News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Title IX and Sexual Assault on College Campuses: Back to School Edition

beer-pong-768x512-1Whether you are heading off to your first year of college, or are returning for your fourth (or sixth, or ninth) year of higher education, you are likely aware that sexual assault prevention is a big issue on college and university campuses today. We represent students—both those who have experienced sexual assault or misconduct and those accused of sexual misconduct—in campus proceedings at colleges and universities around the country. Here is some information that all students should know before heading back to campus.

What is Title IX, and What Does It Mean for my School?

Title IX is the federal law that prohibits discrimination on the basis of sex in education. In addition to ensuring that there are equal athletic and educational opportunities for all students, it also requires schools to address and take steps to prevent sex-based discrimination on campus, including sexual harassment and sexual assault. If a school knows of sex-based discrimination on campus and does not adequately respond to it, a court may find the school has violated Title IX.

In practice, what that means for your school is that it is obligated to address complaints of sexual harassment, dating violence, and sexual assault if it learns of them. Almost every school has set up a Title IX office solely to address these kinds of complaints. The job of this office is to resolve those complaints – which often but not always entails a disciplinary process against the accused student.

What Do I Need to Know About My School’s Title IX Policy Before I Get to Campus?

If you are in Massachusetts, a new law went into effect this month imposing new requirements on schools. Even if you have previously reviewed your school’s policy, you should review the new policy to understand the changes that have been made.

Before heading to school, it is a good idea to look at how your school defines certain things, so that you know what behavior is permitted and what is prohibited. Things to look at include:

Does Your School have More than One Sexual Misconduct Policy?

Last August, new federal regulations went into effect that changed how schools must handle sexual misconduct cases (you can read our many blog posts on those regulations here). In response to those regulations, many schools developed two parallel tracks to handle sexual misconduct cases; one for cases that fall under the federal regulations, and one for other types of sexual misconduct. If you are involved in a sexual misconduct case, it is important to understand which process will apply.

How Does Your School Define Consent?

Most schools use an “affirmative consent” standard, which means that the school only considers sex acts consensual if there is “explicit, informed, and voluntary agreement” to each act. How that definition is used in practice varies from school to school – but at a minimum it means that when you engage in sexual activity with another person you have to get some kind of verbal or non-verbal indication that your partner is consenting to each act that you do together. You cannot assume you have consent absent your partner’s clear and affirmative indication. At many schools, a lack of objection isn’t enough, on its own, to indicate affirmative consent.

How Does Your School Treat Sex While Intoxicated?

Schools have different definitions of how drunk someone can be and still consent to sex. While some schools use the term “incapacitated” to define the line at which consensual drunk sex becomes non-consensual assault, others simply say “intoxicated,” a much lower level of drunkenness that is not easily defined.

Most school policies state that being incapacitated by drugs or alcohol does not relive a person of responsibility to get consent for sexual activity. Therefore, even if a student is so drunk as to not be in control of his or her actions, he or she can still be accused of and disciplined for sexual assault. Schools’ practices around addressing sexual misconduct cases involving drugs and alcohol can be complicated; we have had many clients involved in cases where both parties were so drunk they may have been incapacitated, and the school must then determine whether either or both students sexually assaulted one another.

How Does Your School Define Dating Violence?

An area of Title IX enforcement that has not gotten as much media attention as college sexual assault is campus prohibitions on dating violence. Most schools have a section in their policies dealing with domestic violence (between people who live together), and dating/intimate partner violence (between people with a dating or sexual relationship). These policies can vary enormously from school to school, and can be quite broad. Many policies prohibit physical, sexual, emotional, and psychological violence against a current or former partner.  So, for example, one school defines psychological violence to include “intimidation, economic control, manipulation, humiliation, isolation, coercion, and/or threat of harm to one’s self, an intimate partner, or the family members, friends, pets, or personal property of an intimate partner.” The concepts of emotional and psychological harm can be both vague and broad, so it is important to look at the examples your schools gives to understand what it will consider to be relationship violence. For example, some school policies list as examples of relationship violence: making you feel like you are walking on eggshells, knowingly exposing someone to an STI without their knowledge, progressive social isolation, or dictating how a partner dresses.

What Happens During a Disciplinary Proceeding?

Under the current federal regulations, sexual misconduct that falls under the regulations’ definitions must be addressed through a process that involves a live hearing with cross examination. Most schools begin with an investigation, conducted either by an outside investigator or a member of the school’s Title IX staff. That investigator interviews the parties and witnesses, and reviews relevant evidence, then comes up with a report summarizing the facts of the case. If the case falls under Title IX, it will then go to a hearing where the parties and witnesses will be questioned by a hearing panel, and where each party’s advisor can question the other party and witnesses. If the alleged conduct does not fall under Title IX, schools have more discretion to decide if the case will be decided based on the investigation and report, or whether there will also be a hearing.

What is a No Contact Order?

