TITLE IX

Title IX Defense Attorney

 

What is Title IX and how does it apply to me?

Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et seq., is a Federal civil rights law that prohibits discrimination on the basis of sex in education programs and activities.  All public and private elementary and secondary schools, school districts, colleges, and universities (“school”) receiving any Federal funds must comply with Title IX. 

If you attend a private school and that school accepts any federal funds your private school is obligated like every public school to comply with and enforce the provisions of Title IX.

Under Title IX, discrimination on the basis of sex includes claims of sexual harassment or sexual violence, such as rape, sexual assault, sexual battery, and sexual coercion.

Under Title IX every school must create procedures for students to file complaints for discrimination – including sexual harassment or sexual violence and every school must develop a plan for those complaints to be adjudicated.

Mertes Law lawyers are experienced Title IX attorneys whose advice and assistance can make a winning difference in your case.

What is a Title IX Respondent?

If you have been accused of sexual harassment or sexual violence in your school you are a respondent – that is someone who is responding to a Title IX complaint.

The prohibitions on sexual harassment or sexual violence in a Title IX investigation track what you would find to be prohibited sexual conduct found in most criminal codes, which also means that if you are the target of a Title IX investigation by your school you must assume that you are, or could also be, the focus of a parallel criminal investigation.

To put things in perspective – in a Title IX case you are facing a potential school sanction which can include suspension, expulsion, or even retroactive withdrawal of an earned degree, as well as the stigma that comes from having a school transcript documenting those sanctions by your school.  This goes further when you consider the secondary effect of school sanctions on your ability to enroll in other schools and compete for that perfect job.  In the context of a criminal case – you can be prosecuted and, if the charges are proven beyond a reasonable doubt, be sentenced to jail, prison, or a term of supervised probation. Individuals who are convicted of sex crimes are required to be evaluated, treated, and registered as sex offenders. 

Lack of consent is often a lynch-pin allegation in a Title IX case.  This means that you can be accused of sexual misconduct after what you thought was a consensual sexual encounter because one party asserts that they were too intoxicated to consent, or that they did not consent to every aspect of the sexual encounter. A thorough investigation of the claim by an experienced Title IX lawyer is often the key to winning a case involving questions of consent.

If you are a student or school employee who has just learned of a Title IX complaint or investigation focused on you – it is imperative that you have an experienced student conduct and Title IX defense attorney by your side from the very beginning.

Please note: Title IX rules governing secondary schools do differ from Title IX rules governing post-secondary (or after high-school) schools.  The following primarily concerns post-secondary schools.

What rights do I have in a Title IX investigation?

The United States Department of Education has issued new Title IX rules, effective August 1, 2024, which have significantly cut-back on the rights of respondent students accused of sexual misconduct. For instance, where under the 202o Title IX rules you were entitled to access to a school’s entire investigative file, your school may now limit what you receive to a summary report, and where you were previously entitled to a live hearing with cross-examination, your school may choose to abolish live hearings. 

Once a school initiates a sexual misconduct investigation it must provide you with written notice and sufficient time to prepare a response before any initial interview.

Your school is required to presume that you are not responsible for any allegation of sex-based harassment until a determination is made at the conclusion of the grievance procedures.

You have the right and opportunity to present relevant and admissible evidence to a decision-maker who is required to be trained and impartial.

You have the right to have an advisor of your choice, and that advisor may be a Title IX defense attorney to help you navigate and defend against the allegations made against you.

You are entitled to have an opportunity to access relevant and admissible evidence or an investigative report that accurately summarizes the evidence collected in your school’s investigation. If your school provides access to an investigative report you are also entitled an equal opportunity to access to the relevant and admissible evidence upon the request of any party.

You must be informed if your school’s policy or code of conduct prohibits knowingly making false statements or knowingly submitting false information during the grievance procedure.

