August is upon us and millions of college students across the country will be beginning their fall terms, including many first-year students who have just become adults and have spent little time away from their families or communities. If you are a parent of an incoming student, you may be helping your child pack, stock up on ramen, move into their dorm, and get oriented to a sprawling and likely overwhelming college campus. While you are preparing your child for a new stage of their life and hopefully independence and responsibility, this is the time to familiarize yourself with the college’s policies on sexual assault, harassment, and other misconduct. One year ago the U.S. Department of Education (DOE) issued new regulations related to sexual misconduct on campus (for a summary see our blog posts here); and here in Massachusetts a new law went into effect this month, changing how schools are required to handle sexual misconduct cases. It is important to ensure that your child is aware of their school’s specific rules and knows their rights and responsibilities, as well as the risks of any criminal exposure that may arise from sexual behavior.
As a lawyer who frequently handles Title IX matters for both complainants and accused students, many of the cases I see involve new college students who experiment with alcohol or drug use, are inexperienced with sexual interactions, and are unfamiliar with their schools’ strict definitions of consensual sex and expansive definitions of sexual harassment. It is important for students to know that the Title IX standard differs from the criminal and employment standards for sexual harassment, and schools are free to develop stricter definitions to influence the behavior of their students and ensure the safety of their communities. What you may have considered a typical night of partying or juvenile behavior when you were in college now carries with it substantial risk of a complaint of sexual assault or harassment under school policy and the accused student being subjected to serious discipline, up to suspension or expulsion, as well as possible criminal ramifications depending on the conduct.
What is Title IX and How Do Schools Comply with It?
Title IX is a federal law that bars discrimination on the basis of sex in education and, among other things, requires public and private schools that accept federal funds to address and take steps to prevent sexual assault, dating violence, and sexual harassment on campus.
Under the current Title IX regulations, schools are obligated to have a Title IX coordinator and to address incidents of sexual misconduct it knows of that occur on campus or other college-controlled spaces. Most schools also have a separate sexual misconduct policy that addresses incidents that fall outside of the Title IX definitions of sexual harassment, or which occur off-campus. Schools’ processes for handling these complaints often entail the issuance of interim measures (including no contact orders, counseling, modifications to course schedules or housing to serve either the complainant or accused student pending an investigation), a factual investigation, a hearing if the conduct falls under Title IX, and potentially a sanctions process against the accused student. While the Title IX regulations impose a number of requirements that all schools must meet, the investigation and disciplinary processes can vary from school to school—particularly for those allegations that do not fall under Title IX—and, thus, you should review the school’s handbook and Title IX procedures carefully to understand the specific procedural rules at issue.
While complainants are often encouraged to come forward promptly, there is typically no deadline for the initiation of a complaint of sexual misconduct and students may, in fact, be accused of conduct that occurred months or semesters before notice of the complaint. Although the DOE and schools may have time guidance on the length of investigations, schools often take substantial time to resolve complaints, which causes distress and uncertainty for all parties involved and their families. If you are concerned as the parent of a potential complainant, you should know from the outset that, even if you believe there could be no dispute the sexual misconduct occurred, investigations need to be thorough and comprehensive to ensure that the accused’s procedural rights are protected. If you are the parent of a potential respondent, you should know from the outset that schools have an obligation to investigate sexual misconduct claims and to do so thoroughly, even if you believe the accusations are completely unfounded, and it is usually inadvisable for the student to attempt to talk their way out of the situation or for a parent to attempt to exercise influence over school authorities.
Find Out How Sexual Assault and Harassment Are Defined Under the School’s Policies
You must review the school’s specific handbook or Title IX policies to determine how sexual assault and harassment are defined under both the school’s Title IX policy, and any other sexual misconduct policy the school might have. Schools are required to publish these policies annually. To establish sexual assault, many schools now use an “affirmative consent” standard, which means that an act is not consensual unless there is an explicit, informed, and voluntary agreement for reach sexual act and that consent can be withdrawn for a subsequent act even if given for a prior one. This standard is markedly different from the criminal standard for consent under state law and means that silence, acquiescence, or performance of a sexual act may not mean that the act is considered consensual.
Many schools also have rules regarding whether a student who is intoxicated or incapacitated due to drinking or drug use is capable of consent. That said, we frequently see cases in which an accused student is investigated, and potentially disciplined, for sexual assault when both the complainant and the accused are intoxicated and may be incapable of consenting. Cases such as these, which involve gray areas where both parties may have engaged in irresponsible behavior and lack of judgment, are not necessarily treated with more nuance and discretion. As a practical matter, how schools treat these situations can sometimes be affected by factors like who files a complaint first or how the parties react to the situation after the fact.
