Criminal Defense Blog

Sara Caplan is a criminal defense attorney, and she also handles immigration matters. She was Of Counsel to Christensen, Miller, Fink, Jacobs, Glaser, Weil & Shapiro from 1995 to 2006, and before that had her own office and worked with Robert Shapiro, including representation of OJ Simpson and other well known celebrities athletes and musicians. She is a litigation attorney specializing in criminal defense (state and federal), professional administrative hearings (such as medical, dental, nursing, and real estate boards) and immigration matters.

Title IX Proceedings in Educational Institutions-Colleges and Universities

If you are a student in a federally-funded university or college and get involved in sexual misconduct, the school administration will likely handle your case as a Title IX proceeding. These proceedings are different from the typical criminal court proceedings. Most people associate the Title IX proceedings with equal representation of women during sports, especially in institutions with male and female versions of specific sports. Most people do not realize that Title IX law applies to all discrimination cases based on sex in education institutions.

Understanding Title IX Proceedings

The law requires all educational institutions to treat students equally without harassment and discrimination. No student should be discriminated against based on their gender. The rule applies to campus life, classroom activities, and events. Often, Title IX proceedings revolve around assault and sexual discrimination.

Some of the typical forms of sexual discrimination in educational institutions are:

  • Sexual abuse

  • Rape

  • Sexual assault

  • Sexual battery

  • Sexual harassment

  • Sexual coercion

  • Sexual misconduct

Title IX Compliance

Education institutions like universities and colleges are responsible for dealing with Title IX proceedings instead of the situation being handled by the court system. As long as an institution receives federal funding, it must be Title IX compliant and refrain from discrimination against students based on sex. The school must enter Title IX proceedings if there is any form of sexuality-related violence, harassment, assault, or misconduct.

While conducting Title IX proceedings, the school must stop any form of sexual violence and discrimination. To the best of its ability, the institution must rid the campus of the hostile environment and eliminate the effects of violence and discrimination.

Since Title IX proceedings aren't handled by the court system but by the education institutions, the accused person isn't subject to criminal punishment but could be expelled or suspended from the institution.

Lack of Constitutional Rights in Title IX Proceedings

One of the significant downsides of Title IX proceedings is that students do not enjoy constitutional rights like criminal court proceedings. The defendant isn't always allowed to have an attorney present during Title IX proceedings. In Title IX proceedings, defendants do not enjoy rights to:

  • Trial by jury

  • Speedy trial

  • To confront and question the accuser

  • To not incriminate themselves

Less Burden of Proof in Title IX Proceedings

The burden of proof is lower in Title IX proceedings. Therefore, the school will have a much easier time ruling against the student and imposing sanctions on them. The concept of "proof beyond a reasonable doubt," which is a requirement in a criminal conviction, doesn't apply in Title IX proceedings. Unlike in criminal court proceedings where the prosecutor must have compelling evidence for a defendant to be declared guilty, a student can be declared guilty under Title IX proceedings even with limited evidence against them.

Inadmissible Evidence in Court Proceedings is Accepted in Title IX Proceedings

In Title IX proceedings, sexual misconduct and assault allegations are handled differently from the criminal court system. It's common for evidence that would be inadmissible in a criminal court proceeding to be accepted in a Title IX proceeding. Title IX proceedings do not adhere to the reasonable doubt evidence. Instead, Title IX proceedings rely on the preponderance of the evidence. The preponderance of evidence only needs the school officials to prove, more likely than not, the student is guilty. The school officials are likely to judge in the victim's favor as long as the evidence points slightly to the victim's favor.

Some education institutions opt to use "clear and convincing evidence" over the "preponderance of the evidence." The burden of proof is higher in clear and convincing evidence than in the preponderance of the evidence. However, it is still much lower than the burden of proof is "beyond a reasonable doubt."

Most Famous Yet Most Controversial Civil Rights Law

Title IX is one of the most famous but controversial civil rights in the U.S. For many years, Title IX was recognized for its effect on college women's athletic rights. However, the law has other impacts on campus life as well. The law requires all federally-supported colleges and universities to comply with its requirements. This is virtually all colleges and universities because federal funding includes things like students' Stafford loans. Recently, there has been intense criticism of the extreme government's efforts to fight sexual discrimination and harassment in educational institutions in the name of Title IX. The implementation of Title IX often causes the government to overstep the constitution's boundaries and the law. Implementation of Title IX has led to the erosion of students' right to free speech and due process rights.

New and Improved Regulations

The U.S. Department of Education's Office for Civil Rights gave new directives on April 4, 2011, regarding how universities and colleges receiving federal funding should respond to sexual misconduct allegations. One of the directives was that schools should use the preponderance of evidence standard when handling sexual misconduct claims. The directive also outlined that if the university or college judicial process allows the defendant or the accused process to appeal the ruling, it should give the accusing student a right to appeal.

The directive discouraged education institutions from allowing the parties involved to cross-examining each other directly. After this directive, many colleges and universities chose to exclude the cross-examination part from their Title IX proceedings.

During Title IX proceedings, many institutions rarely allow students to be assisted by representatives. Campus procedures do not have the procedural safeguards available in civil and criminal proceedings. This leaves students with little or no chance of protecting themselves against incorrect findings or unjust outcomes.

New Title IX Regulations Published in 2018

On November 29, 2018, the Department of Education published new regulations to replace the former rules previously outlined. Upon publishing the new regulations, the department welcomed the public to comment on them. The department finalized the rules on May 6, 2020, and included several provisions that granted respondents several procedural safeguards.

