Title IX Frequently Asked Questions

Title IX is federal law that was enacted in 1972 to eliminate discrimination on the basis of sex – although the law was initially passed to combat sex discrimination in athletics, it is currently, and has been for over a decade, utilized to eliminate sexual harassment on college campuses. The law is codified at 20 U.S.C. § 1681 et seq. and 34 C.F.R. Part 106. Currently, the Office for Civil Rights, located within the Department of Education, is responsible for enforcing and ensuring that recipients of federal funds (i.e., colleges and universities) properly follow the federal law.

Title IX was largely unheard of by many until it was weaponized by the 2011 Dear Colleague Letter. Taking advantage of the language in 20 U.S.C. § 1681(a), the Office for Civil Rights issued the 2011 Dear Colleague Letter. The letter’s notoriety stems from its undesirable and blatant transgression of many procedural due process principles that a student attending a state university is guaranteed. Fortunately, this letter was subsequently rescinded in 2017 by the current Office for Civil Rights. Although rescinded, many universities still pledge fealty to the 2011 Dear Colleague Letter’s mandates, notwithstanding numerous cases requiring universities to significantly readjust and rectify their disciplinary procedures to conform to basic due process principles.

Upon receiving this notice, it is vital to carefully consider your next steps. The following suggestions are meant to assist you only and should not be construed as legal advice since each case is legally and factually unique. To start, depending on the allegation, there could be a simultaneous criminal investigation, so it is critical to refrain from discussing the allegations with anyone, including friends and university officials, until you speak with an attorney. While refraining from discussing this case, you should simultaneously seek legal advice, regardless of whether you decide not to retain an attorney.

The answer to this question varies depending on your university. However, generally, after a university conducts an investigation, a subsequent hearing is almost always inevitable – especially if the proposed regulations by the Office for Civil Rights are promulgated after the notice and comment period. A university Title IX hearing at a public college in Washington State procedurally resembles a trial in the sense that each party will have an opportunity to provide an opening statement, subpoena witnesses to testify, cross-examine witnesses, produce exhibits, make evidentiary objections, and provide closing statements. Prior to the hearing, the accused student or their attorney should have interviewed witnesses that each party intends to have testify (unless there are strategical reasons for not doing so), conducted a thorough examination of pertinent documents, and filed / argued any necessary motions to ensure the integrity of the hearing is not compromised. After the hearing, the presiding officer will generally have a certain period of time to draft and submit an initial order detailing whether the accused student is “responsible” or “not responsible”, and the sanction(s) imposed if there is a finding of “responsible.”

At this point, you need to ascertain whether an error was committed during the hearing, and if that error substantially prejudiced you. It is imperative that you raise every error that you believe occurred during the hearing, otherwise you may not be able to bring that particular issue to a court on judicial review, assuming that the university denies your appeal. Generally, each university has a different deadline in which an appeal must be submitted. If the appeal is not submitted within the deadline, or the procedures for appealing the decision are not followed, the university may outright deny your appeal prior to reaching the merits. As a result, you need to review the university’s rules to determine the correct procedure for appealing a decision. If an appeal is unsuccessful at the university level, there is always the option of petitioning the superior court in the county where the university resides to determine whether the university committed an error that substantially prejudiced your proceeding.