Faculty Accused of Misconduct Must Seek Representation by an Experienced Education Attorney Immediately
Faculty Accused of Misconduct
News media have reported extensive Title IX coverage, frequently in the context of contentious allegations of student-on-student sexual violence allegations. But did you know that Title IX applies to conduct by education faculty and staff too? This discussion explores potential Title IX and related claims against faculty members.
Title IX prohibits discrimination based on sex or gender by universities and colleges that receive federal funding. Title IX has been used by students to make sexual misconduct claims against faculty as a form of sex discrimination. Education faculty members are at particular risk of being disciplined or terminated in the event of any allegations of sexual misconduct as well as other claims against them.
Title IX Claims Involving Education Faculty Speech
Faculty members have exposure under Title IX for speech framed as claims of sexual misconduct or gender discrimination. Many professors face discipline for what should be First Amendment protected speech for statements that are in any way controversial. An example occurred when a faculty member criticized the abuse of Title IX complaints against faculty at her institution. She then was accused in a Title IX complaint of retaliation for a Title IX filing against a colleague, creating a hostile environment, and chilling students from filing Title IX complaints for sexual misconduct. When she then wrote a book about her Title IX experience and the colleague’s Title IX claim, she was subjected to another Title IX action as well as a lawsuit by the accusing student for defamation.
Hostile environment claims are a long-standing feature of employment discrimination litigation under Title VII of the federal Civil Rights Act. However, when such claims are expanded to the university context through Title IX, they often arise because complainants take issue with the content of a professor’s teaching, research, or 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 or a professor using sexual language or obscenities in lectures or in casual conversation with students and colleagues.
Freedom of speech is under continuous threat at many of America’s campuses, pushed aside in favor of politics, comfort, or simply a desire to avoid controversy. Title IX has been used as one way to do this.
Title IX Claims Involving Failure to Report Confidential Communications
Another Title IX risk that education faculty members face occurs when a student comes to them in confidence and tells of facts that may constitute sexual misconduct against another professor or student. Many schools require the faculty member to promptly report the incident as a mandatory reporter with both the student’s and the professor’s name to the school’s Title IX coordinator. Faculty members have been fired for failing to do so.
Title IX Complaints Against Educational Faculty for Student Dissatisfaction
If a student is dissatisfied with a faculty member (e.g., low grade given, denial of the student’s sexual overtures, general hypersensitivity to jokes or style of behavior), a harassment complaint provides an easy opening to get retribution.
A report issued by a trade association of university faculty identified tensions between interpretations of Title IX and the academic freedom essential for campus life to thrive. It found that questions of free speech and academic freedom have been ignored in positions taken by the Office for Civil Rights (OCR) of the Department of Education, which is charged with implementing Title IX, and by university administrators who are expected to oversee compliance measures.
Different Standards May Apply for Title IX Complaints Against Faculty
College disciplinary proceedings involving students have been challenged under Title IX in court and several recent decisions have confirmed that students must be treated with due process or fundamental fairness. This includes the right to see the accuser’s documents and having the opportunity to submit questions to a hearing panel to cross-examine the accuser in a disciplinary hearing before an unbiased panel of university officials.
For education faculty, schools have been permitted to have disciplinary hearings and processes that may be more favorable to the accuser. Frequently, hearings against faculty members are processed by the office of the dean of the appropriate division according to the academic disciplinary procedures established by that division, in lieu of university Title IX procedures. Title IX procedures may contain more specific provisions for due process and fundamental fairness as a result of Title IX litigation establishing those rights.
For example, at Brown University, “The complainant, the respondent faculty member and the appropriate Senior Dean will not be present in the hearing room during the panel’s examination of witnesses.” There is no right to cross-examine either the accuser or any of his or her witnesses.
Other Laws May Negatively Affect Education Faculty
Other laws may also come into play for education faculty members. For example, if a faculty member has a sexual encounter with a teaching assistant, that could be interpreted as discrimination (either quid pro quo or hostile environment) under both Title VII and Title IX. In this day of the “#MeToo” movement, there is almost a presumption of guilt once a complaint is filed and the faculty member is forced to prove a negative.
Potential Negative Outcomes for Education Faculty
In addition to suspension or possible termination, other potentially negative outcomes of Title IX complaints against faculty can include loss of tenure; negative effects to a faculty member’s pension; issues concerning ownership of research data; the termination of grants and the resulting effect on faculty; and impact on publishing and lecture contracts. Schools can move quickly to protect themselves and a delay in seeking experienced educational counsel to assist you in the legal and publicity aspects of a Title IX complaint can cause reputational and financial harm by allowing the process to negatively advance.
Why You Should Hire a Lawyer Immediately If You Are Accused of a Title IX Violation
The takeaway is that there are a broad number of scenarios under which education faculty could face discipline or termination under Title IX even when they haven’t done anything that would strike a conventional person as misconduct. If there is even a possibility of an inquisition, including indications like a request for an “informal meeting,” agitated students, or a superior who seems to be harboring a grudge, contact us as soon as possible. Waiting to get an experienced Title IX education attorney until after things have already gone wrong may cause you to miss important deadlines or lose opportunities to protect your rights.
If you are a faculty member accused of any Title IX violation, you need an experienced Title IX education attorney as early as possible to help you navigate your way through the university’s procedures and potential liabilities.
We are nationally recognized Title IX education experts and have represented numerous education faculty members in all types of Title IX charges, alleging both misconduct and speech violations. We will be there with you and help you plot a course through what may be difficult, one-sided procedures. If your investigation lacks due process or fundamental fairness, if there is any bias on the part of the investigators or decision-makers, or if you are denied the opportunity for a full and fair hearing, we will preserve the record for a possible Title IX lawsuit against the college or university in the event of an adverse result.
There is no fee for a private consultation. Call us at 212-736-4500. We are here to help.
Because each faculty member’s situation is different, this blog does not constitute the giving of legal advice.