Articles Posted in Title IX

In the past few years, students have been challenging the procedures used by colleges and universities in disciplinary proceedings related to Title IX.  As schools have become more proactive in addressing sexual harassment and sexual assault, ongoing issues regarding the required due process for related disciplinary proceedings have arisen.  Schools sometimes suspend or expel students without giving students fair notice and an opportunity to be heard.

A case in the First Circuit recently held due process does not require an accused student be allowed to cross-examine his accuser.  The student had been accused of assault by another student, who was his girlfriend at the time.  The university suspended him for five months and ultimately expelled him.  He filed suit against the university.   The district court entered summary judgment in favor of the defendants, and the plaintiff appealed to the Ninth Circuit.

A student in a state educational institution has a property interest in their “legitimate entitlement to a public education. . .” That interest is protected by the Due Process Clause and therefore cannot be taken away for misconduct unless procedures required by the Due Process Clause are followed.  The essential requirements of due process are “notice and an opportunity to be heard.” For school disciplinary action, this generally requires a hearing.

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Washington Title IX defense attorneys know that the procedures used by schools and colleges to investigate allegations of sexual harassment are not always fair.  The Secretary of Education has proposed amendments to the regulations that implement Title IX of the Education Amendments of 1972. Title IX prohibits sex-based discrimination in education programs and activities receiving federal financial assistance.  The proposed regulations would define sexual harassment, specify when a school must respond to a sexual harassment allegation, impose a standard for a school’s response to sexual harassment allegations, set forth when a school must initiate its grievance procedures, and require procedures to ensure a fair and reliable factual determination during the investigation and adjudication of a sexual harassment complaint.

The Secretary found problems with how Title IX has been applied.  These problems included definitions of sexual harassment that were too broad, lack of notice, not providing both parties with the evidence reviewed by the investigator, not allowing cross-examination of the parties and witnesses, and adjudications that applied the lowest standard of evidence.

The proposed regulations are intended to ensure that allegations are properly investigated and procedures are fair to both parties.  Unfortunately, sometimes schools and universities engage in procedures that deny due process to those accused of sexual harassment, regardless of whether the accused person is a student or a faculty member.

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