The new Title IX regulations sought to improve the reliability and the fundamental fairness of Campus Title IX proceedings for the benefit of all. The new law proposes that:

  • Students accused of sexual misconduct should be granted live hearings with cross-examination.

  • The cross-examination should be conducted by an advisor of the student's choice; the advisor may be an attorney.

  • The accused student should be granted ample time and information to prepare for the hearing.

  • The accused students should be granted a presumption of innocence until they are proven guilty.

  • Impartial decision-makers and investigators

  • A legal requirement for all evidence to be under an objective regulation

  • The definition of sexual harassment is narrower under the new Title IX regulations than in the former rules. The new law defines sexual harassment as offensive or unwelcome conduct that a reasonable person would find pervasive, severe, or offensive.

  • Under the new Title IX regulations, domestic violence, stalking, and dating violence are considered examples of sexual harassment under Title IX.

The new regulations restored the education institutions' ability to use clear and convincing standards of evidence. The new Title IX regulations define sexual harassment in the same manner, it is defined by the U.S. Supreme Court. This definition ensures that education institutions have a clear path of responding to misconduct allegations. The definition also enhances the protection of the students' expressive rights. The new regulations affirmed the education institution's ability to use clear and convincing standards of evidence that the government had previously forced schools to abandon in 2011. The government had abolished the clear and convincing standard of evidence for the lower preponderance of evidence.

Between the issuance of the 2011 directive and the implementation of the 2020 regulations, numerous students filed lawsuits against universities and colleges for conducting unfair disciplinary proceedings.

Many organizations advocating for the rights of students sent letters to the government. They outlined the various problems that resulted from the implementation of Title IX. Much of the advocacy revolved around the standard of evidence used. However, many due process issues of the Title IX proceedings were uncovered. Many college students have no access even to the basic elements of a fair hearing. They don’t receive a notice of what they are supposed to have done and are not entitled to a presumption of innocence.

Why Students Should Be Concerned

Despite the withdrawal of the federal mandate requiring schools to rely on the preponderance of evidence in sexual misconduct hearings, many education institutions still keep the evidence requirements at low levels. Therefore, the campus court may find a student guilty of a crime for which the student would have been acquitted in a criminal court. In a campus court, panel members do not have to be federal mandate withdrawal sure before declaring a student guilty of sexual assault. The leniency in campus courts compromises students' rights.

Title IX proceedings threaten academic freedom, necessary for teaching, extramural speech, research, and faculty governance. Some of the failures of Title IX include:

  • Title IX doesn't make a clear distinction between speech and conduct. It also doesn't distinguish between a hostile environment, sexual assault, and sexual harassment.

  • There is an overly broad definition of a hostile environment. This makes campus courts take punitive measures on faculty members for protected speech in research, teaching, and extramural context.

  • Title IX has led to the tendency of treating academic discussions revolving around sex and sexuality, including how they act as contributing factors to a hostile environment.

  • Title IX adopts low evidentiary standards while conducting sexual–harassment hearings. Many institutions still rely on the preponderance of evidence instead of relying on clear and convincing standards of evidence.

  • There is an increase in the corporatization of universities. This, in turn, frames and influences the implementation of Title IX by universities and colleges.

  • Title IX doesn't address gender inequality concerning race, sexuality, disability, class, and other dimensions in social inequality.

The current scope of Title IX interpretation has narrowed its focus on sexual assault and harassment on campus. The narrow scope isn't in line with the original objective of the legislation. Congress envisioned the legislation's purpose as protecting education opportunities for women, including athletics, higher education, career training, education, technology, and standardized testing.

The problem isn't just that the current focus of Title IX is solely on sexual violations. Title IX is also accompanied by a regulation that conflates sexual assault and misconduct with sexual harassment based on speech. This has led to the punishment of protected speech by faculty members, violating academic freedom.

Need for Change

Amendment of Title IX proceedings is necessary given the problems in interpreting and implementing legislation. It's essential to ensure that accused are assured of respect and protection of their procedural rights. The current interpretation and the implementation of Title IX in campuses promote inequalities on campus. There has been a rise in protests and student activism to curb institutionalized racial bias in colleges and universities. These protests indicate that Title IX implementation initiatives could be perpetuating race-based biases in schools. Some of the recommendations that could revert the situation are:

  • Universities and colleges should strengthen policies preventing academic freedom against the threats caused by extensive regulatory protocols and harassment policies.

  • University and college policies combating sexual harassment between speech that people might find hurtful but is protected under academic freedom from speech that qualifies as a hostile environment.

  • Faculty members should be involved in developing, implementing, and enforcing the sexual harassment policy. This is only possible through shared governance processes.

  • Universities and colleges shouldn't require all faculty members to act as mandatory reporters under Title IX.

  • For some forms of misconduct, universities and colleges should consider the adoption of restorative justice practices.

  • Campus initiatives should be sensitive to the potential bias in the enforcement process and sex discrimination claims. This will help them preserve the rights of the accused and the complainants.

  • Universities and colleges should fund sexuality, feminist, and gender studies to address inequality. This will help them to improve interdisciplinary learning on campus.

Find Reliable Guidance From an Attorney Near Me

If you face accusations under Title IX, you still have rights even if the constitution doesn't protect you. You should seek a Title IX defense attorney to help you with your situation. An attorney will guide you through the proceedings and prevent you from unfair judgment. For reliable guidance on Title IX sexual assault accusations in Los Angeles, CA, contact the Law Office of Sara L. Caplan at 310-550-5877. We will be glad to help you fight for your rights.

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