You must be informed and provided written notice if, in the course of an investigation, your school decides to investigate additional allegations of sex-based harassment made against you which were not previously included in the school’s written notice. However, if your school can articulate reasonable concerns for the safety of any person as a result of providing this notice, based on individualized safety and risk analysis and not on mere speculation or stereotypes, it may reasonably delay providing the required written in order to address the safety concern appropriately.

During the investigation of a complaint concerning sexual misconduct your school must provide you with written notice of the date, time, location, participants, and purpose of all meetings or proceedings with sufficient time for the party to prepare to participate.

Your school must provide all parties the same opportunities to be accompanied to any meeting or proceeding by the advisor of their choice; however, your school may establish restrictions regarding the extent to which the advisor may participate in the grievance procedures, as long as the restrictions apply equally to the parties. In action, this means that under the 2024 Title IX rules your school can regulate when, and if, your advisor speaks.

Your school must provide the parties with the same opportunities, if any, to have support persons other than the advisor of the parties’ choice present during any meeting or proceeding.

Your school has now has discretion to determine whether you may present expert witnesses as long as the determination applies equally to the parties.  Under the 2020 Title IX rules you were entitled to present expert testimony as a matter of right.

Your school must allow for the reasonable extension of timeframes on a case-by-case basis for good cause with written notice to the parties that includes the reason for the delay.

Your school must provide each party and their advisor with an equal opportunity to access the evidence that is relevant and admissible to the allegations of sexual misconduct, including access either the relevant and admissible evidence, or the same written investigative report that accurately summarizes this evidence. If your school the provides access to an investigative report, it must further provide the parties with an equal opportunity to access the relevant and not otherwise impermissible evidence upon the request of any party.

Your school must provide the parties with a reasonable opportunity to review and respond to the evidence or the investigative report prior to the determination whether sex-based harassment occurred.

If your school provides a live hearing as part of its grievance procedures, it must provide an opportunity to review the evidence in advance of the live hearing; it is at the school’s discretion whether to provide this opportunity to respond prior to the live hearing, during the live hearing, or both prior to and during the live hearing.

Your school must also provide a process that enables the decisionmaker to question parties and witnesses to adequately assess a party’s or witness’s credibility to the extent credibility is both in dispute and relevant to evaluating one or more allegations of sexual misconduct.

If your school does not permit a live hearing it must allow the investigator or decisionmaker to ask such questions during individual meetings with a party or witness;

Your school must allow each party to propose such questions that the party wants asked of any party or witness and have those questions asked by the investigator or decisionmaker during one or more individual meetings, including follow-up meetings, with a party or witness.

Your school must provide each party with an audio or audiovisual recording or transcript with enough time for the party to have a reasonable opportunity to propose follow-up questions.

If your school chooses to conduct a live hearing it’s process for proposing and asking relevant and admissible questions and follow-up questions of parties and witnesses, including questions challenging credibility, must allow the decisionmaker to ask such questions, and either:

Allow each party to propose such questions that the party wants asked of any party or witness and have those questions asked by the decisionmaker, or, allow each party’s advisor to ask any party or witness such questions. Such questioning is required to be done by your advisor.

Your school must create an audio or audiovisual recording or transcript of any live hearing and make it available to the parties for inspection and review.

Your school must provide you with the opportunity to present fact witnesses and to present exculpatory evidence – that is, evidence which tends to show that you are not responsible for violating Title IX and the school’s code of conduct.  

Schools are prohibited from implementing gag orders that block you from discussing the allegations or seeking to gather evidence.

Your school must provide you with written notice of a dismissal (mandatory or discretionary) and the reasons for the dismissal.

Your school must protect the privacy of your medical, psychological, and similar treatment records. This means that your school cannot access private records unless the school obtains your voluntary, written consent to do so.

Your school must provide you with an opportunity to appeal an adverse finding of responsibility.