Often when a school starts an investigation it will issue a no-contact order between the complainant (the person who says they have experienced sexual harassment or assault) and the respondent (the person being accused of harassment or assault). In addition to directing the parties not to communicate with each other (either directly or indirectly), it may list buildings on campus the respondent cannot enter or require the respondent to stay a certain distance from the complainant. If the parties share classes or live in the same dorm, the school may change one party’s schedule or housing so the two are no longer near each other. Violation of the order by either party is a separate disciplinary offense that the school can investigate and discipline a student for, so it is critical to understand the order and follow it.

What are Interim Measures?

Schools often provide “interim measures” to the complainants (and sometimes, respondents) involved in Title IX processes. These include things like: extensions on schoolwork, excused absences from class, mental health and therapy services, and changes to housing and class schedules of one or both parties. If you become involved in a Title IX process and need accommodations to your academic program or housing, you can ask the Title IX office to provide you with interim measures.

Are these Processes Confidential?

Most schools say that they make efforts to keep disciplinary proceedings confidential. Each school has different rules regarding confidentiality, so if you find yourself involved in a sexual misconduct proceeding (either as a complainant or respondent), it is important to understand what your school’s confidentiality provisions mean.

What is Retaliation?

In the context of a Title IX matter, retaliation refers to someone taking harmful action against another person because that person has made a complaint or participated in an investigatory or disciplinary process. Retaliation is prohibited by school policies, and generally constitutes a separate offense that the school can investigate and discipline a student for. Both complainants and respondents can be the subjects of retaliation for their participation in school processes.

What Rights do Students Have in School Title IX processes?

Both complainants and respondents have certain rights under the law during this process that are aimed at ensuring that the process is “prompt, fair, and impartial.” For cases that fall under the Title IX regulations, those rights include:

  • Notice of the procedure that will be used;
  • Notice of the allegations including the people involved, the conduct alleged, and the date and location of the incident;
  • The respondent has a right to a presumption that they are not responsible;
  • The right to have an advisor, which includes the right to have an attorney as an advisor;
  • The opportunity to present witnesses and other evidence, including expert witnesses;
  • The opportunity to review any evidence obtained in the investigation that directly relates to the allegations;
  • The opportunity to review and respond to any investigation report before it is completed;
  • The right for the party’s advisor to cross-examine witnesses and the other party (if the party doesn’t have an advisor the school must provide one);
  • An impartial decisionmaker;
  • A written decision explaining the reasons for the decision;
  • A right to appeal the decision on certain grounds.

 

In addition to these rights, and any rights provided by laws specific to your state, your school must follow its own policies and procedures in handling the case. If you attend a public school, you have a right to due process in any proceeding against you. In the last few years courts have been increasingly called on to determine what procedural protections are necessary for school misconduct processes. In addition to reviewing your school handbook, it may be important to talk to a lawyer to understand where the law stands in your state, and what rights you may have as a student involved in one of these proceedings.

What if the Complainant Doesn’t Want There to be a Disciplinary Process?

Under Title IX complainants should be able to get help and support from their schools without filing formal charges. They can also seek informal resolution of complaints, which usually involves a mediation by the Title IX office to see if it can come up with a resolution that both parties agree with. If the allegations fall under Title IX, informal resolution is not allowed in cases where a student alleges an employee harassed them.

Do I Need a Lawyer?

Students are allowed to have lawyers serve as their advisors in the Title IX process. While advisors can’t speak for the student, they can conduct examination during hearings, and at many schools make arguments about why certain testimony is or is not relevant. In our experience, lawyers can be critical to helping students successfully identify the issues in their cases and effectively present them to the people making decisions. For example, our lawyers can help students:

  • Identify and collect the evidence that is relevant to the case;
  • Obtain expert witnesses to evaluate scientific issues that might arise in the case, such as the effects of alcohol or drugs, the impact of mental health issues one or the other party may have, or how to interpret and explain medical reports;
  • Identify legal deficiencies in the procedures the schools provide, and assist students in asserting their right to a fair procedure;
  • Prepare students for testifying at hearings;
  • Cross-examine witnesses and the other party and preserve objections to the relevance of the evidence that is presented at hearings;
  • Help students craft appeals that meet the requirements set by the schools.

 

In addition, where the conduct either party has engaged in may violate criminal laws, a criminal defense lawyer is critical to ensuring that your participation in the school process does not increase the risk that you will be criminally prosecuted, or make it more likely that you will be found guilty in a criminal court.

Finally, if your school fails to provide you with a process that meets the legal standards set out by federal regulations and state and federal courts, a lawyer can help you vindicate your rights in court.

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Your school expects you to know the school policies, to understand what behavior the school does and does not permit, and to abide by their rules. Your relationship with your school provides you with both rights and obligations; and you are entitled to assert those rights both within the school and through the legal system if the school engages in a process that does not respect them.

This post was updated in August 2021 to reflect the current state of Title IX and Massachusetts state law.

If you need to speak to a lawyer about a campus sexual assault matter, please contact our Title IX lawyers at (617) 742-6020.

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