Understanding

The legally applicable definition of Sexual Harassment, a critical component to any Title IX investigation and disciplinary hearing at both the collegiate and K1-12 school level, may or may not comport with what many of us understand this type of unwelcomed behavior to mean. However, irrespective of what a student or faculty member at a university or high school may deem this type of conduct, for the purposes of Title IX, there is a specific definition. Utilized by administrators tasked with upholding the law, advisors and school disciplinary attorneys representing complainants or respondents, and ultimately a decision maker or fact finder should the matter reach that stage of the process, understanding the parameters and scope of this term is critical.

Interpreted quite broadly, for one to commit an act of this nature one must first perpetrate a wrongdoing on the basis of sex. Ultimately, the behavior in question must also compromise equal access to education. The three types of transgressions include:

• Quid pro quo harassment by an employee of the college, university, primary school or similar academic or educational institution.
• Any conduct that is not welcomed by the recipient that is so objectively offensive, significant and pervasive, as viewed by a reasonable person, that the complainant, irrespective of gender, is denied equal access to his or her education. This standard is used when a Title IX Coordinator, investigator or decision maker examines unwelcomed sex-based acts not of a physical nature but involving speech or expressive conduct in the context of free speech and academic freedom. Again, and to be clear, there is a reasonable person standard built into this type of misconduct.
• Any incident of sexual assault, as defined by the Clery Act, including sexual violence involving physical acts committed without consent. Whether the victim is otherwise capable to give consent if he or she desired or is unable due to age, intoxication, intellect, or some other deficiency, is inconsequential. No consent means no consent. This prohibition also includes dating violence, domestic violence, and stalking as defined by the Violence Against Women Act.

Whether you are a complainant or respondent, it is vital to understand that Title IX disallows misbehavior in a manner consistent with the First Amendment. Furthermore, any infraction that is deemed of the Quid pro quo variety or violates either the Clery Act or the Violence Against Women Act will on its face deprive a person of equal access. Therefore, there need not be a finding as to its severity or pervasiveness, for example.

Title IX, of course, does not apply to sexual harassment or violence that occurs anywhere and everywhere. Instead, the statute governs and provides for a cause of action where the sexual harassment at issue occurs in a school’s education program or activity in the United States. A school’s “program or activity” can be broadly applied and includes locations, events, or circumstances over which the school has substantial control over both the accused and the circumstances under which the alleged infraction occurred. This includes buildings owned or controlled by a student organization that is officially recognized by the school, such as a fraternity or sorority house. Not limited to on-campus facilities or programs, the long arm of regulation can extend anywhere the school exercises control over the activity. If a complaint fails to allege conduct that falls within this definition and/or jurisdiction of sexual harassment under Title IX, the school is required to dismiss the complaint, although the institution may still provide supportive services to those who are victims or complainants.

Having an student expulsion attorney who can identify the kinds of potential shortcomings for a victim seeking to protect him or herself from further violence and harassment or a respondent who finds themselves accused of heinous actions, is one of the most critical, early and easily-overlooked aspects of a Title IX case and process. Irrespective of where one finds oneself, if the necessary legal foundation of sexual harassment and its elements are missing or improperly presented, an allegation is doomed to fail. Should there be ample evidence, or the proper elements are merely present, it is never too early to secure the material and information you need to succeed. Whether a complainant or respondent, it is never too early to be prepared for what may be a frightening and confusing process.

The attorneys and former Manhattan prosecutors at Saland Law are here to provide the guidance and expertise necessary to identify these kinds of issues to best ensure any accusation is vetted properly and the appropriate party can present his or her case or defend against any accusations. Only with experience, knowledge and advocacy can you protect your rights throughout the disciplinary and expulsion process and Saland Law is prepared to do just that.

Call our student attorneys, disciplinary hearing lawyers and former Manhattan prosecutors at (212) 312-7129 or contact us online today.