Title IX Litigation

Title IX of the Education Amendments of 1972 is a civil rights law with a short but important message: 

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.”

20 U.S.C. § 1681

The short translation is: “everyone gets the same treatment and opportunity in a school’s programs, regardless of their gender.” Although Title IX doesn’t explicitly mention sexual harassment or abuse, the Supreme Court and the Department of Education have established that tolerating sexual harassment, sexual assault, and other gender-based violence is sex-based discrimination prohibited under the law. Over the years, court cases and guidance from federal agencies have helped outline the requirements of Title IX: the rights and resources that schools must provide to prevent sexual assault and harassment from occurring and supporting survivors when it does.

Title IX was passed to address the long history of denying women admissions to and jobs in education. Its legislative history is important in understanding how Title IX works today.

In the late 1960’s and early 1970’s, the women’s civil rights movement gained momentum. Women were entering the workforce in record numbers, with many facing wage and earning gaps in comparison to their male counterparts. At the same time, sex discrimination including wholesale exclusion from many educational institutions emerged as a massive roadblock to gender equality in America.

As a result, several advocacy groups filed class action lawsuits against colleges, universities, and the federal government. The common denominator between all suits filed? An industry-wise pattern of sex bias against women. 
In June of 1972, the Title IX of the Education Amendments of 1972 was enacted by Congress and signed into law by President Richard Nixon, prohibiting sex discrimination in any educational program or activity receiving any type of federal financial funding. 

According to the Civil Rights Division of the U.S. Department of Justice, Congress enacted Title IX with two principal objectives in mind:

1. To avoid the use of federal resources to support discriminatory practices in education programs, and 

2. To provide individual citizens effective protection against those practices.

Title IX applies to all public and private schools that receive, directly or indirectly, federal financial assistance (including accepting students who receive federal financial aid). This means that the vast majority of elementary, middle, and high schools, school districts, and community colleges, and nearly all four-year colleges and universities must comply with the requirements of Title IX.

Title IX’s prohibition on sexual harassment or abuse applies to student-on-student harassment, teacher-student harassment, and retaliation against anyone who attempts to assert their rights under Title IX or helps someone else assert those rights.

It’s important to recognize that athletics programs are considered educational programs and activities. There are three typical athletics claims under Title IX: 

• Effective accommodation: Title IX requires schools to provide men and women equal opportunity to participate in sports. Schools are compliant if they show one of the following: 1) participation opportunities for male and female students are proportionate to their respective enrollments; 2) a history and continuing practice of expanding opportunities for the underrepresented sex; or 3) the interests and abilities of the historically underrepresented sex have been fully and effectively accommodated by the present program. Typically, these claims arise when an institution cuts an existing sports program.                       

• Scholarships: If an institution provides athletic scholarships, Title IX requires that female and male student-athletes receive athletic scholarship dollars proportional to their participation.                     

• Equal treatment: Title IX requires the equal treatment of female and male student-athletes in the provisions of: (a) equipment and supplies; (b) scheduling of games and practice times; (c) travel and daily allowance/per diem; (d) access to tutoring; (e) coaching, (f) locker rooms, practice and competitive facilities; (g) medical and training facilities and services; (h) housing and dining facilities and services; (i) publicity and promotions; (j) support services and (k) recruitment of student-athletes.

Because Title IX applies to any school or educational institution that receives federal funding, Title IX applies to most schools offering sports at the interscholastic, intercollegiate, and club or intramural level.  

Under Title IX, schools must publish a notice of nondiscrimination that clearly states that discrimination on the basis of sex is prohibited. The notice has to be easily accessible and widely available—often as part of a school handbook or code of conduct—and is frequently also posted online.

In addition to the notice of nondiscrimination, schools must also provide clear grievance procedures that detail how a school will respond to reports of sexual harassment and assault and other forms of discrimination. The published procedure should identify who to report to, how that report will be investigated, and how the perpetrator might be disciplined based on the results of the investigation. It should also outline survivors’ resources and rights under the grievance procedure and inform them of their right to report to law enforcement. The procedure itself should commit the school to responding promptly to reports of discrimination and to giving all parties equal rights and access to information throughout the process.

In order to implement the procedures, schools must employ a Title IX Coordinator whose contact information should be widely available. The Title IX Coordinator should oversee the investigation and disciplinary process, conduct trainings and publicize school policies combatting sexual assault and harassment, and monitor the campus climate to assess whether there are larger, systemic issues of discrimination.

Finally, Title IX requires schools to prevent retaliation against anyone filing a complaint or otherwise asserting their right to an education free from sex-based discrimination.

While schools are required to take steps to prevent discrimination on the basis of sex, they also have a responsibility to support students who experience sexual assault and harassment. The trauma of a sexual assault can impact many aspects of survivors’ day-to-day lives, including their academic experiences. You have a right to pursue your education in a safe, supportive environment, and your school should provide accommodations — often listed as part of school policies — designed to help and protect you. These accommodations might include:

• Counseling and mental health services

• No contact orders

• Changes in class schedule

• Deadline extensions on assignments and other academic support services

• Assistance in changing housing, dining, and work-study arrangements

• Referrals to medical care, legal assistance, and other victim advocacy services
  

It’s important to know that you may have a right to accommodations even if you decide that you don’t want to go through with a formal grievance procedure or complaint.

However, you do have a right to use your school’s reporting and grievance procedures to hold perpetrators of sexual violence accountable and potentially remove or restrict them from your learning environment. Whether the process is called “Title IX,” “Code of Conduct,” or something else, any procedure that your school uses to investigate reports of sexual assault and harassment must be fair. That means that as the person bringing the complaint, you are entitled to the same rights as the person you are accusing.

