Under Title IX, schools must disseminate a notice of nondiscrimination. This notice does not have to specify that sexual harassment and violence are likewise prohibited, but the U.S. Department of Education (ED) recommends that schools do, since a notice that makes it unclear may qualify as a violation of Title IX. This notice is likely available in a student handbook or code of conduct in elementary and secondary schools and in an Annual Security Report (ASR) in higher education institutions.
This notice prohibiting sex discrimination must be widely distributed, available, and easily accessible to the school community each year. ED recommends schools:
- Publish this policy online and have it available in print across campus so that school members may understand its purpose and utility
- Include enough detail in the policy so that members of the community can realize sexual harassment and sexual violence are prohibited forms of sex discrimination.
The DCL requires every educational institution receiving federal funding to have a Title IX Coordinator. The contact information (name/title, office address, telephone number, email address) of the Coordinator should be available both in your school’s nondiscrimination notice, but also in an ASR for higher education institutions. Both victims and third parties should contact the Coordinator to report incidents of sex discrimination, sexual harassment, or sexual violence.
The Title IX Coordinator ensures schools are compliant with Title IX, coordinates the investigation and disciplinary process, and looks for patterns or systematic problems with compliance to ensure schools fulfill all their federal obligations. The Coordinator may not have any other job responsibility that creates a conflict of interest with their responsibilities under Title IX. For example, the Title IX coordinator may not also sit on a disciplinary board or serve as legal counsel to the college.
- When a school does not have a Title IX Coordinator or list that individual’s contact information, then your college is non-compliant with Title IX.
- If the Coordinator has another job responsibility that creates conflicts of interest, your school is likely in violation of Title IX.
Schools are required to adopt and publish a grievance procedure outlining the complaint, investigation, and disciplinary process for addressing sex discrimination, sexual harassment, and sexual violence occurring within educational programs. This process should address discrimination perpetrated by students, employees, or third parties. Additionally, school security and/or law enforcement personnel must notify victims of their rights to use the school’s grievance procedure in addition to being able to file a criminal complaint.
This grievance procedure requires the school’s process be “prompt and equitable,” meaning it must be a timely response to discrimination and provide both parties equivalent rights during the disciplinary process rather than having one-sided due process. For example, if the accused student is given a right to have an attorney present, so may the accusing student.
While sexual harassment complaints may be resolved through informal mechanisms, such as mediation, students are not required to use such a process. Mediation is not appropriate for sexual violence complaints. A school that requires mediation or offers it as a mechanism to resolve a sexual violence complaint are in violation of Title IX.
In addition to being obligated to victims, schools must address hostile educational environments created by sex discrimination, sexual harassment, and sexual violence school-wide. Addressing a hostile environment means remedying a current situation, addressing its effects, and preventing its recurrence in the future. Schools may meet this obligation through providing educational and awareness programming on sexual harassment or discrimination.
Both the Clery Act and the DCL require school employees that address sexual violence complaints to have appropriate training. ED also recommends that professors, campus police, administrators, counselors, health center staff, cleaning staff, coaches, resident advisers and others likely to receive reports be trained on how to identify and report sexual harassment and violence.
According to the Department of Education, schools need to:
- Ensure that responsible employees with the authority to address sexual violence know how to respond appropriately to reports of sexual violence; that other responsible employees know that they are obligated to report sexual violence to appropriate school officials; and that all other employees understand how to respond to reports of sexual violence.
- Make sure professional counselors, pastoral counselors, and non-professional counselors or advocates understand the extent to which they may keep a report confidential.
- Provide training to all employees likely to witness or receive reports of sexual violence, including teachers, professors, school law enforcement unit employees, school administrators, school counselors, general counsels, athletic coaches, health personnel, and resident advisors.
A school also should train responsible employees to inform students of:
- The reporting obligations of responsible employees;
- Students’ option to request confidentiality and available confidential advocacy, counseling, or other support services; and
- Their right to file a Title IX complaint with the school and to report a crime to campus or local law enforcement.
Schools are required to be prompt when receiving a complaint of sex discrimination, sexual harassment, or sexual violence in order to remedy any hostile educational environment created by such behaviors. ED recommends investigations take no more than 60 calendar days, while allowing more complex cases to be addressed within a reasonable time-frame. A simultaneous police investigation does not remove a school’s responsibility to resolve a complaint under Title IX. While a school may delay its response to accommodate a police investigation, ED suggests only three to 10 days is sufficient for police to gather evidence. Schools that delay the Title IX complaint process unreasonably are in violation of Title IX.
The DCL reminded schools that they have an obligation under the Clery Act to inform victims of their reporting options. Schools must notify victims of their right to report to police and facilitate that process if desired by the victim. Victims also have the right not to report to the police.
Regardless of a victim’s choice to report to the police, a victim may use a school’s grievance procedure to address sexual harassment or sexual violence or merely seek accommodations. When reasonable, schools must accommodate a victim on campus to remedy a hostile environment on a school’s campus. This means schools may change academic or extracurricular schedules to prevent an ongoing hostile education environment or put in place safety measures, such as a no contact directive or facilitate a student obtaining a restraining order. The burden of accommodations or safety measures should not be solely placed on the victim, as this may be seen as a violation of Title IX.
Under Title IX, both the accuser and accused have equal rights, such as the right to:
- Have an adviser of choice present during the process (this includes an attorney if allowed at all by schools)
- Present evidence or have witnesses speak on their behalf
- Have timely access to information that will be used at the hearing
- Be present at pre-hearing meetings that provide an opportunity to present their testimony
- Receive the final hearing decision in writing at the same time as the other party without being required to sign a non-disclosure agreement
- Have the right to appeal a final decision
- The DCL warns schools creating a disciplinary system requiring the accused and accuser to directly interact may be re-traumatizing and discourages this practice
In addition, since Title IX is a federal civil right, the appropriate standard of evidence is a “preponderance of the evidence.” This standard of evidence means that a hearing must determine whether a complaint of sex discrimination is “more likely than not” to have occurred or 51% likely to have occurred. This standard applies for all complaints of sex discrimination, including sexual harassment and violence, because Title IX outlines standards for school disciplinary processes — not criminal complaints, which require the highest standard of evidence, “beyond a reasonable doubt.”
As a federal civil right, Title IX automatically protects any individual who reports sex discrimination, sexual harassment, or sexual violence against retaliation. This means employees and third party reports are protected along with reporting victims from any adverse consequence, harassment, intimidation, or discrimination that is causally related to reporting sex discrimination under Title IX. Schools must protect against other employees or students retaliating against a reporter when it “knows or should know” about the retaliatory harassment or behavior. If a school discourages or threatens you about discussing complaints of sex discrimination, sexual harassment, or sexual violence, this may be considered retaliation.