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ANALYSIS
Title IX: A paradigm of legal nuance
Helene M. Weiss and Daniel Pollack｜ February 8, 2024
Title IX of the Education Amendments of 1972 affords protection from
discrimination based on sex in education programs or activities that
receive federal financial assistance. Schools subject to Title IX must
independently investigate claims of sex discrimination, assess
responsibility to a party (based on their own codes of conduct that are
compliant with Title IX), and administer any appropriate disciplinary
measures. Title IX investigations are supposed to be a fair and effective
tool to make informed decisions about student complaints. Not
surprisingly, the practical application of this federal law is often as
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nuanced as the behaviors that brought about the complaint to begin
with. A recent case demonstrates this very well.
In Matter of P.C. v. Stony Brook University (2023 N.Y. App. Div), a student
respondent was accused of violating several sections of the university’s
Code of Student Responsibility by “engaging in various forms of sexual
misconduct against [a fellow student].” As such, a Title IX investigation
into the conduct at question was initiated, and the University Review
Panel determined that the accused student was in fact responsible for
violating several sections of the university’s Code. Ultimately, the student
respondent was suspended.
However, the student appealed the university’s decision, which was
reversed by the Supreme Court of New York. The court held that the
University Review Panel “did not find that the [student victim] was
incapacitated by intoxication, and since there was no finding on
incapacitation, the only question before the court was whether
substantial evidence showed that the [student victim], while able to
consent, nevertheless did not do so.”
To some, this was a surprising judgment call. The court held that the
answer to that question was “no”—and that there was not substantial
evidence to prove the victim was “unable to consent”—and that the
Review Panel was “not left with adequate evidence to support the
conclusion that [the victim] had not affirmatively consented to the sexual
conduct in which she engaged with the petitioner.” As such, the
university vacated all penalties imposed upon the petitioner and
expunged any references regarding the incident from his academic
record.
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For victims of on-campus sexual assault, a decision like this one can be a
disturbing reminder of the exact rights that survivors of abuse are
afforded.
Due to the university’s inability to adequately determine incapacity—a
seeming error on behalf of the university’s Title IX panel—the court
ruled that there was not enough evidence to prove the student had not
“affirmatively consented” to the sexual acts in question. Thus, if a Title IX
administrative panel isn’t properly and thoroughly conducting their job,
the harsh and sobering consequences may fall on the claimant.
The Title IX hearing process is a grueling one. Students are expected to
submit to a panel, gather their own evidence, witnesses and an advisor
and put trust in their school’s administrative powers. When an
administrative panel fails to adequately conduct their review, or
completely neglects to analyze essential questions required to evaluate a
Title IX claim (such as incapacitation), miscarriages of justice can occur.
Had the Review Panel at Stony Brook conducted a thorough examination
into the ultimate questions at hand and evaluated the necessary element
of incapacitation, or had the university hired an outside Title IX Hearing
Officer to formally conduct the hearing in a manner that abides by the
university’s own rules, the victim in this case may have had a much
different outcome.
Unsurprisingly, the hiring and use of outside Title IX hearing officers by
university Title IX departments has become a more common practice in
recent years. As universities come to the realization that Title IX
proceedings and hearings require much more attention to complex and
subtle legal issues than most administrators or university professors are
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equipped to handle, outsourcing to an expert in the field has become a
desirable option for colleges, and one that leaves less room for error,
both for the accused and for the victim.
Title IX misconduct allegations can yield serious academic, psychological
and professional consequences for the claimant and the accused. For this
reason, the many nuances of Title IX work demand that attorneys be able
to advocate for appropriate and timely corrective actions with as little
disruption as possible.
Helene M. Weiss is a partner at the Marsh Law Firm in New York and
Special Professor of Law, Maurice A. Deane School of Law, Hofstra
University. Contact: heleneweiss@marsh.law. Daniel Pollack, MSW, JD, is
a professor at Yeshiva University’s School of Social Work in New York City.
Contact: dpollack@yu.edu.
Original link: https://www.law.com/newyorklawjournal/2024/02/08/title-ix-a-
paradigm-of-legal-nuance/