This includes the right to see reports, evidence, and any other materials that the accused perpetrator gets to see. You should also have an equal opportunity to speak to investigators and present witnesses and other evidence. You are entitled to have a support person with you throughout the process, and that person is allowed to be just as involved as the support person on the other side. For example, if your school uses a hearing as part of its Title IX procedure and an accused perpetrator is allowed to bring a lawyer as a support person, then you have a right to bring a lawyer with you as well.

In addition, your school’s investigation must be prompt; schools aren’t allowed to drag their feet or wait until a perpetrator graduates before taking action. You have a right to know the timeline for the major stages of investigation in advance. And of course, you’re entitled to know about any major developments, like the outcome of a complaint or an appeal.

A Title IX proceeding at an educational institution is not the same as a criminal case. Three of the most important differences are the mandatory nature of Title IX, timing and burden of proof.

Schools are required to investigate and address reports of sexual discrimination and harassment.  This is what comes from receiving federal money and is like a contract.  “Deferring to the authorities” or allowing the parties to address between them are not an option.

Schools are responsible for making sure their students have a safe place to learn; their investigations and hearings are designed to move relatively quickly to remedy impacts to a survivor’s educational experience. The most extreme consequence a school has the power to impose on a perpetrator is expulsion. To do that, the school only needs to conclude by a “preponderance of the evidence” that the perpetrator has committed sexual misconduct, meaning it is “more likely than not.”

In a criminal case, on the other hand, a perpetrator who is found guilty can be sent to jail. For this reason, criminal investigations can take quite a long time and guilt must be proven “beyond a reasonable doubt,” which is a much higher standard.

It’s also important to know the difference between Title IX proceedings in a school setting and a Title IX lawsuit in federal court. In a school disciplinary/code of conduct/Title IX process, the complaint is against the perpetrator of sexual harassment or assault. A Title IX lawsuit is a court case primarily against the school for failing to respond appropriately to sex-based discrimination.

There are two main options for enforcing your rights under Title IX.

One is to file a complaint of discrimination with the Department of Education’s Office for Civil Rights (OCR), which is responsible for investigating reports of sex-based discrimination in schools. If a school is found to be out of compliance with Title IX, they must take steps to change or risk losing their federal funding. To file an OCR complaint, you must fill out an online complaint form with information including your name and details of your experience no later than 180 days from the last act of discrimination.

The second option is to file a civil lawsuit against your school. In some cases, a lawyer may be able to help you do this while remaining anonymous. While the outcome of a lawsuit is never guaranteed, plaintiffs in Title IX cases may be entitled to monetary damages as well of other types of relief that can result in real, systemic changes at schools. The time limit for filing a lawsuit depends on the statute of limitations in your state. In some states it is as little as one or two years, so it’s a good idea to contact a lawyer as soon as possible.

In theory, you shouldn't. However, the Title IX process can be confusing and intimidating, and unfortunately, schools don’t always hold up their end of the bargain when it comes to protecting student survivors. “Respondents’ rights” groups push for inappropriately aggressive, one-sided measures, and in the face of this pressure, you may find that your rights suffer in the process. If you don’t feel as though you are receiving support from your own school and the administrators who are supposed to help you, you may need some help.

A Title IX lawyer will advocate for you and help remind your school that you are entitled to accommodations, a fair and timely process, and protection against retaliation. Different schools have different rules about how involved lawyers can be in the Title IX or Code of Conduct process. In some cases, if your school holds a hearing as part of its process, a lawyer can be in the room with you, helping you with each step and making sure that the accused perpetrator and his lawyer don’t cross the line.

Having someone on your side can mean the difference between feeling safe and valued on campus vs. feeling alone and vulnerable.

If you have already been harmed by your school’s failure to comply with the requirements of Title IX, having a lawyer file a lawsuit on your behalf can help you get justice. You may be able to get money to pay for counseling or help get your education back on track, and the school may be required to make changes so that other students don’t have to suffer through what you experienced.

No matter where you are in the process of dealing with sexual assault or harassment, we can help. Our Title IX attorneys are ready to:

• Analyze and explain your school’s Title IX process, help you understand what to expect, and strategize on next steps.

• Communicate with University administrators on your behalf (to advocate for accommodations, help articulate your perspective and priorities, etc.).

• Advocate for you in disciplinary hearings (as permitted by your school) to help you recount your experiences and stand up for your rights.

• Help with an appeal if your school does not find the perpetrator responsible or fails to enact appropriate disciplinary sanctions.

• File a lawsuit against your school for violating its obligations under Title IX and represent you throughout the litigation.

• Help you communicate and share your experience on your own terms, including assisting with media inquiries—or help protect your identity and privacy.

• Assist you in filing a complaint with the Department of Education’s Office for Civil Rights to report your school’s inadequate response to sex-based discrimination.
  

If you need a form of assistance not listed here, we may still be able to help you. Every client is unique, and we want to understand your needs and goals. Contact us to have a free initial conversation.

Your financial situation should not limit your access to justice—and it certainly shouldn’t stop you from understanding your options. It costs nothing to reach out to us and have an initial conversation about your situation.

While our firm charges hourly rates for some of the work that we do, we also conduct some of our Title IX litigation on a contingency fee basis. This means that you would not be charged legal fees unless we reach a settlement on your behalf or win a monetary award at trial. You would then pay your legal fees out of a portion of the settlement or award.