In addition, many cases involve allegations of sexual misconduct in long-term relationships, not just one-night stands. Rape and domestic violence obviously do occur between students on college campuses, and there is no doubt that discipline (and potentially criminal charges) may be warranted in these cases. However, because relationship violence may be defined quite broadly to include emotional and psychological manipulation or abuse, it is important to understand the scope of the school’s specific policy and for the students to understand that their behavior in a relationship, including their phone/text communications, social media interactions (i.e., Snapchat, Instagram, Facebook), and other conduct, could create possible exposure to claims of relationship violence. We have seen particularly concerning allegations of relationship violence against students who were suffering from mental illness (including those who were in crisis or suicidal) and even as counterclaims against complainants for their understandably emotional responses to being raped or sexually assaulted. We have found that many schools are singularly focused on their compliance obligations under Title IX, thereby proceeding to disciplinary actions in these matters, rather than focusing on the mental health needs of their students.
Sexual harassment and other misconduct can also be quite broadly defined at many schools. Under Title IX, sexual harassment is defined as: (1) quid pro quo harassment (meaning “an employee of the recipient [school] conditions the provision of an aid, benefit, or service of the recipient [school] on an individual’s participation in unwelcome sexual conduct”); (2) certain criminal sexual acts; and (3) “unwelcome conduct determined by a reasonable person to be so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the recipient [school’s] education program or activity.” As I discussed in more depth here, this definition is substantially narrower than other definitions of sexual harassment in other areas of law. But in addition to the Title IX definition of sexual harassment, many schools have a second definition that they will apply to cases that fall outside of the Title IX regulations. This definition is commonly something like “severe, pervasive, or persistent unwelcome conduct of a sexual nature that creates a hostile environment.”
Examples of the latter could include innuendo or jokes about sex or gender-specific traits, sexual rumors or ratings, or display or distribution of sexually explicit pictures or photographs. Students should be aware that with social media, sexually offensive content may get distributed much further than students intend, even with apps like Snapchat, that purportedly delete content – texts and photos get saved and circulated beyond the original sender’s control. Dissemination of such content could have ramifications under Title IX and even under criminal statutes and civil privacy laws. Moreover, schools have wide latitude to set rules for the conduct of their students, so actions that might not meet the definition of sexual harassment under Title IX or a sexual misconduct policy could still violate other school policies.
Familiarize Yourself with the School’s Rules and Advise Your Child to Understand Their Rights and Obligations
Although schools may claim to provide sexual assault and harassment training to their incoming students, in reality, many of these schools provide very limited guidance to their students (mostly through online modules that have little impact), if they do so at all. And much of this training comes too little, too late, for incoming students who are thrown into social interactions with their new classmates on social media and in person before the first day of classes even begins. It is important to prepare yourself thoroughly, reviewing the handbook policies and encouraging your child to understand their rights and obligations. Specifically, every entering student should know the specific sexual misconduct policies at their schools, including what constitutes consent, harassment, and relationship abuse; when they are obligated or encouraged as a bystander to report misconduct; and where to report behavior that rises to the level of a policy violation. A student with a concern can talk to some people on campus confidentially – often including therapists, mental health counselors, and chaplains – to seek guidance without starting a disciplinary process, while many others – often including resident assistants, advisors, and deans – would be obligated to report an allegation of sexual misconduct. The Title IX policy at each school should contain lists of both confidential and non-confidential resources. Students should also know that many schools have alcohol/drug amnesty rules that encourage reporting and cooperating with investigations even if students have engaged in underage drinking or illicit drug use.
Students should also be aware that they may be approached by either the police or the Title IX office if they are accused of sexual misconduct. Even if they believe they have done nothing wrong and have nothing to hide, virtually any student would be better off with the advice of counsel before deciding whether and how to engage with these officials. With the police (including campus police as well as state or local police), they have the constitutional right to remain silent and should not answer any questions without the advice of counsel. Students should also avoid giving substantive statements to the Title IX coordinator or investigator without first getting notice of the charges, the applicable procedures, and seeking counsel from a lawyer. Lawyers are permitted to serve as students’ advisers in Title IX and other sexual misconduct proceedings, and be present with the student at all stages of the Title IX process, including at a hearing where the adviser can cross-examine witnesses and the other party. We often hear from students after they have been approached by the Title IX office and have already provided a substantive statement, which (due to mistakes, misunderstandings, or flawed memory) risks being inconsistent with documentary evidence (such as text messages) or witness statements. Both complainants and accused students should take care not to delete any text messages or social media, which may be critical evidence supporting their claims or defenses.
Parents also sometimes attempt to intervene to influence school officials, which is rarely if ever effective. Schools expect their students to act like the adults they are and be responsible enough to handle the communications with the Title IX administrators without excessive parental involvement. Although there is nothing wrong with parents contacting administrators to try to understand the process and their children’s rights, anything that the administrators see as interference is likely to backfire.
The best way for you to protect your son or daughter from being subjected to or accused of sexual misconduct is to encourage them to learn the school’s policies, understand what behavior is and is not permitted, and comply with those rules. If a Title IX investigation ensues, the school is obligated to follow its own rules as well. If it fails to abide by its own rules, either by adequately responding to a complainant’s report of sexual misconduct or failing to afford an accused student their procedural rights under school policies, students may have legal claims under Title IX and applicable state laws, including contract law.
This post was updated in August 2021 to reflect the current state of federal Title IX regulations.
If you need to speak to a lawyer about a Title IX sexual assault or sexual harassment matter, please contact our Title IX lawyers at (617) 742-6020.