Representing College Faculty and Staff in Title IX Cases

Title IX of the Higher Education Act of 1965 (often called the Education Amendments of 1972) provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .”  The federal courts have interpreted gender discrimination under Title IX as including sexual assault and sexual harassment, and colleges and universities use Title IX as the basis for adjudicating assault and harassment allegations. 

Conrad O’Brien’s Title IX/Campus Discipline practice group has traditionally represented both accused and complainant students in college disciplinary proceedings, but in recent years our practice has expanded to include college faculty and staff as clients.

Although much of the commentary--and controversy—around campus Title IX proceedings has focused on student-versus-student cases, the issues facing faculty members accused of sexual assault, harassment and other alleged offenses under Title IX are no less serious and life-altering:

• Hard-earned tenured positions are potentially at risk
• Professional reputations that took decades to build can be tarnished forever

In short, a Title IX proceeding—even one that exonerates the respondent--can fundamentally impair the ability of an accused professor or staffer to earn a living.

How are Title IX proceedings involving faculty similar to student-only claims?

Student-only Title IX proceedings and those involving faculty as one of the parties share many of the same pitfalls, including:

• A lack of established procedural and evidentiary protocols (many schools make inconsistent, ad hoc decisions about how each claim and case proceeds)
• “Trauma-informed” approaches to dealing with complaints and accusers that presume that all “survivors” and their versions of the facts must be believed
• Claim investigators who also serve as the ultimate decision makers (judge and jury)
• Due process deficits, including insufficient advance notice of charges and allegations, limitations on the right to be represented or advised by counsel, and limited rights to question and cross-examine accusers
• A standard of proof based on “preponderance of the evidence” rather than “clear and convincing”
• A lack of informal, mediation-based approaches for resolving complaints

How are Title IX proceedings involving faculty different from student-only claims?

There are, however, a few significant ways that a Title IX case with a faculty or staff member as a party differs from a student-versus-student proceeding:

Multiple Sources of Procedures and Rights

Because faculty cases involve a school employee or contractor as a respondent in a Title IX proceeding, there are many possible avenues that may apply regarding procedural rules or potential rights available to our clients. This analysis can be a challenge because the procedural regime can depend on the type of school (e.g, public versus private), the faculty or staffer’s status (contractor, non-tenured, tenured), the nature of the charges, and whether the complainant is a student or colleague. Procedures, rules and policies can be memorialized in:

• State statutes (if the school is public)
• Employee Handbooks
• Faculty or Student Handbooks
• Faculty Discipline Policies
• Tenure Policies
• Conduct Codes
• Sexual Harassment/Misconduct Policies
• Collective Bargaining Agreements (if faculty is unionized)
• Employment Agreements

The goal is to obtain a hearing and resolution procedure that affords our client a maximum degree of due process and the most favorable evidentiary standard/burden of proof. However, even in cases where there is an objectively “correct” answer as to the proper procedure to follow, schools do not always comply with their own policies.

Potential Availability of Employment Law Claims

As employees of the school bringing the Title IX proceeding, faculty respondents may have a right to bring employment-related counterclaims (or commence separate employment-related lawsuits). Possible employment claims include:

Title VII of the Civil Rights Act of 1964

• Discrimination
• Retaliation (for exercising protected rights)
• Disparate impact

Title IX

• Erroneous outcome or selective enforcement (most common)
• Deliberate indifference and archaic assumptions (less common)
• Retaliation

(A technical note: the federal US Courts of Appeal are split on whether an employee of an educational institution can sue for damages under Title IX or is limited to seeking redress under Title VII. Currently, the Third, Fourth and Sixth Circuits allow damage claims under both statutes while the Fifth and Seventh Circuits have ruled that Title VII is the exclusive avenue of relief.)

State law antidiscrimination claims

• Some states track federal laws
• Other states require different elements to pursue a claim or offer different forms of relief
• Some states permit disparate impact claims

Breach of employment contract

• If respondent has a written contract
   

Hostile Environment/Protected Speech Issues

Title IX proceedings involving faculty or college staffers sometimes arise from speech or other conduct that falls short of sexual assault or harassment but is alleged to create a so-called “hostile environment” that constitutes gender discrimination. Although hostile environment claims are a long-standing feature of Title VII employment discrimination litigation, when such claims are extended to the university context through Title IX, they often arise because complainants take issue with the content of a professor’s teaching, research or extramural speech.

Some common scenarios giving rise to this type of hostile environment claim include:

• A professor’s courses or research having sexual or gendered subject matter.
• A professor using sexual language or obscenities in lectures or in casual conversation with students and colleagues.

As with other Title IX proceedings, we work to protect the respondent’s career and reputation by obtaining from the school a hearing and resolution procedure that adjudicates the matter as something other than a sexual assault. In campus hostile environment claims, the underlying issues are often related to academic freedom, protected speech, and faculty self-governance and should be resolved in a process appropriate to that subject matter. The gender discrimination/sexual harassment proceedings formulated by Title IX administrators or campus offices of inclusion are not designed to consider the accuser’s allegations in the context of a professor’s academic work.

***

If you are a professor, faculty member or staff person at a college or university facing a Title IX proceeding, contact one of our Title IX/Campus Discipline attorneys to discuss your matter.