Sexual Harassment & Sexual Violence cases in Schools

With sexual harassment
and sexual violence matters dominating much of the headlines of late, one important area of concern has not been given the attention which it deserves.  Title IX of the Education Amendments of 1972 (“Title IX”), 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 receiving any federal funds must comply with Title IX.  Under Title IX, discrimination on the basis of sex can include sexual harassment or sexual violence, such as rape, sexual assault, sexual battery, and sexual coercion.

When a student alleges a complaint stating that they are a victim of sexual harassment and/or sexual violence, the school must respond “promptly and effectively” and begin its investigation.  If the school becomes aware of conduct that would constitute sexual harassment or violence, they must act regardless of the student’s desire.

Every school must have a written procedure they make available to the parties involved.  The complainant must prove his or her case by a “preponderance of the evidence” standard.  This means that they must convince the Title IX investigator that the misconduct is more likely to have occurred than not.  This is not a very high standard (think 50.1 percent chance the claimant is being truthful) and is much lower than the “beyond a reasonable doubt” standard of proof used in criminal court. One can be accused civilly with this standard but not be prosecuted criminally. While the respondent is given a summary list of allegations, he or she is not entitled to see the written statement of the claimant or given all of the details of the accusation. Even worse, most schools merely have the investigator interview all the relevant witnesses and review any items of evidence submitted and have the investigator make a decision based on what they have seen and heard. In these cases, there is not a formal “hearing” where the respondent can hear the details of the accusation or cross-examine witnesses, pointing out inconsistencies with their prior testimony or with testimony from other witnesses.   

Additionally, most schools require the respondent to speak for him or herself and not through their attorney or advisor.  This means that the attorney or advisor can prepare the respondent for his or her interview but it is the respondent that must answer all questions, assuming that they decide to participate in the interview process to begin with.  Because the claimant has the burden to prove the charge, it is theoretically possible for the respondent to win the “hearing” without participating, but choosing not to participate severely limits the chances of success as the investigator will only have one side of the story to consider.  A respondent may choose to not participate if there are criminal proceedings pending or they believe charges may be forthcoming in the future.   All witnesses appear voluntarily and neither the claimant nor respondent have the power to subpoena witnesses or documents, depose witnesses, or to submit written questions for witnesses.

Once the investigator has reviewed all of the evidence, they generate a report and if any of the allegations were found to be true, the school imposes a sanction.  The sanction can include a no contact order, the respondent changing classes, moving to a new residence hall, suspension, or expulsion.  The appellate process will vary from school to school, but must be the same for both the claimant and the respondent.  Title IX investigations are very different from court cases and while the respondent can face severe sanctions, he or she is not entitled to the same due process requirements that the court cases give to a defendant.

It’s dangerous out there.  More injustices occur with sex related cases than with any other.  More innocent people are falsely accused and more guilty people beat charges than any other type of case as it’s often a swearing contest between two people and the subjective evaluation as to which is the most believable.  Times have changed and the public’s understanding as to what is permissible and actionable will keep this issue in the forefront for a long time to come.

Eric Barker, Partner with NeJame Law & Mark NeJame jointly contributed to this article.