HOW THE DEPARTMENT OF EDUCATION GUIDES SCHOOLS IN “DEAR COLLEAGUE” LETTERS

“Education has long been recognized as the great equalizer in America. […] The sexual harassment of students, including sexual violence, interferes with students’ right to receive an education free from discrimination and, in the case of sexual violence, is a crime.” – U.S. Dept. of Education, “Dear Colleague” Letter (April 2011)

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Title IX of the Education Amendments was passed in 1972. It was a legislative landmark aimed at prohibiting sex discrimination in higher education. Over the years, the Department of Education used Title IX to enforce policies that prohibit sexual harassment and violence in university settings.

In one of its well-known “Dear Colleague” letters, the Office for Civil Rights (OCR) of the Department of Education reminded colleges and universities of their responsibility under Title IX to investigate and take action against sexual misconduct. These letters are sent to colleges and universities across the country. They inform policy development and are key tools for Title IX coordinators. The letters specifically describe what colleges and universities are required to do regarding sexual violence among students.

Decades Of Experience In Title IX Defense

Marcilliat & Mills PLLC is a premier North Carolina law firm focusing on defense against serious allegations such as sexual misconduct. Our offices across North Carolina serve clients accused of sexual misconduct in college and university settings. With decades of award-winning experience, our attorneys can help you:

  • Review school policies
  • Stand up for you in school disciplinary proceedings
  • Present as strong defense
  • Protect your rights both in school investigations and in criminal investigations, should the school refer your case to law enforcement

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School Requirements Under Title IX

In its 2011 Dear Colleague letter, the OCR writes that it is the responsibility of colleges and universities to “take immediate and effective steps to end sexual harassment and sexual violence.”

In a separate Dear Colleague letter ( available here in PDF format), the OCR reminds schools that they must invest school employees, called Title IX Coordinators, with the power to conduct investigations and take disciplinary action against students who are accused of assault, coercion, or other sexual misconduct.

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Why You Need To Care About The Dear Colleague Letters

Colleges and universities develop sexual harassment policies to stay compliant with federal law. If schools are not Title IX compliant, they risk losing federal funds. When terms are vague, like “sexual act,” schools need guidance on what that means. How the Dear Colleague letter interprets sexual acts and sexual harassment determines, in large part, how schools create and enforce their policies.

And, the Dear Colleague letters offer guidance on more than just what constitutes misconduct. They also provide guidelines for determining when those acts are relevant to an educational environment.

When you’re facing accusations of sexual misconduct, you’re risking much more than a ruined reputation. Suspension, expulsion and other harsh consequences are on the table. Even before any decision is reached, you may face social stigma and isolation as others rush to judgment. Discrimination and retaliation against the accused is very real.

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What’s The Definition Of Sexual Violence?

In one of its Dear Colleague letters, the Department of Education defines sexual violence. Educational institutions use this definition to form detailed school policies. Sexual violence is defined as:

  • Physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol. An individual also may be unable to give consent due to an intellectual or other disability.

The letter then answers the two critical questions that result from this definition: (1) What counts as a sexual act? and (2) What is consent?

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What Kinds Of Actions Are Prohibited By Title IX?

Some of the actions Title IX prohibits may appear straightforward. Some, however, are harder to interpret. Title IX prohibits the following sexual acts:

According to the Dear Colleague letter, “All such acts of sexual violence are forms of sexual harassment covered under Title IX.” In addition, many schools’ policies include taking pictures or video of sexual acts without consent as acts of sexual misconduct subject to disciplinary action.

If a school has cause, they may choose to also refer your case for a criminal investigation. If they do, anything you say during the school investigation can be used against you by prosecutors. Do not risk your future. Contact our attorneys for help protecting your rights.

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Understanding Consent In The Title IX Context

Consent is one of the key elements to sexual misconduct. However, consent isn’t always black or white, especially when alcohol is involved in college settings. Even someone who seems to be an enthusiastic participant at a drunken party may later be deemed incapable of consenting. The same goes for someone who doesn’t convey clearly, by words or actions, affirmative consent.

Consent can be complicated and is often difficult to establish. In Title IX cases, the accused often faces an uphill battle in proving consent. That’s why it’s so important to involve a lawyer early on.

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What Happens When An Assault Takes Place Off Campus?

In a Dear Colleague letter, the OCR addresses this issue. It writes that sexual assault or misconduct that occurs off campus should be addressed when:

  • It creates a hostile environment on campus. For instance, if an assault leads to social isolation on campus or damage to one’s educational environment.
  • The alleged victim files a complaint. If someone files a report with the school about a student or faculty member, the school must proceed with a reasonable investigation, even if the alleged action took place off campus.
  • The alleged violation occurs at or within the context of a school event. If an act allegedly occurred at a school’s sporting event, an educational event, an extracurricular event or during the course of an educational program, including during transportation and off-campus events, the school is expected to investigate.

Because schools can lose federal funding if they do not act on Title IX enforcement policies, some schools are quick to respond to less-than-credible Title IX complaints. If you are unsure whether a school’s investigation is appropriate, our legal counsel is available to help.

Schools across the nation rely on federal funding to stay open. If they do not comply with Title IX, they lose the funding they need to operate. This makes many schools rush investigations and harsh disciplinary action. Hire an attorney and protect your rights and reputation.

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What About Sexual Orientation And Gender Identity?

Sexual orientation and gender identity protections are not expressly mentioned in the 2011 Dear Colleague letter. Instead, the Supreme Court interprets Title IX protections based on sexual orientation in a series of court cases. This history begins with court rulings in Oncale v. Sundowner Offshore Serv., Inc. in 1998.

In 2016, the Department of Education released an additional Dear Colleague letter that outlined how Title IX compliance should apply when gender identity is a factor. However, the current administration and education secretary withdrew those instructions in 2018. As a result, the issue is still in question.

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Evidentiary Standards For Title IX Investigations

The Dear Colleague letter makes it very clear: even though a college or university investigation is not a criminal investigation and cannot be held to the same standards, any disciplinary action must be based on evidence.

Many are familiar with the idea of “beyond a reasonable doubt.” Fewer people have heard the term “preponderance of the evidence.” This standard means that school officials need only find that the alleged act is slightly more likely than not to have occurred. In light of recent guidance by the education department, some schools apply the “clear and convincing evidence” standard, which requires them to find substantial evidence that it was much more likely to have occurred than not.

In either case, these are much lower burdens of proof than the “beyond a reasonable doubt” standard that applies in criminal court. And that has serious implications for the accused.

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Let Us Fight For You – And For The Best Possible Outcome In Your Case

At Marcilliat & Mills PLLC, our attorneys are well versed in students’ rights and Title IX. We can protect your rights under Title IX and North Carolina law throughout misconduct cases. We will spare no effort in fighting to protect your reputation, help ensure that you stay on track to graduate on time, and maintain your eligibility for scholarships, federal financial assistance and other financial aid.

The U.S. Department of Education and its Office for Civil Rights (which enforces the law under Title IX) has made sexual misconduct and sexual violence a high priority. This means that any accusation – whether it has merit or not – is very likely to lead to an investigation and disciplinary action against the student who has been accused, especially when there’s no defense lawyer involved.

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The sooner you seek our help in defending against a Title IX investigation, the better. Call 919-838-6643 or send us an email for a FREE consultation. We have convenient offices in Raleigh, Charlotte, Greensboro, Wilmington and Waxhaw, and we defend students against Title IX investigations throughout North Carolina.

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