Contact the Mertes Law Title IX Defense Lawyers

Mertes Law is a premier Title IX defense firm located in Longmont, Colorado and specializing in advising and assisting accused students with a focused and aggressive defense to Title IX allegations of sexual misconduct. If you suspect that you may be under investigation by your school for an allegation of sexual misconduct, have received a Notice of Investigation or Notice of Allegation electronically or by mail, or received a phone call from a Title IX investigator, you need to contact the Title IX attorneys at Mertes Law today. Call 303-440-0123 now for a free consultation.

Title IX FAQ

Q: What is a Title IX Notice of Investigation or Allegation?

A: Title IX rules require that you be provided with Notice of a Title IX investigation. At most schools this comes in the form of an email or letter which is captioned “Notice of Investigation” (NOI) or “Notice of Allegation” (NOA). Receiving an NOI or NOA means that you have been targeted for investigation of sexual misconduct by your school and receipt of this Notice should trigger an immediate response: get the best Title IX legal representation on your case now.

Q: What does it mean when my school has signed a Memorandum of Understanding with law enforcement?

A: A “Memorandum of Understanding” or “MOU” is an agreement signed by officials of your school and law enforcement which expressly allows Title IX investigators to have some involvement in police investigations – often this begins with the interview of an alleged victim.  MOU’s blur the line between a Title IX investigation and a criminal prosecution and arguably make school investigators agents of the police.  MOU’s are one more reason why you need an attorney experienced in both criminal defense and defense of a Title IX claim on your side.

Q: What changes did the new Title IX Rules bring and when do they begin to apply?

A: The 2020 Title IX rules required schools to have a fair process which included a written complaint providing sufficient notice to an accused student, ensured that accused students were presumed innocent until proven responsible by their schools, required schools to disclose all of the evidence collected in their investigation to both the accuser and the accused, and guaranteed a live hearing conducted by someone other than the school’s investigator which included live cross-examination of the parties by the advisor of each involved student.

The 2024 Biden Title IX rules now take us on a journey backwards: eliminating a mandatory requirement that all the evidence collected in a school’s investigation be provided to both parties with a provision that allows a school to provide the parties with no more than an investigator’s summary of the evidence. A request for more than a summary of the evidence must now be formally made by a student and is permitted only if the school itself determines that the request is relevant.

The Biden Title IX rules also weaken an accused student’s presumption of innocence by allowing schools to remove accused students from their classrooms and dormitories, or to impose one-sided protection orders, so long as schools designate such actions as being a “supportive service” and not a disciplinary action.  

The 2024 Biden Title IX rules also took away easy access to a school’s Title IX training materials and eliminated that portion of Title IX rules which provided an accused student with the right to call expert witnesses, and for an accused student to enjoy the right to a live hearing with cross-examination.  As a result of the 2024 Biden Title IX rules many schools have chosen to return a single investigator model, one in which the school designates a single person to be judge, jury, and executioner in a sexual misconduct adjudication. 

Some schools have seen the writing on the wall and understand that the United States Supreme Court will someday determine whether politicians can neuter vital Constitutional rights involving Title IX adjudications of students who are accused of sexual misconduct.  These schools continue to provide their accused students with a live hearing conducted by a third party with cross-examination, and many other rights provided by the 2020 Title IX regulations – because it is the right thing to do.

Q: What can a Title IX defense attorney do to help?

A: An experienced Title IX defense attorney assists a respondent student by: explaining the process and policies used by their school, explaining the rights of the respondent, directing a thorough and aggressive investigation, providing preparation for an initial interview with investigators and a contested hearing where the respondent student faces cross-examination. A Title IX defense lawyer will work with a respondent student to prepare a blueprint for the presentation of a compelling case in which the respondent student’s truth is unmistakably laid out and explained and where the respondent student’s opportunity to be found not responsible is enhanced. A Title IX lawyer will be able to identify and challenge those schools who are not complying with the requirements of Title IX and a respondent student’s Constitutional Right of Due Process. An effective Title IX lawyer will walk a respondent student through the areas of greatest difficulty including those times when a respondent student faces having both a criminal investigation and a Title IX inquiry.