Title IX Terms and Definitions

Title IX is a federal law, enacted 50 years ago, which prohibits sex discrimination in federally funded educational programs and activities for schools and universities throughout the Country.  In the Spring of 2020, after a lengthy administrative proposal and review process, the United States Department of Education issued new Title IX Regulations (Regulations) that went into effect on August 14, 2020.  The Regulations included new procedures and requirements for schools and universities conducting Title IX investigations and outlined some new terminology for the revised process.  This article outlines some of the new, as well as the existing, terms, which apply to Title IX investigations and hearings in California.

Title IX definitions

Complainant:  A Complainant is generally defined as the person who has filed a complaint against the person accused of the alleged misconduct.  Under the Regulations, a “Complainant” is “an individual who is alleged to be the victim of conduct that could constitute sexual harassment.”

Respondent: The Respondent is the person against whom the Complainant has filed a complaint alleging misconduct.  According to the new Title IX Regulations, “Respondent” is defined as “an individual who has been reported to be the perpetrator of conduct that could constitute sexual harassment.”

Affirmative Consent: The Regulations do not impose a definition of consent. However, in California, schools and universities must apply the “affirmative consent” standard in all Title IX cases.  Affirmative consent is consent that is “voluntary, clear and knowing” and is given without intimidation or coercion. Affirmative consent can be revoked at any time and must be ongoing throughout the sexual activity.  A Complainant cannot give affirmative consent if they are incapacitated.

Incapacitated:  A person will be considered “incapacitated” for purposes of Title IX if they are unable to provide affirmative consent because they are asleep, unconscious or lack the physical or mental ability to make rational or informed judgments.

Sexual harassment: The Regulations govern a school’s or university’s response to allegations of sexual harassment.   Sexual harassment is defined in the Regulations as conduct that falls into one of three categories: (1) When a school or university employee conditions the student’s receipt of an aid, service or benefit on a student’s participation in “unwelcome sexual conduct”; or (2) If the alleged unwelcome conduct is understood by a reasonable person to be “so severe, pervasive and objectively offensive” that it denies the individual access to the school’s or university’s education programs or activities; and (3) the alleged conduct meets the definition of sexual assault, dating violence, domestic violence or stalking as outlined in the Regulations.

Stalking:  Repeated conduct directed at an individual that would cause a reasonable person to fear for their safety or the safety of others or cause the person to suffer substantial emotional distress.

Retaliation:  Acts of intimidation, including threats, against a student or employee based on their report of sexual misconduct or their participation in an investigation.

Preponderance of the evidence: An evidentiary standard applied in most Title IX investigations and related proceedings.  The Title IX Regulations allow each educational institution to adopt either the “preponderance of the evidence” or “clear and convincing” standard for Title IX matters. However, there is one caveat - whichever standard the school or university adopts for its Title IX proceedings must be consistently applied to proceedings involving both students and employees.

When an investigator or hearing officer applies a “preponderance of the evidence” standard, it indicates it is “more likely than not” that the alleged conduct occurred and that the evidence on one side outweighs, or is more than, the evidence on the other side.

Clear and Convincing: While the clear and convincing standard is less frequently applied in Title IX proceedings, this standard is met when the evidence indicates it is highly probable the alleged misconduct occurred.

Supportive Measures: Supportive measures are defined in the Regulations as “non-disciplinary, non-punitive individualized services offered as appropriate, as reasonably available, and without fee or charge to the complainant or the respondent before or after the filing of a formal complaint or where no formal complaint has been filed.”

The purpose of supportive measures, as outlined in the Title IX Regulations, is to “restore or preserve equal access to the [school’s or university’s] education program or activity without unreasonably burdening the other party.”  Some examples of supportive measures could be changes to university housing arrangements, No Contact Orders, or alternate class arrangements.

Title IX continues to be an evolving area of the law.  President Biden recently indicated his administration will issue proposed changes to the Regulations during his time in office.  While the future of Title IX may be unpredictable, VM closely monitors any changes to Title IX.  At VM, our attorneys have a wealth of knowledge in all aspects of Title IX investigations and hearings in order to provide effective, detailed and thorough reports and decisions for our clients.