TITLE IX

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?

On February 4, 2025, the Department of Education issued new Guidance and Ordered that “Open Title IX investigations initiated under the 2024 Title IX Rule should be immediately reoriented to comport fully with the requirements of the 2020 Title IX Rule.” New Dept. of Education Dear Colleague Letter Confirms 2020 Title IX Regs in Effect  This new Guidance overturned short-lived Biden Administration Regulations.

What this means to you as an accused student is that if your school’s Title IX investigation began under the Biden Regulations that were briefly in place from August 2024 to January of 2025 that you demand that your school immediately apply the 2020 Regulation and its important Due Process protections to your on-going investigation.  This is an equally important for Title IX investigations that started after February 4, 2025 to ensure that your school got the “memo” and that they are now correctly applying the 2020 Regulation to the matter of your investigation.

Under the 2020 Regulation your school must provide you with the following rights:

Provide you with a Notice of Allegations.  Under Title IX, a school’s Notice of Allegations must include the specific policy that was allegedly violated and details of the alleged conduct, for example: any allegations concerning sexual harassment, sexual assault, dating violence, domestic violence, and stalking; the date and location of any incident; and, the identities of the parties involved.  Notice of Allegations must also provide information about the school’s grievance procedures, the parties’ rights (such as the right to an advisor), the presumption that the accused is not responsible, and contact information for the investigator or the Title IX Coordinator, a designated responsible person within an educational institution or organization who oversees and implements the institution’s efforts to comply with Title IX.  

Provide you with supportive measures. If a formal complaint is filed against you your school must offer you supportive measures, just as it does for an accuser.   This may include, but not be limited to, accommodations for housing, classes, access to instructors, study locations, and counselors.

Follow Title IX procedures. Your school must follow the Title IX grievance process which, as specified by the 2020 amendments, must be both prompt and equitable – with procedures written in language appropriate to the age of the school’s students, easily understood, and widely disseminated. 

Presume you to be innocent. Your school is required to presume that you are not responsible for alleged misconduct.

Provide you with a live hearing. All colleges and universities must provide their students with a live hearing, which may occur virtually “with technology enabling the decision-maker and parties to simultaneously see and hear the party or the witness answering questions,” however, elementary and secondary schools are not required to have a live hearing.

Permit cross-examination of witnesses and your accuser by your advisor. At a live hearing, “each party’s advisor must be permitted to to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility.”

Establish the burden of proof for finding you responsible. Your school’s grievance process must state whether the standard of evidence or proof to be used to determine responsibility in your case is the preponderance- of-the-evidence standard (whether alleged facts are more likely than not to be true) or the clear-and-convincing-evidence standard (whether it is “highly probable” that the alleged facts are true). 

 Informal resolution process – an important opportunity for an accused student

Not every school offers an accused student an “off-ramp” to Title IX allegations, however, where one exists it is critically important that you consider this opportunity to de-escalate and informally resolve an allegation of sexual misconduct rather than pursing a more time consuming and costly formal investigative process and formal hearing, which may be followed by an appeal and even potential litigation. 

The 2020 Regulations require that your school obtain both the complainant’s and the respondent’s voluntary, written consent before using any kind of “informal resolution” process, such as mediation or restorative justice. With the parties’ consent, schools have the freedom to allow the parties to choose an informal resolution mechanism that best suits their needs, however, if informal resolution is not successful in resolving the allegations either party can ask to resume the formal grievance process at any time prior to agreeing to a resolution.

An experienced Title IX Advisor is equipped to help you assess the value and opportunity presented by a school’s informal process.

Title IX FAQ

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.

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 Biden Administration make to the Title IX Regulations and are those changes still in effect?

For a brief period of time between August 2024 and January 2025, Title IX Regulations were rewritten by the Biden Administration in a fashion that harmed substantial due process rights owed to our students as previously provided under the 2020 Title IX Regulations brought to us during the first Trump Administration.  During this short-lived period the Biden regulations rewrote definitions applicable to sexual misconduct; created new rights and obligations focused on transgender individuals; minimized and eliminated important Constitutional protections for accused students, to include restricting access to a school’s entire Title IX investigative file and permitting schools to decide for themselves what was relevant to the investigation – instead of providing everything that the investigation uncovered to an accused student schools became empowered to provide accused students with a much more limited “summary” report detailing what the school itself felt was most important. Most critically, where students were previously entitled to a live hearing with cross-examination, schools were granted the option to abolish these important rights. 

On January 9, 2025 the U.S. District Court for the Eastern District of Kentucky, Judge Danny Reeves, vacated the Biden Title IX rule in its entirety in an order granting summary judgment to the plaintiff states (Tennessee et al) and denying summary judgment to the Department of Education.  

On February 3, 2025, the in-coming Trump Administration ordered that “Open Title IX investigations initiated under the 2024 Title IX Rule should be immediately reoriented to comport fully with the requirements of the 2020 Title IX Rule.” New Dept. of Education Dear Colleague Letter Confirms 2020 Title IX Regs in Effect.

Q:  Are we currently in a period of uncertainty concerning Title IX.

President Trump has vowed to eliminate the U.S. Department of Education (DOE) and under Secretary Linda McMahon’s leadership substantial firings of DOE employees have occurred.  Education Department Lays Off Nearly Half of Staff .  On July 14, 2025 the U.S. Supreme Court issued an order which permitted the DOE’s staff dismissal, a move considered by most to be a significant victory for the administration and an important part of President Trump’s efforts to sharply curtail the federal government’s role in the nation’s schools.

U.S. Representative Thomas Massie recently announced the reintroduction of H.R. 899, a bill to abolish the federal Department of Education. H.R. 899 is one sentence long, stating, “The Department of Education shall terminate on December 31, 2026.” Congress.gov page for the bill, H.R. 899

The cuts to staffing at the DOE, particularly in the Office of Civil Rights, have adversely impacted the Department’s ability to enforce it’s own regulations and therefore of the DOE to investigate the more blatant failure of some schools to comply with the 2020 Regulation. 

One particular concern is who will step into the shoes of the DOE when it comes to compliance if the DOE is abolished. While many State’s Rights supporters argue that student rights should be governed by the States – it can also be safely argued that the very unfairness that we witnessed with the short-lived Biden Regulations can easily fall upon us if Title IX becomes a political football subject to the whims of victim’s rights advocates at the State level – without regard to the necessity and requirements of Due Process.