
While the transition period will be confusing, the current rules will remain in effect until the new rules are finalized. Students who want to file a complaint should talk to an attorney now rather than wait for the new rules to come out.
Certain actions are subject to deadlines, and your right to take action can be limited or lost if you wait too long. An attorney who works closely with Title IX issues will be monitoring policy changes closely and can advise you if it is appropriate to wait before moving forward in a particular case.
Keep an Eye on School Policies
The federal rules for Title IX cases establish guidelines for school policies. Therefore, students or staff who want to file a Title IX complaint need to watch not only changes in regulations but also changes in school policies and procedures. Some schools will make changes to anticipate new requirements while others may wait until after the federal rule changes are finalized or until judicial challenges are resolved.
Students enter into a contractual relationship with their schools, so they are obligated to comply with school policies so long as the policies do not violate federal law. A school may establish guidelines or rules that are more strict than required by law and students must abide by those rules. In rare instances, a school’s rules may be considered so strict that they violate due process rights, but students in disciplinary proceedings are not entitled to the same due process protections as defendants in criminal proceedings, so it is generally best to assume that a student is required to abide by school policies in Title IX cases.
Understanding What Title IX Covers
Title IX requires colleges and universities that receive federal funds—including financial aid—to take required steps to prohibit discrimination on the basis of sex. Recent guidance indicates that this includes prohibitions on discriminatory actions taken on the basis of gender identity and sexual orientation. Discrimination can include a wide range of conduct including:
- Sexual harassment and bullying
- Not providing equal facilities for women’s athletic programs
- Denying opportunities to students or staff who are pregnant
- Sexual assault and misconduct
- Retaliating against students who file Title IX complaints
Examples of Title IX harassment violations could include a professor suggesting that a student will get better grades in exchange for sexual favors or a student touching another student inappropriately without permission. Retaliation might consist of not giving play time to an athlete or artificially lowering the grades of a student who filed a Title IX complaint or participated in a Title IX investigation.
Know the Difference Between Reporting Misconduct and Filing a Formal Complaint
Students need to act to protect their safety and well-being. It is important to report the situation when you are subjected to harassment, assault, or any other form of Title IX violation. You may not be ready to file a formal complaint that triggers an investigation until after you have talked to an attorney or advisor. Even without a formal complaint, however, by reporting the incident, you can allow the school to initiate some investigation and give yourself access to protection and resources.
Your school policy guide should explain how to report Title IX issues and how to file a formal complaint. Some schools refer to a report as a “report of concern.” The policy guidelines should tell you how to take these steps and what to expect as a result. If the guidelines are unclear, you should ask the school’s Title IX Coordinator or your advisor.
In most cases, anyone may report suspected Title IX violations even if they are not connected with the school. Students and staff who witness misconduct that affects others may report that conduct even if they were not the direct target of the misconduct. Certain staff members will be considered “mandatory reporters” under their school’s policy. Individuals in this position have an obligation to take steps when they learn about Title IX harassment. In addition, they are obligated to take reasonable care to detect harassment in areas where they exercise authority.
Get Advice and Counsel from an Experienced Attorney
Protecting your rights and interests under Title IX can be a confusing prospect at best. School policies can be hard to fathom, and federal laws and interpretations change frequently. To understand your best options and protect your future, it is helpful to consult a legal advisor who focuses on Title IX issues.
The dedicated team at Duffy Law works to promote the goals of Title IX and protect the interests of students in a wide variety of situations. We can help you determine your next best steps and how to reach a just solution. We advocate fiercely and effectively to protect our clients because we know how important these matters are when it comes to your future well-being. For a confidential consultation to learn more about the ways we could assist in your situation, contact us today.